Anti-Corruption Day 2020: whistleblower protection program needed
Wednesday, December 9th, was International Anti-Corruption Day. The difficulty of exposing corruption makes a mechanism to support whistleblowers essential. In St. Maarten, the Integrity Chamber was established in 2017 as an independent body that would receive and investigate reports by whistleblowers. A draft whistleblower’s policy has not yet been finalized.
These are a number of topics we will be reviewing in this article by Jacqueline Hooftman.
As insiders to an organization, whistleblowers have specific knowledge, access and expertise which allow them to detect corruption or other matters of concern that might otherwise remain hidden. However, they are often in a difficult situation owing to their possible loyalty to colleagues and supervisors, contractual confidentiality obligations, and the risk of retaliation. In many instances, whistleblowers find the abusive power they have revealed turned against them, ending their careers and harming their personal lives.
Whistleblowers are often maligned and attacked as disgruntled employees, persons with a grudge against the company or opportunists seeking personal monetary reward or fame. However, studies show that most whistleblowers have motives such as integrity, altruism, care for public safety, justice and self-preservation. Given the importance of whistleblowing, should the motivation for reporting make a difference? Researchers argue that the focus should first and foremost be on the reported matter and not on the nature or motives of the whistleblower.
Indeed, the UN Convention Against Corruption makes this clear in Article 33, “Protection of Reporting Persons,” which provides that “Each State Party shall consider incorporating into its domestic legal system appropriate measures to provide protection against any unjustified treatment for any person who reports in good faith and on reasonable grounds to the competent authorities any facts concerning offenses established in accordance with this Convention.”
On St. Maarten, the law to establish an Integrity Chamber for the country was adopted by Parliament on December 13th, 2017, with nine votes for and three against. The establishment of the independent advisory body to Government was one of two conditions for receiving 550 million euros in hurricane recovery aid from the Dutch Government. The other requirement was an agreement for increased border control by the Dutch officials.
The adoption of the law was preceded by five years of widely reported discussion between the governments of St. Maarten and the Netherlands. Some members of Parliament of St. Maarten were extremely critical of the way in which the Netherlands had insisted on the law, calling it ‘abuse of power’.
Related article: Why St. Maarten has an Integrity Chamber
In a report entitled ‘The much discussed integrity chamber for St. Maarten’, law firm VanEps, Kunneman, Van Doorne explains that in the course of 2014 and 2015, various inquiries were held both at the request of the Council of Ministers of the Kingdom of the Netherlands and at the request of the Council of Ministers of St. Maarten into the integrity of the public administration of St. Maarten. “The then Council of Ministers of St. Maarten decided to tackle the integrity issues of the government of St. Maarten apparent from the report and to follow the recommendations in those reports.” One of those recommendations was to establish an independent Integrity Chamber for St. Maarten. Both the Netherlands and St. Maarten agreed that the Integrity Chamber should have an independent position with independent powers, “including the power to conduct inquiries into all relevant organizations and individuals, to report to the Public Prosecution Office, to give solicited and unsolicited advice and to submit proposals, and to report to the government of St. Maarten and the Council of Ministers of the Kingdom of the Netherlands.” The law firm elaborates: “Essentially, the Integrity Chamber was given three tasks in 2015: (i) to give solicited and unsolicited binding advice on alleged integrity violations, and to conduct concrete inquiry into integrity violations; (ii) to give solicited and unsolicited advice on integrity policy; and (iii) to oversee the implementation of advice given or proposals made.”
In December 2017, after the law was passed by a majority of votes, the then caretaker Prime Minister Rafael Boasman said Government already had a list of actions it wanted the Chamber to undertake, including the draft of a “whistleblower’s policy,” guidelines for compliance officers, methods to strengthen persons in positions of confidence and creating a public awareness programme about integrity issues.
Related article: Rafael Boasman appointed as Quartermaster for setup of Integrity Chamber
“Many on the island are skeptical that such a Chamber would succeed in turning the tide against corruption,” Juliet Sorensen, Clinical Professor of Law, noted after research on the island with a team from Northwestern University Pritzker School of Law. Their @NorthwesternLaw report on Corruption in an Era of Climate Change: Rebuilding Sint Maarten after Hurricane Irma launched in May 2018.
The team recorded the following questions: On a small island where everyone knows everyone else, will information provided to the Chamber remain confidential? Will the Chamber’s staff be trusted? Or will, in the words of one interview subject, the Chamber become a sort of ‘Supersnitch’, a foreboding presence intruding into daily life and basic expectations of privacy?
The researchers note that existing corruption is exacerbated by extreme weather, making corruption easier and more prevalent in the wake of an extreme weather event. Sorensen: “Hurricane Irma’s impact on Sint Maarten was devastating. In terms of economic damage, Irma inflicted an immediate, enormous cost – the cost of rebuilding – but also undermined the lifeblood of Sint Maarten’s economy, tourism. These tolls have been exacerbated by corruption, long a problem on the island. Efforts by providers of much needed humanitarian relief to ensure accountability and transparency in the reconstruction process have been controversial.”
As climate change ensures more and more extreme weather events, a culture shift is necessary to change focus to the long term, the researchers say. “Part of changing the culture is ensuring those on the Island have access to information, including the legal codes. Such access requires publishing information and the laws in languages understood by residents; in the case of St. Maarten, that would be English as well as Dutch.”
The difficulty of exposing corruption makes a mechanism to support whistleblowers essential, says Sorensen. “Our team experienced this firsthand in the course of our research in St. Maarten. While legal incentives to whistleblow, such as a portion of a resulting monetary settlement, and legal protections against whistleblower retaliation, in the workplace or otherwise, are necessary to encourage whistleblowing, they are not always sufficient. Our research suggests that support for whistleblowing could be furthered by a “fight against corruption” public education campaign. This could range from setting up a website where integrity breach cases are published, to implementing an anonymous and confidential complaint hotline.” Sorensen concludes: “Because corruption is covert, it is difficult to quantify unless it is exposed.”
This year’s International Anti-Corruption Day theme ‘Recover with Integrity‘ emphasizes the urgent need for countries to ensure that anti-corruption is an integral part of all sustainable development efforts, to build greener economies, end poverty, invest in women’s empowerment and gender equality, provide Universal Healthcare Coverage, and foster resilient and inclusive institutions and societies.
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Related articles:
Why St. Maarten has an Integrity Chamber – Part 1
Integrity Chamber: a work in progress – Part 2
Slowly but surely the Integrity Chamber is taking shape – Part 3
Opinion piece: Whistleblowers need plenty of guts
