Trinidad and Tobago — whistleblowing on pause

Table of contents:
Trends in whistleblowing?
Bill in a nutshell
Anonymity and drawbacks
One more amendment?

          Good legislation is worth to be enacted — a thing we believe in and can't wait for it to happen in Trinidad and Tobago. The bill about whistleblowers protection exists for a few years already in different variations, and nothing has been done about it.

    Long story short: in May 2019, the bill was not passed since the Opposition objected against its anonymity regulations. We'll get back to anonymity issues and a general idea of the bill, but why it's so crucial to enact it?

       A fresh report of Transparency International gives clues: The Republic of Trinidad and Tobago has a stable high rate of corruption which got even worse in 2019. While some conspiracy theories claim the law wasn't enacted on purpose, we still have hope for 2020 and take a closer look at the bill itself.


 

Trends in whistleblowing?

       As humans, we like to compare and look for better alternatives - Trinidad and Tobago did the same during the creation of a new bill. It has a lot in common with the current highest standard (the EU whistleblowing Directive of 2019), though with some restrictive measures.

     The Bill on Whistleblowing of T&T contains a table of comparisons with laws of the UK, Canada, New Zealand, Malaysia and Malta. With the help of categories of comparison, we can see what the most important aspects to take into account in whistleblowing legislation are: the protection of disclosures, the obligation to be in good faith, immunity of whistleblowers in legal and civic procedures.


 

Bill in a nutshell

       The laws on whistleblowing differ in their aim: while some are meant to protect freedom of speech and human rights, others are more specialized and are specifically made to tackle corruption. To the first one, we would refer the Public Disclosure Interest Act of the UK, EU Directive. Trinidadian version of whistleblowers bill aims at tackling corruption by encouraging and protecting disclosures from whistleblowers (a similar approach we've seen in Ukraine). The law works in both private and public sector which why it stands out among other laws. 

      The bill defines a whistleblower as anyone who makes a disclosure to a whistleblowing officer or whistleblowing reports unit. Good news: whistleblowing reports unit is a real thing, and there is a list of designated authorities where you can blow the whistle depending on the origin of the problem. The whistleblower should be in good faith while reporting (or just have reasonable grounds to believe the disclosed information is correct) and only in this case it will be protected - a common rule for all the laws on whistleblowing.

      There is an obligation to implement internal whistleblowing systems and assign a compliance officer, however, with no references to the size of the company. The procedure and reasons for external reporting are also explained. The last, but the most important: the bill guarantees the confidentiality of whistleblowers and determines the violations which entail criminal liability.


 

Anonymity and drawbacks

       One of the objections to the bill was its blurred definitions of anonymity and absence of protection of anonymous reports. We don't expect something as good as German attitude to anonymity: still, Trinidad and Tobago bill doesn't count anonymous reports as reliable sources of information. Compliance officers may accept these reports in order to get informed about the threats - that's where finishes protection of whistleblower and cooperation with him. Since the absence of anonymity protection significantly reduces the number of reports, there are severe concerns about the success of the new bill.

           Raw as it is: the initiative of Trinidad and Tobago deserves approval, but has much more drawbacks than it seems at first sight. Confidentiality, data privacy protection and cases of defamation aren't highlighted in the bill. A good tendency in European legislation is to define the rights of both sides of the whistleblowing procedure to avoid possible violation of data privacy. It's important to mention when and how the identity of the whistleblower may be revealed to the accused person - to ensure both sides have equal rights.

     Defamation and data security: the bill doesn't say anything about legitimate ways for whistleblowers to obtain the information which means accused persons may start lengthy court proceedings. The disclosed information can contain trade secrets and be the result of unauthorized access - such things would better be prevented and explained. The same unclear situation is with personal data on whistleblowers: where and for how long it can be stored, who can have access to it?


 

One more amendment?

     While the bill doesn't provide any answers to crucial questions of data storage, it's for the better that it wasn't implemented. Better as a chance for improvement and worse for the start of not perfect but existing protection of whistleblowers.

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