KUALA LUMPUR – The Whistleblower Protection Act 2010 does not provide absolute protection if the informant themselves are implicated in the disclosed offence.
Lawyer Muhammad Akram Abdul Aziz said that the protection promised to whistleblowers can be voided under several factors as outlined in Section 11(1) of the aforementioned Act.
He said that one of the reasons the promised protection may be nullified is if an investigation finds the informant involved in the wrongdoing disclosed.
"Whistleblowers may attempt to request authorities not to take action against them; however, the provisions of the Whistleblower Protection Act 2010 clearly stipulate the authority's right to withdraw or withhold protection in certain situations as specified in Section 11(1) of the Act," he said.
"Furthermore, it is quite challenging for authorities to justify granting protection or immunity to someone implicated in an alleged offence merely because they come forward with information."
Based on existing laws, it is difficult for the whistleblower's request to be considered, especially if made during the preliminary stages of a case without any official report being filed," he said today.
She was asked to comment on the claim of a whistleblower who alleged possession of an audio recording involving a state assemblyman discussing corruption worth hundreds of thousands of ringgit.
The individual demanded protection and not to be placed under investigation by the Malaysian Anti-Corruption Commission (MACC).
The MACC commissioner, Tan Sri Azam Baki, was reported to have said that his department has not received any official complaints thus far from any party, including the whistleblower claiming to possess the relevant audio recording.
Azam said that the lawyer representing the implicated whistleblower met with MACC officers on Oct 30, during which the lawyer only played a 17-second audio clip where several individuals are heard discussing money.
He added that the lawyer did not disclose the identity of the implicated assemblyman and was prepared to provide further evidence if MACC signed an agreement stating that his client would not be subjected to investigation.
Expanding further, Muhammad Akram said that MACC's statement indicates the case is still in its early or preliminary stages since no official misconduct report has been filed by the whistleblower.
"If that is the situation, it is difficult for MACC to consider the request for protection under the Whistleblower Protection Act 2010 because protection for whistleblowers is not absolute or applicable in all circumstances."
"Reference can be made to Section 11(1) of the Act, which provides exceptions to any protection and immunity for whistleblowers," he said.
Therefore, he added, full facts and information must first be obtained through an official report for MACC to consider whether protection can be granted to the whistleblower under the Act.
Another lawyer, Fahmi Abd Moin, said that for cases investigated under the MACC Act 2009, MACC investigators have full authority to initiate investigations and obtain all related information.
"A thorough and transparent investigation must be conducted because there is evidence in the form of video and audio recordings. These are direct evidence, and every individual recorded as well as the recorder must be questioned without any protection under the Act."
"There should be no fear on the part of whistleblowers, especially under the MACC Act, which grants extensive and unrestricted powers to any individual, including lawyers, to provide information or evidence materials if available, to assist in any corruption investigation."
"MACC needs to maintain transparency, and investigations must be carried out without any elements of protection for any individual, as corruption issues involving politicians will attract public interest in the progress of the investigation."
"Additionally, the power to decide who can be charged or made a witness depends on the overall investigation, and ultimately, the Attorney-General's Chambers (AGC) will make the decision," he added.
Fahmi said that while the Whistleblower Protection Act 2010 can ensure that whistleblowers are granted immunity, including under the MACC Act, this should not occur in cases involving corruption and political figures.