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Protection of Whistleblower: Analysis of Bangladeshi Laws and

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Indian Journal of Law and Legal Volume V Issue V | ISSN: 2582-

PROTECTION OF WHISTLEBLOWER: ANALYSIS OF

BANGLADESHI LAWS AND INTERNATIONAL PRACTICES

N. M. Eftakharul Alam Bhuiya, Advocate, Supreme Court of Bangladesh, Head of

Chambers, ProLegal.

Mashrur Rahman Mahin, LLB (Honours), LLM in International Law, Jahangirnagar

University, Trainee (Corporate & Commercial Team), ProLegal

Sumaiya Sultana Ritu, LLB (Honours), Faculty of Law, Jagannath University, Trainee
(Corporate & Commercial Team), ProLegal.

ABSTRACT

Whistleblowing is a crucial mechanism for uncovering instances of corruption,

misconduct, and unethical behaviours within both public and private domains.
This article explores whistleblowing's significance and challenges, with a focus
on Bangladesh while emphasizing the importance of protecting whistleblowers
and promoting accountability in addressing misconduct at both global and
local levels. Bangladesh has made progress in its legal system since gaining
independence in 1971, however, the antiquated Official Secrets Act of 1923
remains in effect, nevertheless. This article discusses concerns and criticisms
of long-standing legislation. In 1993, the Supreme Court of Bangladesh
rendered a notable decision that showcased the Official Secrets Act's efficacy
in safeguarding state secrets. It examines the importance of whistleblowing in
various areas, such as reporting illegal activities, promoting workplace safety,
protecting the safe work environment, and upholding ethical principles. It
highlights how whistleblowing helps prevent corruption and safeguard public
finances. Legal safeguards for whistleblowers are important for disclosing
misconduct by focusing on the US laws: Sarbanes-Oxley Act, Dodd-Frank
Act, and EU's Whistleblower Protection Directive. This paper explores the
advantages of whistleblowing, such as deterring illegal activities, reducing
costs, and protecting a company's reputation, furthermore, it acknowledges the
challenges in promoting whistleblowing, such as reprisal risk and evidence
collection hurdles. This paper analyses the international framework for
protecting whistle blowers, focusing on key instruments like the UN
Convention against Corruption, OECD norms, and UNCAC. This paper
presents a comprehensive examination of the legal framework for
safeguarding

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 Indian Journal of Law and Legal Volume V Issue V | ISSN: 2582-

whistleblowers in Bangladesh, with a specific focus on the Public Interest

Information Disclosure (Protection Provision) Act enacted in 2011. The thesis
examines measures to protect anonymity, provide legal immunity, and prevent
retaliation. This study looks at a system that rewards and penalizes people for
reporting wrongdoing. Current legislation fails to protect relatives of data
whistleblowers, creating a significant barrier. This thesis examines ways to
improve whistleblower protection, update legislation like the Official Secrets
Act, and promote ethical corporate culture. The paper argues for necessary
revisions to align legislation with current norms, using recent developments in
the United Kingdom as evidence, various measures including creation of a
watchdog for whistleblowers, updating laws, and promoting ethical corporate
culture, have been suggested to take into consideration for the betterment of
whistleblowing culture. The paper concludes through highlighting on the
significance of collaboration among various stakeholders to protect
whistleblowers and improve whistleblowing conditions in Bangladesh.

INTRODUCTION

The concept of rule of law is very important for the development of any company or
organisation. There must be a mechanism restricting the arbitrary exercise of powers by
company officials off all levels and certainty must be there regarding action against any incident
of rule breaking. However, in this present world economy and administrative function-
corruption, malignity, and unlawful commotion aimed at personal gain are common concepts. 1To
remove fraud, abuse, and other mischiefs from public sectors and to call out indecent public
officials' whistleblowing is necessary to ensure anti-corruption worldwide. But the concept of
whistleblowing and whistleblower has been portrayed in a confusing manner in various existing
legislations. Again, there are different policies reflecting the necessity of whistleblowing in the
country but most of those policies lack any comprehensive approach to stipulate any protection
for whistleblowers. In this paper, an attempt has been made to highlight the basic concepts
relating to whistleblowing, with an emphasis on the existing mechanisms to protect whistle-
blowers, the international legal obligations related to protecting whistle-blowers and their
incorporation into the local legal system and an analysis has been drawn regarding the overall
effectiveness of the existing mechanism and

1
Sean Fleming, Corruption costs developing countries $1.26 trillion every year - yet half of EMEA think it's
acceptable, World Economic Forum, (Dec. 9, 2019), https://www.weforum.org/agenda/2019/12/corruption-global-
problem-statistics-cost.

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 Indian Journal of Law and Legal Volume V Issue V | ISSN: 2582-

how to improve it.

CONCEPT OF WHISTLEBLOWER

Before jumping into our main discussion, we must first start defining the concept of the
whistleblower. The term whistleblower generally refers to a person who secretly reports any act
of corruption, fraud or abuse of power to the authority responsible to prevent such an act. 2 For
example, an employee of a certain public institution who has come across any information of
corruption by their higher authority and if he reports it to the responsible authority to prevent
corruption, then such an employee can be called a whistleblower. However, it is not essential to
be an insider, any individual might be a whistleblower if they have genuine information of
irregularity, and they report it to the authority that might prevent it. 3 Again, it is not always
necessary to report such incidents to a corruption prevention authority. Such information might
also be released to the public or media so that the authority responsible to prevent such would be
obliged to take necessary action against the corrupt person(s) and act(s). A whistleblower can be
anyone who has knowledge of the wrongdoing and who is spontaneous enough to report the
wrongdoing. It can be an employee of the company or organisation, a high official, a third party
such as a supplier- anyone who has the knowledge.4 Hence, all whistleblowers are divided into 2
categories: a) Internal Whistleblowers, and b) External Whistleblowers.5 Those people who
report the misconduct to the high official of the company or organisation are known as Internal
Whistleblower.6 On the other hand, the people who report wrongdoing to authorities outside the
company or organisation, such as to law enforcement agencies, to media and the anti-corruption
commission, etc. are known as External Whistleblowers.7

EVOLUTION OF WHISTLEBLOWER PROTECTION LEGISLATIONS

The concept can be traced back up to the late 1700s in the USA when the first legislative initiative

2
John Klenig, Whistleblower, Britannica, (Sep. 18, 2023), https://www.britannica.com/topic/whistleblower.
3
The Economic Times, What is Whistleblower, The Economic Times, (Nov. 1, 2023, 8.43 PM),
https://economictimes.indiatimes.com/definition/whistleblower.
4
Id.
5
Melissa Baucus, Internal vs External Whistleblowers: A Comparison of Whistleblowering Processes, 17 (1), JBE.
1281 (1998).
6
Id.
7
Id.

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 Indian Journal of Law and Legal Volume V Issue V | ISSN: 2582-

was taken in 1776 for the protection of whistleblowers. 8 After two years and many congressional
debates later the first-of-its-kind whistleblower protection legislation was passed by the US
Continental congress.9 This resolution states that "it is the duty of all persons in the service of the
United States, as well as all other inhabitants thereof, to give the earliest information to Congress
or any other proper authority of any misconduct, frauds or misdemeanours committed by any
officers or persons in the service of these states, which may come to their knowledge.” 10 The
resolution was taken in the context of one of the first whistleblowing in the history of the United
States of America.11 The circumstance involves a petition by 10 petitioners, who were soldiers of
the American Liberation War, reporting their commander, Commodore Esek Hopkins's ill-
treatment toward the war prisoners and his brutality during the war. 12 However, it took another
100 years and another big war, the Civil War, to pass the False Claim Act of 1863 to enable
individual citizens to sue companies who were doing fraud with the government.13 This law is
still being used in the USA and 2021, $5.6 billion worth of settlement was reached by the DOJ
through the enforcement of this law.14

It is noticeable such a measure was taken very shortly after the independence of the USA, and it
reflects the fundamental commitment of the US as a state toward the rule of law and protection
toward vigilant citizens. In the recent past, the USA has witnessed the passing of a pair of
legislations that have provided stronger protection for whistleblowers. The 1989 legislation
called The Whistleblower Protection Act was to protect federal employees from the negative

8
Kristopher Klein, US Whistleblowers First Got Government Protection in 1777, History, (Sep. 26, 2019),
https://www.history.com/news/whistleblowers-law-founding-fathers.
9
Id.
10
Jane Turner, Enact a National Whistleblower Day, National Whistleblower Center, (Nov. 1, 2023),
https://www.whistleblowers.org/enact-a-national-whistleblower-day/.
11
Melissa Baucus, Internal vs External Whistleblowers: A Comparison of Whistleblowering Processes, 17 (1), JBE.
1281 (1998).
12
Allison Stanger, America Needs Whistle-Blowers Because of People Like This, The Atlantic, (Sep. 25,
2019), https://www.theatlantic.com/ideas/archive/2019/09/what-first-whistle-blowers-taught-america/598738/.
13
The False Claims Act, Civil Division U.S Department of Justice, (Apr. 4, 2023),
https://www.justice.gov/civil/false- claims- act#:~:text=%C2%A7%C2%A7%203729%20%2D%203733%2C%20a,
%242%2C000%20for%20each%20false%2
0claim.
14
Justice Department's False Claims Act Settlements and Judgments Exceed $56 Billion in the Fiscal Year 2021,
Civil Division U.S Department of Justice, (Feb. 1, 2022), https://www.justice.gov/opa/pr/justice-department-s-false-
claims-act-settlements-and-judgments-exceed-56-billion-fiscal-year.

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 Indian Journal of Law and Legal Volume V Issue V | ISSN: 2582-

consequences of whistleblowing.15 It helped to counter the wrongdoing within the government by

ensuring no suffering for the whistleblowers while they disclosed a violation of law, gross
negligence, mismanagement of funds and abuse of power. Also, the more recent passing of the
Protection Enhancement Act of 2012 has given further security to federal officials who have
information regarding abuse of power, waste of public funds and fraud.16

On the other hand, no legislation was there in the UK protecting whistleblowers until 1998. After
observing the US development regarding whistleblower protection and realising that many
disasters may be averted by encouraging whistleblowing, The Public Interest Disclosure Act
1998 (PIDA) was passed by the British parliament.17 This law enabled protection for the
Whistleblowers and created an obligation for the authority within the government to hear the
report. The legislation came into force in the year 1999 and it introduced two new provisions in
the Employment Rights Act of 1996 (ERA).18 These two provisions were regarding protecting
the employees and workers from unlawful detriment as a consequence of whistleblowing and
preventing their unfair dismissal by the authority for whistleblowing. Also, the legislation made
sure that there was no required length of service period before one could report any misconduct
to the authority.

But there were other laws in the history of the UK that have acted against the whistleblowers’
protection. In the year 1889, legislation was passed for the British Indian Colony, which is
known as The Official Secrets Act (OSA).19 This piece of legislation acted as the ani-thesis of
whistleblower protection. It was mainly promulgated to prevent public officials from discussing
the matters of colonial corruption in various newspapers of the time. This legislation was
subsequently amended in 1904 and replaced in 1923 to include the offence related to espionage.20
It also incorporated a provision for punishing individuals outside the government for leaking
secrets of the government in the cover of espionage. Mainly, this was a colonial law to exploit
the voice of the native officials and employees. Again, the language of the law was such that it
could cover almost any person or incident within the scope and made the responsibility for
committing

15
Mary k. Pratt, Whistleblower Protection Act, Tech Target, (Oct.
2023), https://www.techtarget.com/searchcio/definition/Whistleblower-Protection-Act.
16
Whistleblower Protection Enhancement Act of 2012, Pub. L. No. 112–199, U.S.C 126 STAT, 1465.
17
UK. Public Interest Disclosure Act (1998).
18
UK. Employment Rights Act (1996).

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 Indian Journal of Law and Legal
19 Volume V Issue V | ISSN: 2582-
Ind. Official Secrets Act (1889).
20
Bangl. The Official Secrets Act (1923).

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 Indian Journal of Law and Legal Volume V Issue V | ISSN: 2582-

the offence of leaking information. Even any reporter or employee who would report based on
the leaked information was considered criminal and punishable by law. Because of its oppressive
nature and vague provisions, the OSA faced criticisms in Britain and was regarded as a law
meant to encourage government corruption and choke free speech and freedom of media.
However, it took almost another 100 years for the British to change the law in 1989 and to
replace section 2 of the OSA. It must be mentioned that the changed section 2 of the OSA in
Britain was similar to section 5 of the OSA 1923 that is still enforced in Bangladesh. The
replaced section 2 was known as the 'catch all' provision for empowering the government with a
broad scope and the amended section ensured that secrecy will be provided only to certain
categories of government information, and it would be legal to report any other information
outside these specific categories. The most important part was that it specified the definition of
the disclosure of information of offence and defined the nature of the information that was off
the limit to prevent damage to the national interest.

Although Bangladesh has gone through a significant legal development since its independence in
1971, it has not yet changed The Official Secrets Act (OSA) of 1923. As a result, the legislation
has been subject to strong criticism by the people. In the recent past, the arrest of a journalist
named Rozina Islam under the provisions of OSA was subject to national criticism regarding the
abuse of the legal provisions of OSA. However, a 1993 judgement of the Supreme Court of
Bangladesh in the writ petition related to ‘secretly transferring important information relating to
Bangladesh Gas Field to a foreign mission’ (Writ Petition No. 196 of 1993) has proved the law
quite effective in preserving state secrets, yet the century-old law requires amendments as has
been made by the UK. It is quite a rare incident that a case has been filed under OSA but the
reference to it in the 2017 Rules formulated under the Public Interest Information Disclosure
(Protection Provision) Act, 2011,21 and in the Digital Security Act of 201822 has proved that the
legislation needs amendments to ensure the Whistleblower's protection. Now, let’s discuss how
whistleblowing works.

21
Ministry of Law, Disclosure of Public Interest Information (Protection) Act 2011, BD Laws, (Dec. 29, 2011),
http://bdlaws.minlaw.gov.bd/upload/act/2021-11-17-11-39-54-40.The-Dsclosure-of-Public-Interest-information-
(Protection)-Act--2011.pdf.
22
Ministry of Law, Digital Security Act 2018, Laws of Bangladesh, (Dec. 28, 2018),
http://bdlaws.minlaw.gov.bd/act- 1261.html.

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 Indian Journal of Law and Legal Volume V Issue V | ISSN: 2582-

WHISTLEBLOWING PROCESS IN GENERAL

There are specific guidelines regarding whistleblowing in different contexts. Such guidelines are
generally provided by the authority of the context in question. However, a general mechanism
can be identified. Reporting criminal offences like fraud and corruption, health and safety
concerns, risk or actual damage to the environment, an act of miscarriage of justice, law-
breaking by the company or individual and bonafide complaints where the person who is
reporting any incident honestly believes such incident to be unlawful, etc. are considered
as whistleblowing. The whistleblower generally reports their employer and the employer then
take necessary steps like protecting the confidentiality of the report and the identity of the
whistleblower, initiating an investigation regarding the alleged misconduct, taking action to stop
the ongoing misconduct and taking punishment against the persons responsible. Also, there are
other options like getting legal advice from a lawyer and reporting through a lawyer or reporting
to a prescribed person or body. However, not all whistleblowing ends up in an investigation.
There might be a lack of sufficient information provided by the whistleblower that could end up
in no action regarding the alleged matter. However, the whistleblower is not entitled to disclose
the matter to the media and if they do so then they lose their rights to protection. If the
whistleblower is not satisfied with the way their employer or the designated authority deals with
the raised concern, then they are entitled to notify their concern to the senior member of staff, or
any prescribed person or body established for dealing with such matter under law.

SIGNIFICANCE OF WHISTLEBLOWING

Whistleblowing is a very effective way to deter and prevent corruption and similar malpractices.
The actions taken based on various whistleblower reports have not only saved millions of dollars
in the public fund but also ensured public good. There are reported incidents of industry-level tax
avoidance that were disclosed by the whistleblowers in LuxLeaks, Panama Paper incidents,
money laundering by the Danske Bank scandal, and so on that have helped the states to
adjudicate many criminals which otherwise might have gone unadjudicated.23 Again, many
more wrongdoings

23
Martin Banks, Panama Papers: Leaked documents reveal extensive tax evasion practices, The Parliament
Magazine, (Apr. 4, 2016), https://www.theparliamentmagazine.eu/news/article/panama-papers-leaked-documents-
reveal-extensive-tax-evasion-practices.

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 Indian Journal of Law and Legal Volume V Issue V | ISSN: 2582-

could be prevented if there was a more open approach in various companies or organisations
regarding whistleblowing. Whistleblowing is a mandatory regulatory requirement for company
business. The companies have a legal obligation to ensure an environment of protection for the
whistleblower. Publicly traded companies in the USA are required by laws like Sarbanes-Oxley
Act and the Dodd-Frank Act to protect whistleblowers. 24 A similar approach is there in Europe
where many countries have their whistleblower protection legislation and there is the European
Union's Whistleblower Protection Directive which is law of the land of all member states. 25
However, even without any regulatory obligations, the concept is significant because a healthy
environment of protection for whistleblowing ensures a productive and accountable environment
within the company or organisation which ultimately bolsters the company’s business revenue.

THE ADVANTAGES OF WHISTLEBLOWING

Companies or organisations have an ethical obligation to protect and support their employees if
they are following the established regulation of the companies or organisations and the state.
And when an employee reports a certain event, it is he/she does it for the benefit of the company
or organisation. Therefore, the company or organisation also has a moral obligation to protect
such an employee from any retaliation.

Not all the irregularities could not be foreseen by the top-level management. If there is the scope
of speaking up, then the company or organisation gets well informed about any irregularity. It
helps the company or organisation to avoid further legal consequences and help them to
strengthen their weakness. It also involves minimizing the cost the irregularities cause. A long-
time irregularity is likely to cause the company more in monetary value than an irregularity that
has been detained earlier. Especially if the misconduct is a criminal violation like bribing
government officials or workplace sexual harassment then it is bound to cost the company in
losing fame. A good example is the allegations against former US President Donald Trump that
he held back vital assistance for Ukraine by misusing his power and pressuring them to
investigate and defame his

24
SEC, Protections Against Retaliation, SEC, (Nov. 22, 2021), https://www.sec.gov/whistleblower/retaliation.
25
NWE, The European Union Whistleblower Directive, National Whistleblower Center, (Jan. 20,
2022), https://www.whistleblowers.org/what-is-the-european-whistleblower-directive.

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 Indian Journal of Law and Legal Volume V Issue V | ISSN: 2582-

Presidential Election rival Joe Biden in 2020.26 However, as the wrongdoing was confirmed by
the investigation of the House committee, he was impeached by the US Congress.27

Also, there might be incidents of small negligence that could cost the company big loss of vital
data, for example, negligence in cybersecurity might cost the company to lose vital data which
might customer information and trade secrets. But if there is an environment of whistleblower
protection then such might easily be reported to the higher authority and can be averted.

Wrongdoing can be prevented when an employee who is tempted to commit misconduct has the
fear that his colleague might notify the higher authority and authority might investigate and take
action against him. There is a good possibility that in such a situation the employee might not
commit the misconduct. Thus, whistleblower helps the company or organisation to ensure an
environment of integrity, honesty and efficiency.

THE DAUNTING SIDE OF ENCOURAGING WHISTLEBLOWING

Whistleblowing is not altogether free from some negative consequences. Although

whistleblowing exposes various corrupt and immoral practices of the company or organisation
and thus saves the company or organisation from future damage, it makes the culprits fall into an
uncomfortable position. So, it is quite a common scenario that the accused persons often try to
intimidate the whistleblower if their identity gets exposed. Very often such identity leaks are
occurred because of the collaboration of the accused and the people in the authority.

Again, it is quite a common scenario that the accused may be holding an influential position in
the company or organisation. So, they often have access to company personnel and investigating
bodies. Very often the whistleblower faces pressure to change his statement and to do so the
accused and the collaborators create a hostile work environment for the whistleblower.

Moreover, if the authority is reluctantly protecting the whistleblower, then even the stigmatisation

26
Dan Mangan, Trump urged Ukraine president eight times during call to investigate Joe Biden’s son, report
says, CNBC, (Sep. 20, 2019), https://www.cnbc.com/2019/09/20/trump-urged-ukraine-president-to-investigate-joe-
bidens-son.html.
27
Nicholas Fandos, Trump Impeached for Abuse of Power and Obstruction of Congress, The New York Times,
(Feb. 10, 2021), https://www.nytimes.com/2019/12/18/us/politics/trump-impeached.html.

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Indian Journal of Law and Legal Volume V Issue V | ISSN: 2582-

might be done by the very company or organisational authority. As a result, the whistleblower
could be levelled as a traitor towards his colleagues and his career might be destroyed gradually.
So, a person with information needs to reach the final decision by giving the utmost logical
thought to the matter. If a person is negligent and reports a baseless accusation, then he might
suffer negative consequences as well his accusation might not bring any fruit. One has to ensure
that he has enough evidence to support his accusations and would be able to provide such
evidence when it is necessary before he decides to report an accusation.

Again, despite all the legal protections and institutional arrangements whistleblowing is still an
unsafe journey and might hinder the normal life of the whistleblower. Therefore, the
whistleblower must be mentally prepared for such an adverse situation. More often the
whistleblowers are not aware of the legal protections available to them. So, they often failed to
avail the of protection for their job. Moreover, this lack of knowledge of the law often makes
them fail to determine whether actual wrongdoing has occurred it is merely just their suspicion.
And as there is hardly any institutional arrangement to ask such suspicious queries, the
whistleblower feels alone in their journey. They had to act upon their wit without any legal or
technical assistance.

Another problem is that whistleblowers very often lack concrete evidence because they do not
have access to particular resources. So, as whistleblowers, they just don't suffer for reporting the
wrongdoing but also suffer while gathering the evidence. Despite all the laws and policies
encouraging companies or organisations to create an environment of protection for
whistleblowers, many companies or organisations are quite reluctant to deploy their valuable
assets for this cause which makes the situation for the whistleblower worse.

Most importantly, the relationships that are damaged by whistleblowing are irreparable through
law. So, it must be considered by the whistleblower if the wrongdoing which they know is worth
reporting and whether it is of such nature that it is worth destroying their relationship within the
company or organisation. The whistleblowers often become social outcasts within their own
company and lose all mental peace and happiness in the long run. So, the cost of being a
whistleblower is quite high.

Now, we would discuss the existing international framework for the protection of whistleblowers.

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INTERNATIONAL FRAMEWORK TO PROTECT WHISTLEBLOWERS

International Law has ensured that Bangladesh must ensure the protection of whistleblowers
through domestic legislation and policy frameworks. Nowadays, the number of legal protections
for whistleblowers is growing at a rapid pace. The protection of whistleblowers has been ensured
under Article 19 of the ICCPR. 28 It has also been reflected in the UN Convention against
Corruption.29 It was stated in the UN Human Rights Committee’s General Comment no. 34 that:

“States parties should recognize and respect that element of the right of freedom of expression
that embraces the limited journalistic privilege not to disclose information sources.”30

Moreover, the Joint Declaration on Defamation of Religions, and Anti-Terrorism and Anti-
Extremism Legislation (2008) of the four special mandates asserted that:

“Normal rules on the protection of confidentiality of journalists’ sources of information –

including that this should be overridden only by court order on the basis that access to the source
is necessary to protect an overriding public interest or private right that cannot be protected by
other means - should apply in the context of anti-terrorist actions as at other times.”31

Again, the signatories of the UN Convention against Corruption are bound to protect the
whistleblowers from retaliation under Article 33, where it has been stated that:

“Each State Party shall consider incorporating into its domestic legal system appropriate
measures to protect 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.”32

28
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March
1976) 999 UNTS 171 (ICCPR) art. 19.
29
United Nations Convention Against Corruption (adopted 31 October 2003, entered into force 14 December 2005)
UNTS 2349 (UNCAC).
30
Edward Carter, "No to Disclose Information Sources: Journalistic Privilege Under Article 19 of ICCPR," 22(4)
Brigham Young University 399 (2017).
31
OSCE, Joint Declaration on Defamation of Religions, and Anti-Terrorism and Anti-Extremism Legislation,
OSCE, (Dec. 15, 2008), https://www.osce.org/fom/35639.
32
Id. 31, art. 33.

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 Indian Journal of Law and Legal Volume V Issue V | ISSN: 2582-

It is important that Article 33 is implemented in the domestic legal system of the countries so
that whistleblowers get the protection of domestic law. It also makes the companies or
organisations adopt the necessary measures for whistleblower protection. Bangladesh is a
member of the Organisation for Economic Co-operation and Development (OECD) and is bound
to follow OECD standards of 2006 (OECD, 2006).33 Furthermore, UNCAC (2003) has ensured
under Article 33 that the states promote whistleblower protection through the promotion of an
accountable environment and through the establishment of a systematic convenience to enable
the employees of the government and non-government organisations or companies to report any
information of corruption. Article 33 of the Convention states that,

“Each state party shall consider incorporating into its domestic legal system appropriate
measures to protect 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.”34

Again, UNCAC has ensured certain protections like non-disclosure of identity, immunity to
criminal liability, protection from retaliation, protection of the accused against baseless
information and punishment for malafide whistle that the member states are bound to ensure in
their domestic system.

An important aspect that has been provided in the UNCAC is the reward theory. A reward might
be an effective way of encouraging whistleblowing. By whistleblowing, the whistleblower saves
valuable resources of the state that might have been otherwise misappropriated by the accused.
An adequate reward would also put the fear of being constantly watched in the heart of the
corrupt officials and would further discourage them to do corruption.

Again, corruption might be deeply rooted in the psychological state of the officials. So,
professional psychologists could be hired to give Pro-bono counselling to the officials and help
them to have a sound psychological state to be able to avoid corruption. Moreover,
whistleblowers

33
OECD, Conducting business in weak governance zones - 2006 Annual Report on the Guidelines for Multinational
Enterprises, OECD, (Dec. 25, 2021),https://www.oecd.org/daf/inv/mne/conductingbusinessinweakgovernancezones-
2006annualreportontheguidelinesformultinationalenterprises.htm.
34
Id. 31, art. 33.

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often threatened their family members. So, it is not always enough just to give protection to the
whistleblowers to save them from harm ways. If protection is given to their close family
members too then people might feel more confident to report the wrongs to the proper authority.
And this would ultimately encourage whistleblowing and enable us to make an accountable
administration in the country. Though the statutes have been enacted nationally to protect
whistleblowers, the provided protections are not adequate to safeguard them from undue pressure
and unwanted discrimination. Therefore, we will be recommending certain solutions that might
bight a way out of this problem.

Now, we would analyse the state of Bangladeshi laws to meet this standard.

WHISTLEBLOWER’S PROTECTION IN BANGLADESH

Corruption in Bangladesh is not a new concept. Therefore, most of the time whistleblowers due
to lack of legal protection tended to keep their silence against the repression activities of public
officials. In 2011, Bangladesh enacted a statute in order to provide legal protection to
whistleblowers. The Public Interest Information Disclosure (Provide Protection) Act 2011 (“Act,
2011”) is such a measure.35 Significant protection for whistleblowers has been provided under
the act and it deals with the following:

A. Non- disclosure of identity:

A whistleblower shall enjoy the right of non-disclosure of his identity if he does not give consent
otherwise. In order to keep himself safe from unnecessary nuisance created by the exposure.

B. Criminally liability:

If any whistleblower based on accurate, beyond reasonable ground, discloses any information
relating to the public interest, no criminal or civil case can be filed against him for this conduct.
He cannot be held liable for such disclosure.

35
Ministry of Law, The Public Interest Information Disclosure (Provide Protection) Act 2011, Laws of
Bangladesh, (Dec. 25, 2021), http://bdlaws.minlaw.gov.bd/act-details-1072.html.

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C. Defending against retaliation:

If a whistleblower is an employee of any organization, he shall enjoy protection from demotion,

harassment, unwanted transfer, compulsory retirement or any action which forms retaliation
against the employer for such disclosure of public interest concerning the information.

D. Protection for the accused against false information:

Every individual has a right to get protection against malignity. A whistle could be blown by
anyone, but it should be kept in mind what was the intention of the whistleblower. Anyone can
misuse the power of whistleblowing in order to frame the accused with ill intentions. In such
cases, protection must be rendered to that individual as well. Some of the statutory provision
which provides such protection are:

If during the hearing of the case, it appears to the court that the disclosure of information was
false information and was made intentionally to make fraudulence against the accused, such
informant’s identity shall be disclosed, and action can be taken against him in accordance with
Section 10 of the said Act.36 Section 10 of the Act, 2011 profess the view that, if any informant
discloses any information with full knowledge that such information is wrong and baseless
which does not concern public interest, with an intention to achieve the personal benefit, such
informant shall be held to be false information.37

E. Punishment for malafide whistleblowing:

Under section 10 of the Act, 2011, any person who discloses any false information in order to
accuse someone with baseless disclosure, such person shall be punished with imprisonment for
up to five years. But such imprisonment terms will not amount to less than two years. If such is a
government official, he shall be punishable with departmental disciplinary action along with
provided punishment mentioned in section 10(2).38

36
Id. s. 10.
37
Id. 35, s. 10.
38
Id. 35, s. 10(2).

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F. Incentives for bonafide whistleblowers:

Under section 14 (Act, 2011), a reward has been introduced for the whistleblower upon the
successful conviction of the accused.39 The provision is supposed to encourage people to be more
vigilant and confident while whistleblowing. However, there is no provision for pro-Bono
Professional services such as professional psychologists, or legal advice in the Act which makes
the whistleblower quite vulnerable to the after-effects of their work.

G. Safeguarding immediate family members:

The Act also lacks the provision of extended protection to the close family member of the
whistleblower. So, it is a quite common incident that the family members of whistleblowers face
threats from the accused side. As a result, very often the whistleblowers have to deny the
information they have provided earlier, and the corrupt people get free.

So, it can be said that the existing laws lack various international standards. Now, we would
analyse the effectiveness of whistleblowing in Bangladesh in such a hostile legal environment.

IMPACT OF WHISTLEBLOWING IN BANGLADESH

Bangladesh has previously been criticized for its excessive corruption rates in its public
administrative system. And Bangladesh has ranked 147 th out 180 countries in the ranking of least
corrupt nations in 2021.40

39
Id. 35, s. 14.
40
Daniel Eriksson, Corruption Perception Index, Transparency International, (Jan. 1, 2021),
https://www.transparency.org/en/cpi/2021?gclid=CjwKCAiA-
8SdBhBGEiwAWdgtcAtbo_NAyMC9uFFH8UhDYCM3jSOmUc8wD5K-do4sbLt-
De4njj_0KRoCxksQAvD_BwE.

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Figure 1: Bangladesh’s Ranking Throughout years in the list of least corrupt nations.41

From the bar chart, it is apparent that the fluctuation of position of Bangladesh did not change
that much in recent years, and it was one of the worst performer in case of improving the
corruption situation.

A recent survey conducted by Transparency International in 2021 has only produced static proof
of the above-mentioned statement (TI, 2021).42 According to the survey among 180 countries,
Bangladesh holds the rank of 147th among 180 countries worldwide (TI, 2021).43 The Corruption
Perceptions Index (“CPI”) score system ranks the countries on a scale of (100-00).44 Here, a
score 100 means the country does not contain any corruption in its system, on the other hand, '00'
refers to the highest corruption.

The CPI of Bangladesh as per TI (2021) has been given below:

41
Id.
42
TI, Corruptions Perception Index 2021, Transparency International, (Dec. 25, 2021),
https://www.transparency.org/en/cpi/2021/index/bgd.
43
Id.
44
Id.

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Corruptions Perception Index of Bangladesh

(2012-2021)

28
27
26 26 26 26 26 26
25 25

2021 2020 2019 2018 2017 2016 2015 2014 2013 2012
CPI Score 26 26 26 26 28 26 25 25 27 26

Figure 2: Corruptions Perception Index of Bangladesh (TI, 2021).45

The above-mentioned survey reveals the uncouth truth of Bangladesh's corruption. Therefore, it
is exigent to glorify the role of whistleblowers in order to reduce corruption in the country's
rusted system. The whistleblower's protection should be maintained strictly by the national legal
framework to encourage them to tread on to abolish the evil tradition of corruption from every
possible public sector.

SUGGESTIVE REFORMS

Creating an Independent Supervisory Body

In order to protect the whistleblowers from any retaliatory action from corrupt persons it is
suggested to establish an independent supervisory body. There are ample examples in various
foreign jurisdictions regarding such an independent body. Under section 11( c) of USDOL
(2022), an aggrieved whistleblower can file a complaint against his employer with Occupational
Health and Safety Administration within 30 days of such retaliation activity undertaken by the
employer and seek justice (OSHA, 2013).46 It also has a specialised alternative dispute resolution
forum in order to resolve such retaliation disputes (USDOL, 2022).47

45
Id.
46
USDOL, Whistleblower Laws Enforced by OSHA, USDOL, (Mar. 18, 2022), https://www.whistleblowers.gov/.
47
Id.

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However, in order to safeguard the whistleblowers from administrative retaliation, a specialised

independent supervisory body is the forum which can properly overview and investigate the
particular situation, possessing an articulated work mechanism. UNCAC (2003) in its article 36
requires that "each state party shall, in accordance with the fundamental principles of its legal
system, ensure the existence of a body or bodies or persons specialized in combating corruption
through law enforcement. Such body or bodies or persons shall be granted the necessary
independence, in accordance with the fundamental principles of the legal system of the state
party, to be able to carry out their functions effectively and without any undue influence.”48

By analysing the above-mentioned framework, it can be said that properly mandated specialized
agencies should be established in every state to ensure the protection of whistleblowers from
retaliation. Also, laws must be amended, if needed, to enable such agencies to conduct their
operation and investigation of these particular complaints without any influence.

Law Reform Initiatives

Although in neighbouring countries India and Pakistan the OSA of 1923 has gone through many
amendments, Bangladesh has been quite negligent in this regard. The OSA in Bangladesh still
adheres to the colonial sentiment of exploiting the people and giving immoral opportunities to
the wrongdoers. Even it sometimes reflects the Pakistani sentiment as the provisions brought
during the Pakistani period have not been changed yet. For example, an amendment brought in
the year 1968 has increased the punishments under section 3 and section 5 up to the death
penalty which is still in force in Bangladesh.49 This is an extremely harsh punishment and as the
whistleblowers might fear for their life so this might discourage them to report information about
wrongdoing. This notion is also against the constitutional guarantee of freedom of speech and a
hindrance to independent journalism.

Apart from the harsh punishment under section 3 and section 5, the law has vagueness in various
aspects. What documents are 'official secrets' and what are merely secrets has nowhere been

48
Id. 32, art. 36.
49
Id, 20, s. 3,5.

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defined in the law.50 Because of this grey area, any document or information might be labelled as
a state secret and could be used against the whistleblower.

Also, there are concepts like 'enemy states' that were taken into consideration during the post-
WWI reality. But in today's era, Bangladesh has no ‘enemy country’ and it is a serious violation
of Bangladesh’s foreign policy. Moreover, section 3(2) has placed the burden of proof upon the
accused.51 It is a gross violation of criminal law norms where the burden of proof is upon the
person who is accusing. Also, concepts like 'previous conduct’ and ‘known character' are
subjective and can easily be misused for suppressing the voice of the whistleblower.

So, such a problematic law must be rescrutinised. However, the positive side is that we have the
Right to Information Act in 2009 for ensuring the accountability of government offices. 52 Also,
the Public Interest Information Disclosure (Protection Provision) Act of 2011 ensures that
information is disclosed to the public if it is of a public interest nature. 53 But the defect of such a
law is that it does not enable the media to get such public interest information rather only the
individuals could ask for such information. So, provision must be introduced to enable the media
to get information which is of a public interest nature.

Also, it must be made sure by the government that 'national secrecy' cannot be misused to make
the whistleblower suffer. Again, the government must ensure the safety and security of the
whistleblowers in various corporations and organisations. An independent observatory body
should be introduced through special legislation for this purpose. Such a body must be provided
with the necessary budget, manpower and legal jurisdiction to monitor the whistleblowing
situation of various companies or organisations. Thus, it can be hoped that a safe environment
can be established for whistleblowers through legal and institutional arrangements.

50
Id. 20.
51
Id. 32, art. 3(2).
52
Ministry of Law, Right to Information Act 2009, Laws of Bangladesh, (Dec. 28, 2021),
http://bdlaws.minlaw.gov.bd/act-1011.html.
53
Ministry of Law, The Public Interest Information Disclosure (Provide Protection) Act 2011, Laws of Bangladesh,
(Jun. 22, 2021), http://bdlaws.minlaw.gov.bd/act-details-1072.html.

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Cultural Reform Initiatives

There must be brought cultural reform in the existing corporate and institutional structure to
ensure vigilance through whistleblowing. At first, within the company or organisation, a
sentiment of promoting ethical values must be created and such must be created by the high
officials by following the ethical and moral standards with utmost care. Such a commitment from
the high officials would encourage the subordinate officials to follow a path of morality and
ethics.

Again, the promotion of ideas that the company cares about ethics is important. For example, a
recent Well Fargo incident indicates that the employees were told to achieve unrealistic sales
goals and the company disregarded any ethical standards in setting such goals. It was even
reported that the goals must be met even if it needs the employees to sign customers up for new
accounts without their consent.54 It is real that companies or organisations are ultimately seeking
profit, but it is very much important how such outcomes are coming out. If immorality is
tolerated for the company or organisational benefit, then the employees will gradually get used to
immorality and ultimately, they would cost the company or organisation because of their
immoral or corrupt act. So, the high management and officials must shape their behaviour most
ethically and would try to reflect upon and expect the same from their subordinates.

Ethical leadership is the most vital factor that could gradually change the psychology of the
whole company or organisation toward a healthy one. Employees generally look for social cues
regarding whether to blow the whistle or not. If they perceive it is safe for them to notify their
supervisor, they would do so more often, and an environment of trust and accountability would
be created within the company or organisation. Therefore, the leadership must ensure an
environment of honesty, integrity and trust for the company employees.

CONCLUSION

As the world is evolving fast so are changing the nature of retaliation against whistleblowers. As
has been presented in this article, the recent incidents of retaliations against the whistleblowers
have made it an urgent matter to review their protection. And in such a situation, the national

54
Chris Arnold, Former Wells Fargo Employees Describe Toxic Sales Culture Even At HQ, NPR, (Oct 4, 2022),
https://www.npr.org/2016/10/04/496508361/former-wells-fargo-employees-describe-toxic-sales-culture-even-at-hq.

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authorities cannot effectively take necessary steps without the help of international stakeholders
to bridge the gaps in its system. The states and international bodies must work for the protection
of whistleblowers and for making sure that there is a fertile ground for reporting misconduct and
corruption within the company or organisational structures. Any action from the state that
silences or discourages whistleblowing must be avoided for its good. Embracing criticism is a
healthy way of knowing own weaknesses and addressing such weaknesses. Companies or
organisations should explicitly refrain from giving employees any notion that they must achieve
their target disregarding law and morality. Nowadays in the public and private sectors,
whistleblowers are a central part of bringing wrongdoing to light. But some laws that were
enacted to protect and empower whistleblowers are no longer fit for purpose – too often they
actively hinder whistleblowers from trying to speak up. The reforms suggested in this paper are
drawn from past reviews, inquiries and scholarly writings. Because of the inaction from past
governments, we have already fallen behind in ensuring a standard environment for
whistleblowers. The damage was compounded by destroying the socio-economic status of
various past whistleblowers. As and when these reforms are implemented, it is to be hoped that
Bangladesh would make its position in the world in protecting whistleblowers and upholding
integrity. Civil society, media, and other stakeholders must also help the organizations and
government for furthering this cause.

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