'Piipl ded fi less dan dat!'

Peta-Anne Baker , Contributor

Would the Armadale tragedy have been prevented if the Protected Disclosures Act (PDA), popularly known as the whistleblower legislation, had already been enacted into law? Would knowing about the protection offered by the law have given the persons who knew about the situation at Armadale and who perhaps had tried to get corrective action taken without success, the confidence to come forward and make matters public?

The Protected Disclosures Act (PDA) 2010, which is making its way through the Jamaican Parliamentary review process, came into being because Jamaica signed on to anti-corruption conventions developed (separately) by the United Nations and the Organisation of American States. Truth be told, support from the major donor organisations is increasingly tied to governments' implementing certain measures. The Access to Information Act and the Corruption Prevention Act, both passed in 2001, are also indicators of this.

While there are interests here in Jamaica which had been advocating the passage of legislation in this area, the big push came more from external forces than internal ones.

The Jamaican PDA sets out whose interests are protected and what kind of disclosures people can make and claim protection from victimisation. Basically, the law will provide protection to employees of public and private-sector organisations who, being aware of some act of wrongdoing in their organisation, make a report to an internal or external authority in an effort to have the situation corrected. It is not only illegal activities about which a report can be made.

Unethical activities

Unethical, but not necessarily illegal activities are also covered. So, for example, a physician who repeatedly fails to advise his patients that a less expensive treatment is available for a medical condition because his wife is the sole agent for the more expensive product, is not breaking the law, but is acting unethically.

The limitation of the PDA is that it would only be the doctor's nurse or some other employee in his practice who could report him to the Medical Council. The pharmacist, who regularly dispenses the needed item and is aware of this situation,  cannot, as currently formulated, claim protection under the Act.

The matter of who is protected under whistleblower legislation is the subject of much debate. The obvious intention is to provide support to persons - 'employees' - in public and private-sector organisations who become aware of wrong-doing. (Interestingly, the person who brought the Trafigura transaction to light might not have been covered by the PDA if it had existed at the time, because an important caveat is that the person making the disclosure must show that they derive no personal benefit from their action.)

However, the failure to afford protection to non-employees, for example to business or professional colleagues who could become privy to wrongdoing, reduces the number of persons who could contribute to the fight against corruption. A person in an employee-employer relationship is in a vulnerable position, but the use of innuendo and outright slander which could be deployed against professional or business associates who report wrongdoing can destroy reputations and livelihoods. The PDA affords no protection to non-employees. It remains to be seen if the legislators will adopt Jamaica Employers' Federation president, Wayne Chen's proposal to exclude persons such as household helpers.

Anti-informer culture - not just in Jamaica

Studies conducted in a wide cross-section of countries have found that notwithstanding the passage of legislation to protect whistleblowers, most persons who decide to take this step at a minimum end up becoming the villain of the piece. Organisations instinctively close ranks. For example, the English surgeon, Stephen Bolsin, deliberated for four years before deciding to go public about problems with the procedure used in paediatric cardiac surgery in a particular health region in England.

In fact, it was not until he found another job in Australia that he went public about the problem and reported the matter to the General Medical Council in England. Prior to that, he made strenuous efforts within the hospital where he worked to get the practice changed, all to no avail. The problem persisted although children were known to die as a result of the use of the particular technique. One wonders what staff in hospitals here in Jamaica know that institutional pressures cause them to keep silent about?

In March this year, six years after the fact, three men were convicted for murdering a young Indian engineer, Satyendra Kumar Dubey, who had called attention to corrupt practices involved in a major highway-construction project in his country.

Dubey's murder

Dubey's murder is widely attributed to his efforts to bring to a halt the practices he had uncovered. When reports made to his immediate superiors yielded no result, Dubey wrote directly to the prime minister. Despite his request for his identity to be kept secret, his report was almost immediately made known to those who were the subject of his allegations. He was murdered a few months later and although it has not been proven, most people believe that his death was connected to his action.

Fear of the consequences (victimisation, ostracism, death threats if not death itself) is one of the main factors informing an individual's willingness to blow the whistle. In a society such as ours where murder is easily solicited and the capacity for constructive resolution of differences limited, this is an important consideration. Another consideration is whether the object of the report is a peer or a superior. People are less willing to report a superior. A final and telling factor is the perceived fairness and consistency in dealing with reports of wrongdoing. When workers can see that most, if not all reports are investigated with the same rigour and penalties handed out without favour, they are more willing to report acts of wrongdoing that they know about.

Creating ethical organisations

A not surprising finding in several studies is the fact that workers are more likely to report misconduct in organisations that have codes of conduct which are known to and understood by all members of the organisation and which have transparent procedures for receiving and dealing with any reports of wrongdoing. The opportunity to make anonymous but substantiated reports also has a positive impact. Developing an appreciation of ethical and not just illegal behaviour is relevant here. Some studies found that persons were less willing to report unethical behaviour; one might wonder whether this was related to a limited ability to grasp the significance of unethical actions. Recent remarks that certain actions "broke no laws" and are therefore of no great moment lend support to this concern.

Ethical standards arguably have a wider remit than do legal ones. They are especially relevant in social-sector organisations such as schools, social-service agencies, children's homes and hospitals, to which the current legislation seems to pay scant regard. Much of the misconduct in these organisations is unethical before it becomes illegal. Enunciating clear standards of behaviour for these settings is urgent and important.

How would the principle of the best interests of the child, which is the foundation of the Child Care and Protection Act be translated into action in an educational setting for example? What implications would the implementation of a child's right to participation have for the nature of the communication between teacher and student? What would the principle of fairness look like in relation to police actions and judicial decisions related to young men who wipe windscreens at traffic lights compared with actions by the same authorities in relation to young men who use the public thoroughfare for drag racing in million-dollar cars? How does respect for the dignity and worth of the person and the right to self-determination get translated in senior citizens' homes run more for profit than for care?

The PDA does need to be passed into law and it needs to have the widest possible remit and afford the strongest possible protections to those willing to come forward and "tell what they know". However, we need to appreciate that this single piece of legislation will not automatically reduce the incidence of corruption in private or public, commercial or social organisations.

Achieving that objective is going to require strengthening not just the ethical sensibilities of employers and employees, but also effecting the kind of organisational change which will ensure that when confronted by those who do wrong, we as individuals will 'do the right thing'.

Having the protection afforded by whistleblower legislation can make a difference. Knowing that my organisation acts on the basis of principle, as much as from self-interest will have an even greater effect. Otherwise, there will be many more Armadales while those who try to make a difference will be transferred to 'Never Never Land', be passed over for promotion or will migrate to relieve their own frustration or fear.

Dr Peta-Anne Baker is the coordinator of the Social Work Programme at the University of the West Indies, Mona. She may be contacted at pab.ja2009@gmail.com or columns@gleanerjm.com.