ARTICLE #58 – PROTECTION FOR WHISTLEBLOWERS IN TRINIDAD AND TOBAGO
Protection for Whistleblowers in Trinidad and Tobago
Martin Anthony George & Co.
Attorneys-at-law
(Research Assistance provided by
Darrell Bartholomew, Attorney at Law)
DISCLAIMER: Please note this does NOT constitute LEGAL ADVICE or LEGAL CONSULTATION, which you should get from your own Attorneys and this is being shared with the general public for the purposes of information and discussion ONLY.
INTRODUCTION
Whistleblowing is when an individual reports official wrongdoing taking place in an organisation or Government or State agency and can also relate to wrongdoing exposed or reported in relation to some sphere or aspect of public life and the types of activities which tend to form the basis of such reports, include financial, sexual, or other types of misconduct, corruption, discrimination and other illegal activities which can constitute misbehaviour in public Office or private enterprise. The individual who discloses those activities or ‘blows the whistle’ on the bad behaviour, is known as a whistleblower. A whistleblower is defined by Encyclopaedia Britannica as “an individual who, without authorization, reveals private or classified information about an organization, usually related to wrongdoing or misconduct (‘Whistleblower’, Britannica, https://www.britannica.com/topic/whistleblower’).
When the word whistleblower is heard, it would be no surprise if one immediately thought about some of the well-known whistleblowers in the past who have received widespread media attention. For example, Chelsea Manning, the United States Army intelligence analyst who released the largest set of classified documents in US history, a significant portion of which ended up on WikiLeaks. These documents included detailed descriptions of activities which included the torture and abuse of prisoners. Also, Daniel Ellsberg, a former US military analyst who leaked documents to the New York Times which became known as the Pentagon Papers, and which contained evidence that the administration of US President Lyndon B. Johnson had lied to the US public and to Congress about what was really taking place in the Vietnam war. There has also been the world-wide leak of “The Panama Papers” which touched and implicated individuals in every continent on the planet as the most widespread and devastating whistleblowing scandal of the century. Chuck Blazer, a former FIFA executive, co-operated with the US Federal Bureau of Investigation (FBI) as part of their inquiries into corruption at FIFA, and admitted to the FBI that he and other FIFA executives accepted bribes in return for voting for South Africa to host the 2010 FIFA World Cup. This is the same set of revelations which led to proceedings being initiated in the US which involve Trinidad and Tobago national Mr. Jack Warner, who is currently challenging his extradition to the US in our local courts. The most famous/infamous Whistleblower in the history of Mankind, is undoubtedly Julian Assange the founder of Wikileaks, who provided a platform to persons all around the world, to be able to engage in whistleblowing by being able to dump material anonymously on his site and then have it released all over the world. He has been a thorn in the side of many Governments and the US Government has sought to have him prosecuted for his “International Crimes” of disclosing private, top secret and highly classified material and documents.
Though whisteblowers are generally thought of as doing good deeds for society on the whole by exposing the existence of nefarious activities in organisations, this often comes at great personal cost to the whistleblower, as quite often, they themselves end up being charged for criminal offences, and some are even convicted. However, in certain scenarios, the law aims to protect whistleblowers, so that they may be encouraged to come forward, and once they do, these protections are activated for the benefit of the whistleblowers.
LAW
The Public Procurement and Disposal of Property Act Chapter No. 1 of 2015, which came into force on 25th April 2023, contains some built-in protection for whistleblowers. Section 40 of the Act provides as follows:
“40. A person shall not be dismissed, suspended, demoted, disciplined, harassed, denied a benefit or otherwise negatively affected because –
(a) he, acting in good faith and on the basis of a reasonable belief, has –
(i) notified the Director of Public Prosecutions, the Police, the Integrity Commission or the Office that his employer or any other person has contravened or is about to contravene this Act;
(ii) done or stated the intention of doing anything that is required to be done in order to avoid having any person contravene this Act; or
(iii) refused to do or stated the intention of refusing to do anything that is in contravention of this Act; or
(b) his employer or any other person believes that he will do something described in paragraph (a).”
This provision essentially means that an employer is not allowed to harass, ostracise, retaliate or victimise an individual who has submitted a whistleblowing complaint or is otherwise a party to the whistleblowing process. If they do so, and they are found guilty of such, they are subject to disciplinary action by the Office of Procurement Regulation, the body established by the Act to regulate public procurement.
There is also a provision in the Data Protection Act Chapter 22:04 which provides protection for whistleblowers. Section 99 of the Act states:
“An employer whether or not a public body, shall not dismiss, suspend, demote, discipline, harass or otherwise disadvantage an employee or deny that employee or deny that employee a benefit because–
- the employee acting in bad faith, and on the basis of reasonable belief has–
- notified the Commissioner that the employer or any other person has contravened or is about to contravene this Act;
- done or stated the intention of doing anything that is required to be done in order to avoid having any person contravene this Act; or
- refused to do or stated the intention of refusing to do anything that is in contravention of this Act; or
- the employer believes that the employee will do anything described in paragraph (a).”
The Government is currently attempting to revamp whistleblower protection law in Trinidad and Tobago, in the form of the Whistleblower Protection Bill 2022, and the progress of this Bill shows that its second reading took place in the House of Representatives on or around 4th February 2022. This Bill has in its preamble that it is “an Act to combat corruption and other wrongdoings by encouraging and facilitating disclosures of improper conduct in the public and private sector, to protect persons making those disclosures from detrimental action, to regulate the receiving, investigating or otherwise dealing with disclosures of improper conduct and to provide for other matters connected therewith”. So far, it appears that the Government has been unable to have this Bill passed in the House of Representatives, as a three-fifths special majority is required, meaning that the support of the Opposition is needed, and it is yet to be provided. Part III of the Bill sets out the protections afforded to whistleblowers, including the prohibition of the taking of detrimental action against a whistleblower who makes a protected disclosure, in addition to granting a whistleblower who makes a protected disclosure, immunity from criminal, civil and disciplinary proceedings.
In the US, there are a variety of different laws operating across different sectors which all have as their purpose the shielding and safeguarding of whistleblowers. The Whistleblower Protection Act protects Federal employees or applicants for Federal employment from retaliation for making protected disclosures. The Mine Act prohibits the discrimination of miners, applicants for employment and representatives of miners for exercising statutory rights especially concerning safety or health activities, such as identifying hazards and requesting that inspections be performed, and it even extends to the worker being able to refuse to work in unsafe situations. The Tax Relief and Health Care Act protects whistleblowers who expose persons and organisations engaged in tax fraud, and a notable feature of the whistleblower provisions in this Act is that it provides for the whistleblower to potentially receive a percentage of the money recovered by the Internal Revenue Service (IRS).
In the United Kingdom, there is the Public Interest Disclosure Act 1998, the pinnacle of UK whistleblower legislation, which protects whistleblowers from detrimental treatment by their employer due to them having made a public interest disclosure. There is also a relationship between whistleblowing procedures and the Bribery Act 2010, as a company may attract criminal liability for failing to prevent bribery committed by an associated person, and in terms of the Criminal Finances Act 2017, corporate criminal liability may be imposed on a company for failing to prevent the facilitation of tax offences.
WHISTLEBLOWER PROTECTION IN PRACTICE
Though the Whistleblower Protection Bill 2022 (and its previous 2015 incarnation) has yet to be passed, there have been many instances of persons coming forward to disclose questionable transactions and activities which are alleged to be corrupt. From as far back as Gene Miles and the Gas Station Racket, the Lock-Joint corruption scandal, WPC Bernadette James and also PC Salvary; Trinidad & Tobago has had a long history of Whistleblowers, but as Gene Miles, WPC Bernadette James and PC Salvary all discovered to their detriment – Whistleblowing in T&T can be a very dangerous and sometimes fatal business. In 2017 it emerged that the contract between the Government of Trinidad and Tobago through the State owned Port Authority of Trinidad and Tobago (PATT) of the one part and Bridgemans Services Group LP of the other part to charter the marine vessel Ocean Flower 2 had been cancelled amid a backdrop of allegations of corruption, mismanagement and a failure to follow proper procurement procedures. In the fallout from this incident, a senior member of the management team of the PATT was suspended in relation to claims that they may have been responsible for leaking sensitive information about the charter deal to the media. The life of a Whistleblower in T&T is a lonely, dangerous and difficult one.
In 2012, during the CLICO/HCU Commission of Enquiry into the collapse of the two financial institutions, Mr. Anthony Pierre, former Head of the Credit Union Supervisory Unit at the Ministry of Finance, gave evidence that a member of the Hindu Credit Union (HCU) Board had actually called the Ministry of Finance shortly before the Credit Union’s collapse, to expose what the Board member felt were irregularities and improprieties of a financial nature. Mr. Pierre added that this whistleblower even sent an unsigned letter to the Ministry of Finance regarding the matter. Some of the information disclosed by this whistleblower involved valuation reports for properties being fabricated, property purchases taking place without following proper procedures, and secret scholarship awards, all of which appeared to have contributed to the demise of HCU and all of which appeared to be borne out as factual occurences.
In relation to what seems to be the never ending litigation between the National Infrastructure Development Company Limited (NIDCO) and contractor Construtora OAS S.A., taking place before tribunals, Courts and even the Courts in England, a public servant exposed irregularities with respect to the contract between the parties for work to be done on the Solomon Hochoy Highway Extension Project. The contract, which allegedly underwent modification on the eve of the 2015 General Election, had a crucial clause removed which, had it remained in place, would have arguably avoided much of the litigation which took place subsequent to the contractor’s bankruptcy, and would have better protected the interests of NIDCO and the Government of T&T. It was reported that the relevant clause in the contract required that in the event of the contractor’s bankruptcy, the insurance bonds used as security for the contract would belong to NIDCO. In December 2022, in the latest chapter in the saga, our local Courts ruled in favour of NIDCO, with the result being that the sum of Nine Hundred and Twenty-One Million Dollars ($921,000.00) which was to be paid to the contractor, was no longer payable, resulting in major savings for the taxpayers of T&T.
Recently, Farley Augustine, the Chief Secretary of the Tobago House of Assembly exposed and played on the Assembly floor, a video recording of one Mr. Akil Abdullah whom he claimed to be a Whistleblower allegedly in possession of evidence of a “plot” by high Government Officials, the Commissioner of Police and a noted Senior Counsel – all supposedly conspiring to bring down the current THA Administration. The Honourable Kamla Persad Bissessar, leader of the Opposition, has called publicly for Police protection for this alleged Whistleblower as she said his life could be in danger. Had there been proper legislation and protection in place in Trinidad and Tobago with respect to the whistleblowers, it is possible that this may not even have arisen as an issue and there may have been more persons willing to come forward as Whistleblowers and to do so publicly. In the absence of the Whistleblower Protection Bill being made law, it is arguable that whistleblowers may continue to feel like on a personal level they are better served by staying quiet, as the fear of persecution, victimisation, retaliation and even death, all remain very real and tangible here in Trinidad & Tobago in the absence of greater legislative protections and safeguards for whistleblowers.
© 2023 MARTIN ANTHONY GEORGE & CO
Protection for Whistleblowers in Trinidad and Tobago