United Arab Emirates: A Guide To Whistleblowing And Various Regulations In The Middle East

Last Updated: 14 January 2019
Article by STA Law Firm
Most Read Contributor in United Arab Emirates, September 2019

1. Understanding Whistleblowing

Whistleblowing is an act wherein the public or authorities are informed of an illegal activity taking place in an organization. It is also called good faith reporting. It is an act of drawing the attention of the public or authority to exhibit an unethical activity which may either be illegal or immoral. Janet P. Near and Marcia P. Miceli has defined the term 'whistleblowing' in Organizational Dissidence: The Case of Whistle-Blowing (Vol.4, No.1-1985) as the following-

"...the disclosure by organizational members (former or current) of illegal, immoral or illegitimate practices under the control of their employers, to persons or organisations that may be able to effect action."

Since the term does not explicitly lay down the list of activities which are to be included, the scope of the term is broad, and it may consist of any pursuit which is unlawful as per the jurisdiction of the deciding state. Examples include- fraud, safety violation, health violation, misconduct, exploitation, discrimination, etcetera.

Janet P. Near and Marcia P. Miceli in their case study on whistleblowing has also explained the concept of whistleblowing through a four-step process, and it may be described as the following:

  1. The identification of the wrongful act.
  2. The act of reporting.
  3. The response of the organization towards shutting down the reported activity.
  4. The response of the organization towards the whistleblower.

The activity being reported or informed may be such that it may be taking place or has already taken place. In general, whistleblowing consists of two types namely-

  1. Internal whistleblowing
  2. External whistleblowing

Internal whistleblowing is a kind of whistle-blowing wherein a person provides the information within the organization, whereas in the case of external whistleblowing, the information is reported by a person outside the organization involved.

The person who informs the authorities or the public of the illegal activity is called a 'whistleblower.' Since they are the ones who report the information, they often face retaliation from the accused. Once the whistle is blown, they are at the risk of being affected and may undergo reputational and other severe damages. It is for this reason that whistleblowers must be protected and therefore the safety of whistleblowers is highly recognized throughout the world and is a matter of high priority for the legal system. At present, most nations have formulated and adopted policies for the protection of whistleblowers.

2. International Position on the Concept of Whistleblowing

There has been an increase in the acknowledgment of, and considerable importance has been given to the notion of whistleblowing. The need for the establishment of a whistleblower policy is to prevent fraud and unethical activities within an organization and to secure a better institutional culture thereby increasing efficient management and transparency.

Before the development of the protection of whistleblowing, whistleblowers were not very well recognized or accepted, hence, they were treated as traitors. Now, the standpoint against whistleblowers is more optimistic. Countries around the world are working on formulating policies for the protection of whistleblowers. Most signatory states to the United Nations have ratified and adopted the United Nation Convention against Corruption (UNCAC). The Convention provides for promoting anti-corruptive activities within the public and private sector, and the protection of whistleblowing is also covered under it.

The International Labour Organization (ILO) defines whistleblowing as:

"The reporting by employees or former employees of illegal, irregular, dangerous or unethical practices by employers."

However, since protection of whistleblowing is a developing concept in law, it is not easy for the countries to implement a strict policy on whistleblowing.

The United Nation Convention against Corruption (UNCAC) mandates member countries to adopt legal provisions for the protection of those who report corruption and other related offences from reprisal. The Article 33 (Protection of reporting persons), provides for the following whistleblower protection:

"Each State Party shall consider incorporating into its domestic legal system appropriate measures to provide protection against any unjusti_ed treatment for any person who reports in good faith and on reasonable grounds to the competent authorities any facts concerning o_ences established in accordance with this Convention."

In Europe, the Civil Law Convention on Corruption is an agreement which came into force in 2003, and it deals with preventing corruption amongst the member nations

Article 9 of the Convention specifically lays down the provision on the protection of whistleblowers;

"Each Party shall provide in its internal law for appropriate protection against any unjusti_ed sanction for employees who have reasonable grounds to suspect corruption and who report in good faith their suspicion to responsible persons or authorities."

The Organization for Economic Co-operation and Development is an international organization which is established to promote international trade and stimulate the economy. The organization also focuses on maintaining anti-corruptive practices and good governance. In 2003, The Council made a recommendation on the guidelines for managing conflict of interest in the public services. the guidelines aim to make recommendations to member countries in accordance with their political, administrative, and legal framework. The Guidelines recommend (2.3.2):

"Develop complaint mechanisms to deal with allegations of non-compliance, and devise e_ective measures to encourage their use. Provide clear rules and procedures for whistleblowing, and take steps to ensure that those who report violations in compliance with stated rules are protected against reprisal, and that the complaint mechanisms themselves are not abused."

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