In the context of inherent secrecy for reasons of fair competition, particularly in public procurement, credible evidence of wrongdoing can only be secured with the voluntary cooperation of people breaching confidentiality to provide the press, the public, and eventually the authorities, with evidence only they are privy to.
Whistleblowers are by definition vulnerable. They are liable to lose their income and suffer the consequences of breaches of confidentiality and secrecy rules. They are also likely to hurt their employment prospects no matter how noble their sacrifice.
Whistleblowers are also imperfect people. For a time at least they may have been complicit in the wrongdoing they decide to expose. Their motivation for exposing their former colleagues or superiors may be unsavoury. This exposes them to attacks on their credibility and character in order to discredit the value of the information they provide, however truthful.
Existing whistleblower legislation only grants legal protection to witnesses if the government agrees to grant it. This has been exploited by Joseph Muscat’s administration that declined to grant protection to witnesses who could expose its
wrongdoing. The government instead conducted full-scale campaigns of intimidation to silence them. This has extended to the persecution of a witness outside the country using the apparatus of the State for attempts at extradition. In the prominent case of Maria Efimova, a whistleblower in the Pilatus Bank scandal, it was only thanks to the intervention of the courts of another EU Member State that she is, for the time being, protected from punitive measures taken against her in the Maltese courts by the former employer she exposed and by Joseph Muscat.
We recommend that the transposition of the new EU Directive on the protection of whistleblowers27 is used as an opportunity for credible reform in this sector. We are dismayed that the government has just announced it will only transpose the Directive at the last possible moment allowed (December 2021) in contrast with other EU member states that have started the transposition process in earnest. We are also frustrated that the government has not yet published any draft legislation, let alone commenced material consultations with civil society on the subject.