A clarification for online users who may not have access to the full article. Because of our strong interest in climate change and issues relating to corruption, we have been in the practice of highlighting recent developments on the international scene that have important lessons for Guyana. This is done before proceeding with the substantive article. Therefore, if one reads the first few paragraphs, one may believe that there is a mismatch between the headline and the content. We nevertheless appreciate your valuable and constructive comments.]
In his new book, “Star Trek” actor William Shatner, who accompanied Jeff Bezos into space, wrote that going to space “felt like a funeral”. He stated that all he saw was death and that it was among the strongest feelings of grief he has ever encountered, including “grieving for the destruction of the Earth”. Shatner described seeing a “cold, dark, black emptiness” unlike anything on Earth:
I love the mystery of the universe. All of that has thrilled me for years…but when I looked in the opposite direction, into space, there was no mystery, no majestic awe to behold…all I saw was death.
Everything I had thought was wrong. Everything I had expected to see was wrong. I had a different experience, because I discovered that the beauty isn’t out there, it’s down here, with all of us. Leaving that behind made my connection to our tiny planet even more profound.
In 2019, ExxonMobil dismissed two of its scientists after suspecting them of leaking information to the Wall Street Journal. A federal whistleblower investigation, however, found that communication with the newspaper of alleged company violations is protected activity under the Sarbanes-Oxley Act and that the company terminated their services illegally. As a result, the US Department of Labor’s Occupational Safety and Health Administration (OSHA) ordered Exxon to immediately reinstate the two employees and pay them more than $800,000 in back wages, interest and compensatory damages.
According to an article in the Washington Post, Exxon had announced unusually high targets for extracting oil in Texas and New Mexico. The two scientists suspected that management was planning to pin on them what they considered as a potentially fraudulent forecast. They complained to Exxon’s human resources investigators that they were pressured to doctor data to make them look like the company was poised to generate billions of dollars more in oil than it was. OSHA’s Assistant Secretary had the following to say on the matter:
ExxonMobil’s actions are unacceptable. The integrity of the U.S. financial system relies on companies to report their financial condition and assets accurately. Whistleblower protection is integral to ensuring that financial disclosure laws work. As was the case in this instance, OSHA will aggressively protect the rights of employees who raise concerns related to financial improprieties or potential fraud against shareholders.
In the United States, there are more than 20 whistleblower statutes that protect employees from retaliation for reporting violations, including those relating workplace safety and health, consumer product, environmental matters, financial reform, food safety, taxation and anti-money laundering. See https://www.osha.gov/ news/newsreleases/region6/10072022.
Guyana is a signatory to the Inter-American Convention Against Corruption entered into in 1996. A key provision relates to creating, maintaining and strengthening the system to protect public servants and private citizens who in good faith report acts of corruption to the relevant authorities. However, it took 22 years for legislation to be passed to give effect to this important provision that is so vitally necessary in the fight against corruption.
Upon my return from the United Nations ten years ago, I had stated that the Government should seriously consider introducing whistleblower laws to protect individuals who report cases of mismanagement, fraud, corruption and unethical behaviour. This was at the launching of my first book on public accountability. Shortly thereafter, when I became President of Transparency Institute Guyana Inc. (TIGI), the directors agreed to renew the call for whistleblower protection legislation. TIGI also highlighted the need for legislation on election campaign financing in order to provide, among others, a level playing field for political parties contesting elections in Guyana. It was, however, not until November 2015 that the necessary draft legislation on whistleblower protection was prepared; while to date no action has been taken in relation to campaign financing.
In our articles of 3, 10 and July 2017, we had referred to the case of Nurse Sheryl Marks of the Fort Wellington Hospital who was transferred to another institution as punishment for making certain disclosures of improper conduct by a member of the Regional Administration. She did so out of fear that she would be held personally liable for administering a prescription drug in unusually large quantities. Ms. Marks was also threatened with disciplinary action for breach of confidentiality of the public service rules, although her complaint was made to her superiors, including the Minister of Health. We had quoted the following statement from TIGI on the matter:
When those who have abused their power and those who have ignored their responsibility as public officials do so with impunity while those who dare to expose wrongdoings are made to feel the consequence, it is mere lip service to the idea for those in authority to proclaim support for whistleblowers…In a very corrupt society and one in which the will of the people has been side-lined as politicians pursue narrow interests, whistleblowing is an important avenue through which corruption can be uncovered.
In a separate commentary subsequently, we had expressed the belief that the need for whistleblower protection was even greater with the discovery of significant amounts of crude oil resources that would make Guyana a major oil-producing nation. That need is even greater today, especially considering the most recent case involving certain allegations made by a police officer of cover-up of a murder case. We had also stated that since the drafting of the legislation, consultations with civil society did not take place until eleven months later in October 2016, and another nine months had since elapsed without the related Bill being tabled in the National Assembly.
We were therefore pleased that Guyana’s Protected Disclosures Act 2018 was eventually passed in the Assembly on 18 January 2018 and assented to by the President on 12 February 2018. Our disappointment, however, is that four years on, this important piece of legislation aimed at assisting in the fight against mismanagement, corruption and unethical behaviour, is yet to be operationised via an order from the Minister of Legal Affairs.
In today’s article, we highlight the key provisions of Guyana’s Protected Disclosures Act 2018.
Purpose of the Act
The main purpose of the Act is to: (i) combat corruption and other wrongdoings by encouraging and facilitating disclosures of improper conduct in the public and private sectors by persons acting in good faith and in the public interest; (ii) protect persons making those disclosures from detrimental action; and (iii) establish a Protected Disclosures Commission to receive, investigate or otherwise deal with disclosures of improper conduct. The Act applies to any disclosure made after the coming into operation of the Act where the improper conduct to which the disclosure relates occurred 12 years immediately before the coming into operation of this Act; or occurs after the coming into operation of the Act.
Protected Disclosures Commission
The backbone of the legislation is the establishment of the Protected Disclosures Commission responsible for receiving, investigating and otherwise dealing with disclosures of improper conduct. It is to consist of a chairperson and four other members appointed by the Minister. Apart from the chairperson who is required to be a judge or retired judge of the Court of Appeal or is eligible for appointment to such a position, the other members are appointed after being elected by the Assembly based on nominations from various organisations, including the Integrity Commission, Guyana Bar Association, Private Sector Commission and the Insti-tute of Chartered Accountants of Guyana. Notably absent from the list of organisations is TIGI. These members must be persons of integrity with experience in law, finance and public administration, among others.
The appointment of the chairperson and members of the Commission must not be less than one year and is subject to renewal upon expiration. The quorum for meetings is three.
Disclosures of improper conduct
An employee who believes that his/her employer or other employee has committed, is committing or is likely to commit an improper conduct may make a disclosure of the improper conduct to the Commission. Similarly, a person not being an employee who reasonably believes that a member of the Assembly, the Speaker of the Assembly, a government official or any other person with whom he/she has dealt with, is dealing with or is likely to deal with, has committed, is committing or is likely to commit an improper conduct, may make a disclosure of the improper conduct to the Commission.
It is important to note that disclosure by or of a Member of Parliament does not amount to a breach of privilege. Addi-tionally, disclosure does not qualify for protection under the Act unless it is made in good faith, in the public interest and not for personal gain. Nor is protection offered if an employee making the disclosure commits an offence in doing so.
Procedures for disclosure of improper conduct
Disclosure of improper conduct can either be made orally or in writing. In the case of the former, the member of the Commission receiving the disclosure must put it in writing and have it signed by the person making the disclosure. If a person is fearful of making a disclosure he/she may authorize someone in writing to do so on his/her behalf. Disclosure can also be made anonymously by calling the telephone hotline numbers provided, or by ordinary or electronic mail or message. In either case, the Commission must arrange a mutually agreed time, date and place for the person to make the disclosure. Where disclosure borders on matters of national security, defence or foreign policy, such disclosure must be made to the President, the Minister and the Minister responsible for public security.
Upon receipt of the disclosure, the Commission must evaluate the allegation and decide on the appropriate action to be taken.
Investigation
During an investigation, the Commission may adopt procedures as it considers appropriate, including in-person hearing, and request for information and/or documents in support of the allegation of misconduct. It can also request the assistance of experts and enforcement agencies. The latter are deemed agents of the Commission, and the failure to comply with a request from these agencies constitutes an offence punishable on summary conviction by a fine of $200,000 and six months’ imprisonment. The Commission has the powers of a Judge of the High Court in respect of attendance and examination of witnesses and in the production of documents and other relevant information.
To be continued –
