Universal whistleblowing law: Market mixed over need for it in Singapore

Singapore

SINGAPORE does not have an over-arching whistleblower protection law, but whistleblowers of certain offences are protected under specific legislation, which provides a more targeted approach, according to legal experts.

Corporate governance advocate, Associate Professor Mak Yuen Teen of the National University of Singapore Business School, believes that the absence of a comprehensive whistleblowing protection policy has kept complainants at bay for fear of reprisal.

"Countries that are serious about encouraging employees to come forward have separate robust legislation, not vague, incomplete, piecemeal protection scattered in different places. Protection from civil liability such as defamation suits is part of that," Prof Mak said.

He believes that complainants will still be afraid to expose misconduct or fraud as there are many ways companies can retaliate. While the whistleblowing policy is currently embedded in the Code of Corporate Governance, it has no teeth. Singapore Exchange Regulation (SGX RegCo) plans to consult the market on hardcoding the policy into its Listing Rules.

Many companies also do not have proper procedures to handle complaints.

"Whistleblowers are often ignored or victimised, even in companies and countries with supposedly robust policies and regulation. I have encountered employees in listed companies, not-for-profit entities and universities too fearful to raise concerns," the professor added.

A reader of The Business Times agreed: "Having strong legislation instead of ad hoc protection will encourage more reporting."

Adrian Chan, Partner, Head of Corporate at Lee & Lee, said in Singapore, whistleblowers of certain offences are protected under specific legislation. For example, Section 36 of the Prevention of Corruption Act ensures that the identity of a complainant as to a corruption offence will not be disclosed even during court proceedings. This is subject to exceptions such as if there is a wilfully false statement. Whistleblowers on the physical conditions, safety measures and hazards of a work environment are protected under the Workplace Safety and Health Act.

"Much has been said about how so many other countries have enacted universal whistleblower protection legislation, including Australia, the United Kingdom and many Organisation for Economic Co-operation and Development jurisdictions. Even Malaysia passed its Whistleblower Protection Act as far back as 2010," Mr Chan said.

"So with these moves by the SGX, does Singapore still need such laws? I think that the reasons for the authorities deciding thus far not to enact such laws have not really been sufficiently ventilated or discussed and this deserves another closer look," he added.

Asked if Singapore needs separate legislation and protection from civil liability to encourage more whistleblowers to come forward to expose misconduct, Hamidul Haq, Partner, Commercial litigation at Rajah & Tann, said the law on defamation already protects whistleblowers who lodge a complaint expressing a genuine concern in good faith, even if the subject of the complaint turns out to be ultimately unsubstantiated from an evidential perspective.

"From a policy viewpoint, any such legislation cannot offer blanket protection because the law should not offer protection to someone who has made a deliberately false and malicious complaint for a collateral purpose, to the detriment of party accused," Mr Haq said.

He believes certain laws in Singapore - including the anti-corruption and anti-money laundering laws - offer excellent protection to whistleblowers in that their identities and complaints cannot be disclosed even in a court of law.

"However, there are always policy implications in enacting such laws. As mentioned, the law should not offer protection to a complainant who has lodged a deliberately false complaint with the intention of causing harm," Mr Haq said.

"Existing criminal legislation protects whistleblowers from harassment, threats and harm. There is adequate civil recourse available to complainants who fear reprisal in the workplace," he added.

That said, he stressed it is critical for every whistleblowing regime to put in place safeguards to protect the identities of the complainants.

Ultimately, hardcoding the whistleblowing policy into the Listing Rules will be helpful.

"As part of the listing rules, the onus is on the companies to ensure that they put in place not just a reliable system for complaints, but also all adequate safeguards to protect the whistleblowers," Mr Haq said.