LETTER | The law accords immunity or protection to numerous categories of person against any civil or criminal proceedings in the performance of their duties and functions.
The list is long - whistleblowers included.
Section 7 of the Whistleblower Protection Act 2010 (Act 711) provides as follows:
7. Whistleblower protection
(1) A whistleblower shall, upon receipt of the disclosure of improper conduct by any enforcement agency under Section 6, be conferred with whistleblower protection under this Act as follows:
(a) protection of confidential information;
(b) immunity from civil and criminal action; and
(c) protection against detrimental action,
and for the purpose of paragraph (c), the protection shall be extended to any person related to or associated with the whistleblower.
(2) A whistleblower protection conferred under this section is not limited or affected in the event that the disclosure of improper conduct does not lead to any disciplinary action or prosecution of the person against whom the disclosure of improper conduct has been made.
(3) This Act does not limit the protection conferred by any other written law to any person in relation to information given in respect of the commission of an offence.
The protection, however, is not absolute. Section 11(1) allows for revocation of the protection. It provides as follows:
11. Revocation of whistleblower protection
(1) The enforcement agency shall revoke the whistleblower protection conferred under Section 7 if it is of the opinion, based on its investigation or in the course of its investigation that -
(a) the whistleblower himself has participated in the improper conduct disclosed;
(b) the whistleblower wilfully made in his disclosure of improper conduct a material statement which he knew or believed to be false or did not believe to be true;
(c) the disclosure of improper conduct is frivolous or vexatious;
(d) the disclosure of improper conduct principally involves questioning the merits of government policy, including the policy of a public body;
(e) the disclosure of improper conduct is made solely or substantially with the motive of avoiding dismissal or other disciplinary action; or
(f) the whistleblower, in the course of making the disclosure or providing further information, commits an offence under this Act.
Clearly, the immunity or protection accorded to a whistleblower under the Act is not absolute.
Another example of immunity that is not absolute can be seen in Section 72 of the Malaysian Anti-Corruption Act 2009 (Act 694). It provides as follows:
72. Immunity
No action, suit, prosecution or other proceedings whatsoever shall lie or be brought, instituted, or maintained in any court or before any other authority against -
(a) the government of Malaysia;
(b) any officer or employee of the government of Malaysia or of the Commission;
(c) any member of the advisory board or the special committee or any other committee established under or for the purposes of this Act; or
(d) any person lawfully acting on behalf of the government of Malaysia, Commission, officer or employee of the Government of Malaysia or Commission,
for or on account of, or in respect of, any act done or statement made or omitted to be done or made, or purporting to be done or made or omitted to be done or made, in pursuance or in execution of, or intended pursuance or execution of this Act, or any order in writing, direction, instruction, notice or other thing whatsoever issued under this Act:
Provided that such act or such statement was done or made, or was omitted to be done or made, in good faith.
The immunity or protection above is only when the act complained of was done in good faith.
Even judges of the superior courts – the Federal Court, the Court of Appeal and the High Court, including the chief justice of Malaysia, the president of the Court of Appeal, and a chief judge of the High Court - do not enjoy absolute immunity.
Section 14(1) of the Courts of Judicature Act 1964 (Act 91) states as follows:
14. Protection of judges and other judicial officers
(1) No judge or other person acting judicially shall be liable to be sued in any civil court for any act done or ordered to be done by him in the discharge of his judicial duty, whether or not within the limits of his jurisdiction, nor shall any order for costs be made against him, provided that he at the time in good faith believed himself to have jurisdiction to do or order the act complained of.
Clearly again, the immunity accorded to judges and other judicial officers is only a qualified immunity given to the judicial officer who acted in good faith and believed to have jurisdiction to carry out the act or make the impugned order.
The immunity can be pierced when the judicial officer acted mala fides, ultra vires or without jurisdiction, among others. In the case of Rosli bin Dahlan v Tan Sri Abdul Gani bin Patail & Ors [2014], judicial commissioner Vazeer Alam Mydin Meera (as he then was) observed as follows:
“So, it can be quite clearly seen that whenever the Legislature provided for statutory immunity from legal proceedings for public officers, it has always come with a rider, and that rider was the requirement of good faith in the exercise of that public officer’s powers or discretion. The shield was never an absolute one.”
In that case, the learned judge even noted that prosecutorial immunity of the attorney-general is not absolute. The immunity is but qualified. When the statutory power is wrongly exercised, it becomes the duty of the courts to intervene.
The learned judge said:
“If the attorney-general as the custodian of prosecutorial power exercises his prosecutorial discretion for other than its constitutional purpose or exercises it based on some irrelevant consideration or exercises his discretion unlawfully or the prosecutorial power is abused for some improper purpose, then that decision can become justiciable and the courts have a duty to render assistance to an individual who has been aggrieved by that decision.”
In short, there is no blanket immunity.
What does former law minister Zaid Ibrahim mean when he urged MACC chief commissioner Azam Baki to be “unequivocal” and “remove the uncertainties of the immunity” to the whistleblower who allegedly has video evidence of alleged corruption involving several state assembly persons?
The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.
