Ex-judge: Immunity a 'gimmick' if whistleblowers admit to crime

Former Court of Appeal judge Hamid Sultan Abu Backer argued that whistleblower protection in Malaysia is a “gimmick” as those who sound the alarm can still be probed if they colluded in the crime.

“In my view, the guarantee of immunity from prosecution set out in the WBA (Whistleblowers Protection Act) is merely a gimmick.

“Whistleblowers who are found to have participated in the crime being investigated are liable under the WBA to lose the protection offered,” he wrote in FreeMalaysiaToday.

“Nonetheless, the attorney-general has an absolute right to record a nolle prosequi (unwillingness to pursue a case further) against a whistleblower who has been charged, or not to prosecute him altogether, after balancing the benefit of the information to the public,” he said.

Hamid (above) did not refer to any specific case but the piece was published today in the wake of the Sabah corruption scandal exposed by a whistleblower.

The whistleblower is a businessperson who has since admitted to also being the person who gave the alleged bribes to the politicians.

Sabah Chief Minister Hajiji Noor has also been dragged into the scandal.

Hamid said in cases involving a whistleblower who admitted to a crime, the attorney-general (AG) may consider first charging the person based on his confession and stay all proceedings until all related criminals are successfully convicted.

“This will ensure that the whistleblower does not change his tune during the trial of other accused persons.

“Upon the successful conviction of the public miscreants, the AG may request a discharge not amounting to an acquittal (DNAA) for the whistleblower,” he said.

An AG’s duties

Hamid also offered advice on how an AG exercise his duties and power under the Federal Constitution to decide whether to prosecute a suspect for an offence under the law.

“That would obviously include a whistleblower who may have participated in the very criminal activity he is now divulging information about.

“But the AG cannot act oppressively against any person as it may impinge on the legitimacy of the government’s hold on power, especially when such acts are directed at politicians who may be held in high esteem by the state or certain segments of society.

“The AG must, therefore, both as a matter of convention and in accordance with the rule of law, exercise his prosecutorial powers fairly and justly,” he said.

Hamid said while an AG is not answerable to the court for refusing to prosecute anyone or abandoning an ongoing criminal process, a victim can complain to the court for any arbitrary or wrongful exercise of power.

In such cases, he said the court has the constitutional and judicial power to grant appropriate relief, which may include ordering monetary compensation against the state.

“The AG is also answerable to the rulers, as he is appointed by the Yang di-Pertuan Agong,” he added.

According to Hamid, in a Malaysian context, the absolute power granted to the AG cannot be diluted by any ordinary law, including the Whistleblowers Protection Act which gives discretion to the investigative agencies whether to prosecute a whistleblower.

He also described the act as a “procedural guideline” that the AG may rely on when deciding whether to prosecute a common law or statutory whistleblower.

In the Sabah corruption case, the MACC on Nov 17 confirmed it received a complaint regarding the businessperson suspected to be involved in a bribery scandal over a mineral mining project in the state.

The whistleblower had expressed his readiness to share all the purported evidence in his possession with the MACC in exchange for protection.

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