Newsletter
Draft Whistleblower Protection Bill to Give Whistleblowers Encouragement and Reassurances
On May 2, 2019, the Executive Yuan passed the Whistleblower Protection Bill, drafted by the Ministry of Justice,to encourage individuals to raise the alarm on internal malpractices in good faith and with reasonable facts and evidence; to protect their rights; to eliminate the fear of retribution; and to effectively deter internal irregularities of government agencies and private enterprises. This event marks a milestone in the building of a comprehensive whistleblower protection system in Taiwan.
Key points in the Whistleblower Protection Bill
1. Malpractices in the public or private sector are within the purview of the Bill
The malpractices defined by the Whistleblower Protection Bill (“Bill”) refer to malpractices of government agencies and private entities. Malpractices of government agencies include government employee corruption and malfeasance, and crimes and irregularities affecting national economy and people's livelihood, or jeopardizing public health, safety, or interest. In answer to the people’s needs, issues over labor, finance, environmental protection, social interest, and food safety, which concern public interest and have attracted considerable public attention, are brought within the purview of the Bill as private-sector malpractices. (Article 3)
2. Definition of whistleblower is expanded
To provide more protection to those who inform, whistleblowers under the Bill include individuals hired, contracted or entrusted to carry out work. (Article 5) The threshold for whistleblowing is existence of an activity that supports a whistleblower’s judgment based on the current circumstances and that an average person can reasonably suspect to constitute a malpractice. To prevent abuse of the whistleblowing mechanism, whistleblowers are required to reveal their identities. (Article 5)
3. Two-tiered reporting mechanism
The first entity receiving whistle-blowing reports should also include the entity the whistleblower belongs to. The purposes of whistle-blowing are to pursue accountability and more importantly, to prevent. For instance, if government agencies and private entities are given the opportunity to investigate and immediately review and make corrections, malpractices can be prevented or contained. That is why Article 4 of the Bill states that the supervisors or the heads of office, or persons designated by either of them, prosecutors, police, authorities in charge of the relevant industries, the Control Yuan, or competent ethics departments shall be the first entity to accept whistleblowers’ reports. The second entity to accept whistleblowers’ reports refers to elected representatives, news media, or public interest groups. Whistleblowers may report to those entities only when they fail in reporting to the first entities. (Article 6)
4. Protection of whistleblowers’ and quasi-whistleblowers’ right of work, and prohibition against retaliation
Protection shall be given to the right of work of not only whistleblowers but also quasi-whistleblowers, including individuals cooperating with investigators, acting as witnesses, or refusing to participate in the planning or implementation of malpractices. Intentional retaliation or adverse actions against a whistleblower or quasi-whistleblower are prohibited. (Article 7) Where any adverse actions concerning employment are taken against a whistleblower or quasi-whistleblower, the whistleblower or quasi-whistleblower is vested with an independent right to claim restoration of the original condition and payment of damages, including reinstatement, payment of salary due to the individual, and damages for infringement of the whistleblower’s or quasi-whistleblower’s moral right. (Article 7) The Bill sets forth a time limit of six months for whistleblowers or quasi-whistleblowers who are government employees to exercise the right to claim damages, and for those who are not government employees to exercise the right to claim restoration of the original condition and damages. Such right shall be extinguished if not exercised within six months, but claims based on other civil laws are not subject to the time limit. (Articles 9 and 10)
5. Allowing amicus curiae to assist whistleblowers in attack and defense proceedings
As protection of whistleblowers concerns public interest, court decisions have a profound impact. That is why an amicus curiae is allowed in court. If necessary, upon the consent of the parties, the court may have a bar association, a public interest organization, a business association, a union, a competent authority, or a prosecutors’ office comment on legal or factual issues during the trial of the case for the court’s reference in establishing facts and applying laws.
6. Exemption of whistleblowers from legal liability
If a whistleblower discloses to the entity accepting his/her report any state secrets, trade secrets or other matters he/she is legally required to keep confidential when uncovering a malpractice, the whistleblower shall not be held liable for divulging secrets. (Article 12) Where a whistleblower is a principal offender committing or an accomplice assisting in committing an offense involved in the malpractice being disclosed, if he/she testifies during investigation or trial, and the prosecutor can prosecute other offenders or accomplices because of the testimony, he/she may be exempt from criminal responsibility upon the prior consent of the prosecutor. (Article 13)
7. Protection of the personal safety and identities of whistleblowers
Where whistleblowers are willing to testify during investigation or trial, they and their spouses, lineal blood relatives, or those with whom they have a close relationship may be given personal protection under the Witness Protection Act. (Article 14) The entity accepting or the person processing a whistleblowing case shall keep confidential the whistleblower’s identity, and shall not disclose it without the whistleblower’s consent. (Article 15)
8. Maintenance of whistleblowers’ rights, and the exceptions
Where a person blows the whistle on a malpractice on the basis of facts he/she reasonably believes rather than intentionally or maliciously make false statements, he/she shall be legally protected even if the information disclosed is found baseless through investigations. (Article 16) Where there is more than one whistleblower on a case, and some or all of the information disclosed by one is the same as that disclosed by the others, all the whistleblowers shall be legally protected. However, out of consideration for equitable distribution of state resources, people who blow the whistle on cases already made public or that they know have been disclosed by other whistleblowers shall not be given protection under the Act. (Article 16)
When the Ministry of Justice started drafting the Whistleblower Protection Bill, Lee and Li, Attorneys-at-Law actively attended the public hearings and seminars on the Bill and gave suggestions on the issues to be covered. After the Whistleblower Protection Bill is ratified by the Legislative Yuan, private enterprises will have to create a proper internal reporting system, informant protection protocol, and internal procedures for investigating and handling reported cases. Lee and Li is capable of offering comprehensive services in this area as it has helped numerous clients set up internal reporting systems and investigate reported cases.