AMAN holds a hearing with the Palestinian Anti-Corruption Commission on the concept of protection under the Regulation on the Protection of Whistleblowers and Witnesses
Ramallah – The Coalition for Accountability and Integrity (AMAN) held a hearing with the Palestinian Anti-Corruption Commission (PACC) on the concept of protection under the Regulation on the Protection of Whistleblowers and Witnesses. The session aimed to explicate on the filing of applications for protection, define the concepts of risks and damage as adopted in the applications for protection, and outline the actions taken before and after these applications are submitted. Along this vein, AMAN believes in the importance of public awareness raising about the protection of whistleblowers and witnesses in the cases of corruption.
In his opening statement, Advocate Bilal al-Barghouthi, Legal Advisor to AMAN, explained that whistleblowing was one of the most important tools and methods, which enables individuals to participate in the anti-corruption effort. As confirmed by the United Nations Convention against Corruption, needed protection should be provided to witnesses, whistleblowers, and victims.
According to Al-Barghouthi, the legislative framework has seen a remarkable development. In the context of providing for the protection of whistleblowers, protection is prescribed by Law No. 1 of 2005. A regulation on the protection of whistleblowers was enacted later, providing a detailed account of the channels, conditions, and tools of protection. However, some problems affect the practical aspects of the application process. These shortfalls have been monitored in cases that provoked public opinion. Al-Barghouthi cited results of the AMAN 2022 Opinion Poll, which demonstrated that a key reason for public reluctance to report instances of corruption lied in the conviction that adequate protection was not provided to whistleblowers as well as in fear of reprisal.
Public inquiries about the provision of protection
Highlighting key practical problems, Al-Barghouthi stressed the need for making clear the mechanisms and conditions for filing protection applications as well as the actions taken before and after applications are lodged. The concepts of risks and damage also need to be laid out. Al-Barghouthi provided a synopsis of public inquires raised by both the public and persons who resorted to AMAN for legal advice on the requirement for providing protection before and after damage is caused. When their requests for protection were approved, some persons were subject to administrative measures. As these persons claimed, the PACC simply sent letters to relevant ministers, requesting that transference be abolished. This raises questions about whether protective actions rely on officials’ willingness to comply with these actions. Al-Barghouthi also elaborated on the concept of causal relationship between damage and complaints. He also wondered if the PACC Chair has issued any instructions to enforce the Regulation on the Protection of Whistleblowers and Witnesses in accordance with Article 16 of the same Regulation. Whistleblowing can potentially be encouraged by amending the relevant legislative framework (i.e., Regulation on Protection). Protection should not be conditional on submitting an application. Regardless of whether an application for protection is filed or not, the PACC must be vested with the power to provide protection, particularly after it verifies that the action taken against a whistleblower was a result of reporting a crime of corruption. This is consistent with the importance of an expanded concept of protection, particularly if the public are unaware of these potentially complicated processes.
Ms. Wala’ Abdullah, PACC Protection of Witnesses and Whistleblowers Head of Section, provided an overview of the Regulation on the Protection of Witnesses and Whistleblowers. This legislative act has been in force since 2010. The first application for protection was filed in 2015. Later, the Council of Ministers’ Decision No. 7 of 2019 was passed, providing for protecting witnesses and whistleblowers.
The concept of protection and who it is provided to by the PACC
Abdullah defined the concept of protection as the prevention or elimination of damage caused to any applicant for protection, whether it is at an employment, personal, or legal level (criminal prosecution). The PACC offers different types of protection, including employment, personal, and legal protections. The Commission also provides protection to applicants, their relatives up to the fourth degree, and persons close to them.
Protection application process
Abdullah presented on the mechanism for submitting applications for protection. An application is lodged to the PACC Chair, using the approved form. Of note, the applicant may use any possible means, including social media, transcribe their application into an approved application, and file that from the PACC Chair. Consequently, based on relevant recommendations, the PACC Chair makes a decision on the application for protection. If the application is endorsed, the procedures for providing proposed protections are initiated. The applicant is then informed by a notice, which they sign and pledge to comply with.
Supporting documentation of the decision made by the PACC Protection Unit includes documents which the Unit decides to be enclosed with the application. These involve information and evidence which demonstrate seriousness and link of the application to the proof of commission of a corruption crime, proposed protection procedures, and expenses needed for implementation in case the application is admitted.
What are the conditions for granting protection?
Abdullah made clear that the applicant must act out of good faith (i.e., fulfil the capacity prescribed by the Regulation). Ascribing it to prejudice, this clause triggered a large number of reservations by participants in the hearing session. In principle, good faith should be presumed to be maintained by all applicants until there is evidence to the contrary. Furthermore, actual or potential damage must be in place. A causal relationship between the actual or potential damage will be established. It is required that the affected person appear at the PACC and file a complaint in order to receive protection.
In 2022, while protection was provided to three cases, 29 out of 32 applications were rejected
On the ground, Abdullah indicated that, over the past two years, the proportion of rejected applications for protection was high. In 2021, 35 out of 42 applications filed to the PACC were turned down. Three of 32 applications were approved. Twenty nine (29) requests were refused. In one case, protection was provided after a complaint had been lodged. According to Abdullah, protections provided by the PACC Protection of Witnesses and Whistleblowers Unit are evaluated on a quarterly basis.
Complaints against the PACC decision on the denial of protection
Abdullah accounted for the mechanism, which citizens can use when their applications for protection are rejected. Applicant may file a complaint to the PACC Chair within a period of ten days from the date of the decision on refusal of the application. Then, the complaint is handled and disposed within seven days from the date of filing. Applicant are also entitled to have recourse to the competent (administrative) court in the event their complaint is rejected.
PACC budget allocated for protection
The Regulation addresses protection expenses, assistance, and compensation. Accordingly, the PACC bears all the expenses arising from protection, including assistance to whistleblowers and witnesses and payment of compensations to applicants. In some cases, by contracting an insurance company, life insurance is provided to persons under personal protection only.
At the close of the hearing session, participants addressed a number of questions to the PACC. These inquiries mostly focused on the concept of good faith as a prerequisite for approval of the application for protection. Participant asked how employment protection is provided to ward off some vindictive punitive measures taken by officials and why the PACC has rejected a large number of requests for protection over the past few years. Interlocutors also addressed issues that outraged Palestinian public opinion, including the case of two female staff members of the Supreme Constitutional Court. In spite of the fact that both submitted applications for employment protection to the PACC, these employees were removed from office and faced criminal prosecution.
AMAN is of the opinion that public awareness needs to be raised about the concept of protection. The Regulation needs to be revisited on a regular basis to ensure that protection is provided to witnesses, increase public confidence, and stimulate citizens to report instances of corruption.