Research Proposal

THE LEGAL IMPACT ON

WHISTLEBLOWERS IN
DISCLOSING OFFICIAL
SECRETS AND PROTECTION
SOUGHT UNDER THE
MALAYSIA
WHISTLEBLOWERS
PROTECTION ACT 2010
(WPA 2010)
1

Presented By,

NADIATUL NAJWA BINTI JALALDIN

(2015785723)
SHAFIQAH BALQIS BINTI ADNAN
(2015954523)
ZAIRUS EFFENDI BIN SUHAIMI
(2015503549)
DORA BINTI AHMAD
(2015564741)

MASTER OF LAWS (LL.M)

UNIVERSITI TEKNOLOGI MARA

FACULTY OF LAW

May 2016
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WHATISWHISTLEBLOWING?
Whistleblowing can be defined as the disclosure by a
person, usually an employee in a government agency or
privateenterprise,tothepublicortothoseinauthority,for
mismanagement,corruption,illegalactivitiesorsomeother
wrongdoing. The spill the beans act has taken place long
agoindifferentpartsoftheworldandthelawthatcontrol
the act of whistleblowing has evolved to meet local and
currentcircumstances.

In Malaysia, in line with the Government

Transformation Programme (GTP) to tackle
corruption and promotes good governance, a
specific act was enacted to finally provide
protectiontoanypotentialwhistleblowerswhich
is

known

as

the

Whistleblower

ProtectionAct2010(WPA2010).
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PART 1

A) Research Problem
B) The Significance of Our Research
C) The Scope of our Research
D) Limitation of our Research

PART 2 -

The WhistleBlower Act 2010

PART 3 - The Official Secrets Act 1972

PART 4-

The new Amendment of the Penal

Code
Our Research Methodology

PART 1

Research Problem
Manywritershavewrittenonthesubjectmatterofwhistleblowers
butthereisnospecificarticleorwriteupontheextentofthelegal
impact on the whistleblowers when disclosing of official secrets
informationand/ordocumentstotheenforcementagencies.Withso
manyotherActsenactedbytheGovernmenttocurtailtheleaking
oftheofficialdocuments,thewhistleblowerswhogenuinelywish
to uncover any wrongdoings of the Government will be caught
under the enforcement of the other Acts in question. This has
becomeanurgingissueforthewhistleblowersasnottobecaught
ofinfringingotherlaws

Research Objectives
To analyse the legal impact that is faced by the
whistleblower when reporting a claim which involves
documentary evidence that lead to disclosing of
official

secret

documents

or

governmental

information.
WHY? Because we need to determine whether
adequate protection is given under the WPA 2010 to
protect the whistleblower from any legal repercussion
from other written laws of the country. This is very
crucial as all of us are or may be in future will be a

SCOPE OF RESEARCH

Our research will discuss about the

current provisions in the WPA 2010
and the impact of other written
laws particularly the OSA 1972
and the recent amendment in the
Malaysian

Penal

Code

LIMITATION OF RESEARCH
There are some constraints on our research
as our country has no reported case laws in
respect of action taken by or against
whistleblowers by the Malaysian Courts.
Then,

it

is

also

hard

to

find

reading

materials such as books that covers this

urging issue in relation to the application of

PART 2

11

THE LAW

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WHISTLEBLOWER
PROTECTION ACT
2010.
The WPA came into
effect on 15 December
2010.

27 SECTIONS, 7 PARTS. AND ONLY 12 key DEFINITIONS

17

WHO ARE

WHISTLEBLOWER ?
'WHISTLEBLOWER'
A person who makes a disclosure of
improper conduct based on his
reasonable belief that any other person
has engaged, is engaging or is preparing
to engage, in improper conduct
(WBP2010 s2)

. provided that such disclosure is not specifically prohibited by any written

law.

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DISCLOSURE
TO WHICH PARTY

A person may make a disclosure of

improper conduct to any
enforcement agency..
Who/What are these
enforcement agencies ?
DISCLOSURE can be INTERNAL
AND EXTERNAL...
6(1). Disclosure of improper
conduct

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WHO ARE ENFORCEMENT

AGENCIES ?
Disclosure of improper conduct must be made to an
'enforcement agency : includes any ministry,
department, agency, or other body set up by the
Federal Government of Malaysia, State
Governments or Local Governments including a
unit, section, division, department or agency of such
ministry, department, agency or body, conferred
with investigation and enforcement functions by
any written law or having investigation and
enforcement powers;
(sec 2.WBPA 203140)

THE GREAT PROTECTION ?

PROTECTING THE WHISTLEBLOWER

THREE TYPES OF PROTECTION:

1.Identities of the whistleblower and the person against whom a
disclosure is made as well as the information disclosed by a whistleblower

is

to be kept confidential by any recipient of such

information.
2.A whistleblower is conferred immunity from any civil or
criminal liability (including liability from administrative or disciplinary
proceedings) for making a disclosure of improper conduct.
3. A whistleblower is protected against detrimental
action in reprisal for a disclosure of improper conduct
made by him.
Each of the abovementioned forms of protection is also extended
to any person who is related to, or associated with, the
whistleblower.

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PART 3

18

WEAKNESS
1. SUBSTANTIVE WEAKNESSES
ISSUES

A person may make a disclosure of improper

conduct to any enforcement agency based on
his reasonable belief that any person has
engaged, is engaging or is preparing to
engage in improper conduct provided

that such disclosure is not specifically

prohibited by any written law.
Disclosure of improper conduct .sec 6. (1)

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OFFICIAL
SECRETS
ACT 1972
(OSA)

58

WBP IMPLICATION ON
OFFICIAL SECRETS
OFFICIAL
SECRET ACT 1972
ACT
WHAT OFFICIAL SECRETS I EXCLUDED FROM DISCLOSURE ?
Section 2 of OSA 1972
Official secret is any document specified in the
Schedule and any information and material relating
thereto and includes any other official document,
information and material as may be classified as Top
Secret, Secret, Confidential or Restricted, by a
Minister, the Menteri Besar or Chief Minister of a State or
such public officer appointed under section 2B.
High Court Judge Justice KN Segara in the case of Mohammad Ezam Mohd Nor vs PP had a critical view on the provision. The provision of s. 16A of the Act that a
mere certification would render conclusive any official document as official secret is inconsistent with the interpretation of official secret in s. 2 of the Act.
Section 16A appears to be creating a new category of official secret and making meaningless the official secret under s. 2. A provision such as s. 16A is obnoxious, draconian

59
and oppressive. Section 16A is, therefore, void to the extent it is in conflict with s. 2 on the interpretation of official secret.

WEAKNESSES OF WBPA 2010

(VERSUS OSA 1972 ) ?
CRITICS :
It covers not only those documents relating to national
security (which is acceptable) but not for those
documents to hide corrupt activities/wrong
doings/misconduct etc against public interests and
fair reporting etc .
Official Secrets Act 1972 appears paramount
as it prevails over other statutes including WBPA
2010.
It confers absolute discretion to the relevant authorities
to classify any official document as official secret
(and this cannot be questioned in court)
(For a different aspect, see http://www.freemalaysiatoday.com/category/opinion/2012/08/09/the-whistleblower-law-is-just-hot-air/)

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PART 4

24

MalaysianPenalCode(Amendment)
Act2014whichwasgazettedon30th
December2014.

Research Methodology
There is only one type of research methodology that we will be engaged in the
researchnamelythequalitativemethod.Thiswillrequiregatheringofinformation
byconductinglibrarybasedresearchfromreadingmaterialssuchasbooks,online
journalsandarticlesandalsocasereview.Wewillanalyze,discussandreviewthe
materialswhichwehavegatheredtobeutilisedtowardsclarificationsontheissues
of our research. In addition, an interview will be conducted with the relevant
authority namely the Prime Ministers Department of Legal Affairs Division on
casespertainingtowhistleblowersreportedtothemandthestatisticsrelatedthereto

Q & A Session

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