The recent death sentence of two whistleblowers in the Democratic Republic of Congo: Gradi Koko and Navy Malela, illustrates once again the topicality of the problem of protecting whistleblowers in a highly connected society in which access to information is instantaneous.
Since the early 2000s many cases have rocked the world: from the publications of WikiLeaks and Julian Assange, to the revelations of Edward Snowden, to the fight of Erin Brockovich. In this way, the need to give special protection to these fervent advocates of the general interest is revived.
A first step was taken in 2003 with the signing of the United Nations Convention against Corruption. Ratified by 187 States, its article 33 entitled “protection of reporting persons” states that “Each State Party shall consider incorporating into its domestic legal system appropriate measures to provide protection against any unjustified treatment for any person who reports in good faith and on reasonable grounds to the competent authorities any facts concerning offences established in accordance with this Convention”.
In France, the Sapin II law promulgated on December 9, 2016, put an end to the proliferation of sectoral approaches in this area by establishing comprehensive protection for whistleblowers. Article 6 defines the whistleblower as “a natural person who discloses or reports, in a disinterested manner and in good faith, a crime or an offense, a serious and manifest violation of an international commitment duly ratified or approved by France, of a unilateral act of an international organization taken on the basis of such an undertaking, of the law or of the regulations, or of a serious threat or prejudice to the general interest, of which it is personally aware”.
Some specific secrets are nevertheless excluded from this protection regime: these are the secrecy of national defense, medical secrecy and the secrecy of relations between a lawyer and his client. Article 8 specifies the steps to be followed in order to guarantee the protection of the report. As such, the whistleblower can only make his report public as a last resort, in the event of serious and imminent danger or in the presence of a risk of irreversible damage. Article 9 also provides for the strict confidentiality of “the identity of the authors of the report, of the persons targeted by it and of the information collected by all the recipients of the report“. Disclosing these confidential elements can be punished with 2 years imprisonment and a fine of 30,000 euros. Whistleblowers are also protected from reprisals in the professional context and article 13 introduced an offense of obstructing reporting punishable by one year’s imprisonment and a fine of 15,000 euros. The whistleblower is supported and guided in his efforts by the Defender of Rights (Défenseur des Droits in french). Internal reporting procedures must be provided in particular for legal persons governed by private or public law with at least 50 employees. The thresholds and terms of application are specified in Decree No. 2017-564 of December 9, 2016.
The protection guaranteed by the Sapin II law is therefore relatively extensive. The Lebanese whistleblower law, however, need not envy its french cousin…in theory…
Regional Context
Lebanon, like many of its close neighbours, fully acceded to the provisions of the Convention of the United Nations against corruption through Law No. 33 of 16 October 2008. In order to guarantee its effects internally, Parliament adopted Law No. 83 on the protection of whistleblowers on 10 October 2018.
Although taken rather late, this law represents a considerable symbol in a country historically plagued by corruption. It is part of a recent movement to take into account the problem of whistleblowers at the regional level. Almost all Gulf countries have specific procedures in place for whistleblowers.
Kuwait, for example, in its 2016 Law No. 2 establishing the NAZAHA (Kuwait Anti Corruption Authority, Nazaha meaning integrity in Arabic), includes the protection of whistle-blowers in paragraph 5 of Article 4 on the essential aims of this organization. Chapter 5 of the Act is also entirely dedicated to their protection and to the reporting process. It provides, among other things, but not exclusively, for the protection of the whistleblower and his entourage, the possibility of providing a new home in case of necessity, as well as the establishment of legal and administrative protection.
Far from being as successful as the Kuwaiti law, the Emirati legislation is rather nascent. Apart from the “positive obligation” for any person to reveal any criminal act present in the Penal Code, no legislation dealt up with the issue of whistleblowers. It was not until 2016 and Law No. 4 on Financial Crimes that this concept emerged. This law provides for the protection of whistleblowers against any prosecution and disciplinary action in their workplace provided that the alleged facts are verified and reported to the Dubai Economic Security Centre. The bill passed in May 2020 should allow for even greater and broader protection through a witness protection mechanism that includes whistleblowers. However, this protection remains relatively weak and divided into sectors since it only concerns the area of economic security.
The Sultanate of Oman and Saudi Arabia also, do not have a general regime for the protection of whistleblowers. Nevertheless, the Wahhabi Kingdom has had an independent National AntiCorruption Commission (also known as Nazaha) since 2011, which provides for a reporting system for corruption. It guarantees the complete confidentiality of the whistleblower’s personal information without guaranteeing him a full protection. However, it recently announced that it wants to set up a reward system for whistleblowers revealing acts of corruption.
These initiatives are still in their early stages and are very likely to evolve in the upcoming years.
But what about Lebanon?
Key elements of the original text
Lebanese law No. 83 is, on paper, relatively innovative and very complete compared to those of its Gulf neighbors. It provides for the confidentiality of the whistleblower’s information as well as extensive protection against any functional or non-functional damage that the whistleblower may suffer.
Functional damage refers to damage sustained in the workplace and that occurred as a result of the disclosure. Article 7, paragraph 1, sets out a whole list of measures deemed harmful, including dismissal, pressure or demotion of rank and salary. Any damage suffered outside the professional framework by the whistleblower or his relatives (family, employees, etc.) is also covered by paragraph 2 of this article. In this respect, any threat, retaliation or pressure, as well as any moral, physical and/or material harm are prohibited. The damage must nevertheless be directly related to the denunciation: the causal link cannot be assumed.
Article 11 complements these measures by stating that any person who inflicts damage to the whistleblower in the professional setting is liable to a fine ranging from 10,000.000LPB to 100,000.000LPB. Outside the professional framework, the whistleblower will benefit from a strengthening of criminal sanctions in this area. Anyone who refuses to cooperate with the National Commission against Corruption will also be subject to penalties of between 7 and 15 million Lebanese pounds. If it turns out that his safety or that of his relatives is jeopardized, the Authority may ask the competent authorities to guarantee their protection.
The whistleblower may also receive financial compensation and assistance in certain cases set out in Article 14, in particular if the denunciation has been beneficial to the Administration. However, this award remains subject to the discretion of the Commission and cannot exceed a certain amount, far from the advanced rewards system provided for whistleblowers in the American system. This reward can be useful in particular to encourage the population to denounce questionable practices within a culture that was originally not very favorable to denunciations and questioning of the hierarchy in the professional framework.
For what concrete application ?
However, this law which had everything of an innovative and promising project, was never concretely applied due to the slowness of the legislative process and the absence of a stable government for over a year. As a direct consequence, many laws cannot be enforced because of the lack of implementing decrees.
The central problem lies in the absence of an Authority or entity capable of receiving and dealing with complaints. Article 2 provides that the protection provided by the law can be claimed only in the event of an express alert of the whistleblower to the National Commission against Corruption. If the whistleblower chooses, for example, to reveal his findings in the press, he will not benefit from this protection. But to this day, this Commission is still not formed, thus transforming the law on whistleblowers into a law without force. Although it enjoys a material existence it is impossible for citizens to avail themselves of it.
This Commission was only created in May 2020 thanks to Law No. 175 on the fight against corruption in the public sector. With a legal personality, the Commission is financially and administratively independent and must be composed of 6 members appointed for 6 non-renewable years by government decree. Its members are divided as follows: 1 lawyer, 2 judges, 1 public accountant and 2 experts from the banking sector and public finance. At present, only half of these members have been appointed, leaving once again Law No. 83 without any prospect of close implementation.
On 12 June 2020, Law No. 182 amended the Article 9 of Law No. 83 by adding the obligation for the whistleblower to refer the matter to the competent prosecutor’s office in addition to informing the Commission in order to avail himself of the provisions of the law. This addition is relatively questionable given the inherent lack of public confidence in public administration.
The implementation of this law is therefore fundamentally compromised.
A revival project in preparation
On October 12 2020, Marie Claude Najm, former acting Minister of Justice, announced her plan to open an office dedicated to receiving whistleblower reports. Aiming to guarantee the rights given by Law No. 83, this registry linked to the Public Prosecutor’s Office at the Court of Cassation is currently being created.
This initiative is in fact the result of a joint reflection of a working group created by the Office of the Minister of State for Administrative Reform (Decision No. 33 of 30 June 2020) to ensure the proper application of the law. This working group was composed of 5 members. The Public Prosecutor’s Office was represented by the Attorney General of the Court of Cassation who delegated her representation to a General Counsel at the Court. The Ministry of Finance and the Office of the Ministry of State for Administrative Reform each had one representative. Ghassan Moukheiber, former Member of Parliament for Metn, took on the role of legal expert in the working group. In addition to participating in numerous anti-corruption bills, he also communicates with UNDP. Finally, the Ministry of Justice was represented by Ziad Mekanna, investigating judge of Mount Lebanon.
The purpose of this working group was to make recommendations to the authorities concerned on how to implement Law No. 83 and establish a dialogue between the various institutions. This group resulted in the creation of the registry based on the texts of Law No. 150/83, in particular its Article 120. This registry is attached to the registry of the Public Prosecutor’s Office at the Court of Cassation.
Ziad Mekanna agreed to give me an interview to talk more about this initiative. He told me that this registry will be made up of competent court clerks, trained to receive complaints and manage the confidentiality of information. The registry will be located in front of the Court House of Beirut and the training of the 10 court clerks should begin soon with the cooperation of UNDP. Its role will be to monitor, complete and refer the case to the Assistant Public Prosecutor in charge of corruption issues. A dedicated telephone number and an email address will be set up: complaints must necessarily be made in writing or electronically. The telephone number is used to inform and advise potential whistleblowers.
Mr.Mekanna also welcomed Amendment No. 182/2020 allowing people to benefit from the protection guaranteed by the law by seizing the prosecutor’s office. Thus, insuring the rights of whistleblowers which is necessary in order to establish a climate of trust between the Administration and the Lebanese people.
According to him, the National Anti-Corruption Commission should be established “as soon as possible”. Two magistrates, members of the Commission, were to be elected around August 7 2020, but the tragic explosion of the port and the health situation stopped all progress. In a somewhat particular context, this election finally took place on June 13th. The judges who were appointed by the electorate are Claude Karam and Thérèse Allaoui. It now remains to appoint the lawyer and the accountant. Once appointed, a decree will have to be issued so that all the members of the Commission can exercise their functions.
For the time being, the OMSAR (Office of the Minister of State for Administrative Reform) is responsible for the implementation of anti-corruption strategies pending the creation of the longawaited National Anti-Corruption Commission.
Celia FREBERT
SRDB Law Firm
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