[SCMP Column] Praise Whistle-blowers

January 14, 2017


A blizzard of serendipitously linked activity has caught my attention over the past week, converging on one common thread. Ranging from the image of a profoundly uncomfortable Donald Tsang being prosecuted in a Hong Kong court, to salacious claims against Donald Trump; from complaints over the failure of Hong Kong’s Competition Commission to capture any high-profile scalps, to the Civil Aviation Department pulling police in to investigate leaks about its new air traffic control system, what was that common thread? Whistleblowers.

Admire them or revile them, they seem to be influencing our lives everywhere, and have certainly hogged the news of late. Donald Tsang would almost certainly not be in the dock (nor Raphael Hui before him). The HK Competition Commission (and counterparts across the world) would rarely unveil any cartels or price fixing. The CAD’s problems with its new air traffic control computers would be unknown to us. And Donald Trump? Perhaps the less said the better.

From Edward Snowden and Julian Assange, to shadowy Russian hackers who were allegedly attempting to subvert the outcome of last November’s US Presidential election, attitudes on whistleblowers range widely: champions of transparency and press freedom, or enemies of the state bent on subverting our societies.

Whatever your view, certain things are clear. First, whistleblowing has been around for a very long time. The False Claims Act, perhaps the first formal US legislation to incentivize whistle-blowing, was enacted to punish price-gouging among defence contractors during the American Civil War.

Second, many truly bad things would never have come to light without a whistleblower, and organizations like Hong Kong’s ICAC, or any Competition Commission would achieve little. President Nixon would never have been impeached. The Association of Certified Fraud Examiners recently reported that 39% of all successful prosecutions for fraud or corruption would never come to light without insider tip-offs.

And third, whistleblowers almost always pay a terrible personal price for deciding to blow the whistle – no matter how honourable their intentions, no matter how terrible the transgressions revealed.

We may remember Bernstein and Woodward of Watergate fame as the heroes who relied on whistleblowers in the US government to unseat a corrupt President Nixon. But far more normal is Stephanie Gibaud, the former marketing manager of Swiss bank UBS in France, who went public with details of money laundering and tax fraud amounting to billions of Euros: “Everything is swept away; your career, your health, your money, your family,” she said: “Why do you have to suffer so much and be so isolated when you tell the truth and you are fighting for the common good?”

The reality is that most people – whether inside companies or institutions – are conflicted and schizophrenic about whistleblowers. Many work contracts explicitly bind you to confidentiality and make whistleblowing a sackable offence. Corporate cultures of loyalty and trust regard people who go public with grievances as treacherous – snitches, sneaks and definitely not “team players”. Even the management guru Peter Drucker talked of whistleblowing as corporate betrayal.

Paradox, then, that most research has discovered that traditionally, whistleblowers tend to be conservative, devoted to their work, and committed to their organizations. More often than not they act out of a deep sense of public duty, and go public only after exhausting internal complaint channels.

It is moot, however, whether the danger of whistleblowing has deepened as companies have evolved into sprawling multinationals in which job mobility reduces local work “roots”, in which loyal lifetime careers have become less the norm, and as increasingly frequent mergers and acquisitions dilute company loyalties.

Despite the schizophrenia towards whistleblowing, the emerging professional consensus is that big organizations should encourage it, and should provide strong and unthreatening channels for concerns to be voiced.

As the UK Institute of Chartered Accountants noted: “Effective whistleblowing arrangements should act as a deterrent to malpractice, encourage openness, promote transparency, underpin risk management systems in a company, and help to protect the reputation of the company and senior management… It provides an essential safety valve.”

Most legal systems still strongly prefer for anyone with grievances or concerns to exhaust internal channels, but see occasions when it is right to go public. First, you have to have tried and exhausted internal channels, and should only go public when you have good reason to believe they can’t function. And second, the grievance must be very serious. Even then, the law will insist that you have no ulterior or malicious motive.

So a company or other institution that does not put in place robust and trustworthy internal channels for staff to voice concerns is asking for trouble. That perhaps explains why a low-profile academic group in Hong Kong called the Higher Education Integrity Concern Group has recently emerged and is interrogating candidates in the election for our future Chief Executive on whether they are willing to introduce a new whistleblower protection law in Hong Kong. The leading voice in the movement is Roger Wong, who was sacked as an assistant professor in HK University’s Chemistry department when he complained internally that his supervisor was falsifying research results (Prof Wong now has a position at the Baptist U).

Whether Hong Kong truly needs a specific whistleblower law is open to debate. The ICAC, which brought the cases against both Donald Tsang and Raphael Hui to court, depends heavily on the Prevention of Bribery Ordinance and carefully created whistleblowing arrangements, and has over its 43 year history built a formidable reputation worldwide for cracking down effectively on corruption.

There may be complaints about the failure of the newly-minted Competition Commission to unveil any blockbuster prosecutions in its one year history, but my sense is that these complaints are premature. Whether 2017 brings more drama has yet to be seen – but almost certainly any drama the Commission provides will have been built on whistleblowers. Love them or hate them, they are an indispensable part of our lives.
 
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