Protecting the Brave

Serbian Legislation has yet to provide mechanisms to protect individuals working in the public or private sector who approach the authorities about corruption by their superiors. However, protection of whistleblowers is a requirement of GRECO, the Council of Europe's anti-corruption organization.

Despite Serbia's lack of adequate whistleblower protection, every once in a while a person lodges a report resulting in the disclosure of a corrupt superior or prevents something bad from happening. Mostly this is done through telephone hotlines allowing people to report wrongdoing free of charge and without giving their names. One well- known hotline was established by the Customs Service several years ago.

The 2004 Law on Free Access to Information of Public Significance also helped improve the situation despite its lack of whistleblower protection provisions. Yet it has often been the case that laws can have positive effects in areas other than the ones they were initially written to regulate.

A scam involving toll collected on the Belgrade-Nis highway was uncovered by a former employee of Putevi Srbije, a public company tasked with road management, who first approached Information Commissioner, and then went to the police. This is an obvious demonstration of the changing awareness of state employees and the public alike, according to Dejan Milenkovic, with the Lawyers Committee for Human Rights.

Milenkovic adds that proposed amendments to the information law and a bill on classified information, both submitted to Parliament by citizens' groups on Nov. 22, 2007, contain provisions dealing with whistleblowers.

This initiative includes a sentence that would prevent whistleblowers from suffering any consequence for their actions provided that they believe their suspicions are valid.

Both pieces of draft legislation have been supported by several organizations from the Coalition for the Freedom of Information in cooperation with the Youth Initiative for Human Rights.

Keeping One's Job

Whistleblowing is recognized by international law. There is a great deal of expert consensus on the need for every public institution and private organization, regardless of size, to possess a clearly defined procedure for resolving any objections within the organization itself. Often this is not possible. The form of behavior prevalent in the workplace is such as that mistakes are never discussed in public. Employees are afraid that giving out sensitive information will lose them their job and the favor of their coworkers. It is this fear that kicks in when a lower-ranking employee discovers that his boss is up to no good.

The OSCE handbook for corruption-fighting says that employees who notice mistakes or corruption have several options. They can bring the problem to the attention of their superiors by filing a report, take the problem to an outside authority, or go to the media. In most cases, however, employees prefer not to do anything, thereby perpetuating the problem.

The law needs to ensure that employees can take their case to bodies within their organization, or a public supervisory body. As for public-sector employees, they would be able to seek assistance from an ombudsman, anti-corruption agency, or auditing institution. Another possibility is notifying government officials, either elected or non- elected, or the media. This is considered a last resort.

Hence the need to give people a safe and acceptable way to take action against their employers. This would help uncover illicit activities at an early stage and with the least amount of fuss. The public also has to keep track of and react to every attempt to prevent the reporting of information provided by whistleblowers.

According to Milenkovic, inside information on corruption is an especially effective approach to dealing with this issue that is usually included in freedom of information laws as well as laws on top secret data. Secrecy provisions can be used to protect whistleblowers, who are a source of information.

Public servants would not be held legally responsible for reporting corruption or illicit activities committed by their superiors. These individuals must enjoy protection because they went out on a limb for the greater good.

This protection would include situations where an individual has violated his legal or contractual obligations, provided he did so in good faith and some important public interest in mind, Milenkovic stresses.

The Truth or Friendship

Milenkovic goes on to say that for many years public servants stayed away from public criticism of state policy, especially administrative institutions. Those who did were more likely to face condemnation from their peers than be hailed as heroes. "This is called organizational ethnics and has a strong influence on public servants. Organizational ethnics necessitates loyalty and adherence to institutional tactics and policy. In return, it offers 'friendship', security, promotion, and shared adventures as part of a common endeavor."

Organizational ethnics, according to Milenkovic, is common in most organizations, especially public administration. It requires blind conformism, which means that employees, regardless of whether they are truly loyal or fear losing their job and reputation, have a tendency to yield to their boss and avoid criticism and controversial issues at all cost.

Systems of this sort shun the clever since they are not the right people for the job. Milenkovic adds that change is slowly beginning to appear in the west, largely as a result of international documents that have been adopted.

In 1996, the Organization of American States adopted the Inter- American Convention Against Corruption, which provides protection to whistleblowers in government. The same type of protection is provided by the Council of Europe's convention on corruption.

The Watergate Scandal

Probably the best-known whistleblowing affair is the Watergate Scandal, which led to the resignation of then-U.S. President Richard Nixon in 1974. Mark Felt, then associate director of the Federal Bureau of Investigation, fed information to Washington Post reporters Bob Woodward and Carl Bernstein. Dubbed Deep Throat like in a spy thriller, Felt helped the reporters by giving them hints about a surveillance operation carried out by Nixon's Republican Party. The best-known of this hints was "follow the money trail," which led Woodward and Bernstein to a link between the Watergate burglars, the headquarters of the rival Democratic Party, and Republican donations. The identity of the brave FBI official was hidden for over three decades for security reasons. Felt publicly admitted to being Deep Throat only in May 2005.

The Public Interest Disclosure Act in the UK seeks to promote responsibility and proper management in organizations by encouraging employees to point out irregularities at the places where they work, while ensuring they are safe from persecution. The law also provides employees with protection from termination and punishment when they follow the prescribed procedure. People are allowed to act in cases where a crime has been committed or a judicial body has made a mistake, as well as when the community's health and safety are in danger, the environment is jeopardized, and attempts are made to cover this up.

A good example is the relatively recent case of Katharine Gun, a former translator for the General Communications Headquarters, a British intelligence agency. In early 2003, she received an e-mail from an American official with detailed plans to bug the offices of diplomats from U.N. Security Council member countries. Gun was so shocked by the e-mail that she forwarded it to the press. The leak was a big embarrassment for the British and American governments.

Gun later admitted to leaking the information and ended up getting charged with espionage. In February 2004, the charges against her were dropped. It is believed that the evidence that would have come to light during the trial would have done even more damage and confirm that bugging and other methods were used to secure support for the war in Iraq. In a country where half the population opposed attacking Iraq, Gun probably would not have been convicted. Yet she was outside of the protection of British law. She ended up losing her job and the only reason she avoided prosecution was because of the potential fallout. Other countries offer whistleblowers much greater protection. South Africa provided explicit protection. U.S. laws are also supportive, both at the federal and state level.

The need to pass legislation to protect whistleblowers became apparent in 1986, when the space shuttle Challenger exploded during takeover. It was later revealed that engineers had urged postponing the launch due to problems that had been observed.

Public Servants or Followers

According to Milenkovic, the follower model long dominated the Serbian administrative apparatus. "First it was instituted by the socialist system that governed Serbia over the last 40 years, and then the regime that ruled during the 1990s reinforced this view, and it was always the sycophants who were more servile to the bosses and senior officials than the critical minded. However, the crux of the problem is that Serbia still hasn't made the transition from an administrative system based on force and coercion to one that is intended as a service to its citizens."

Yet in Milenkovic's opinion, even today conscientious civil servants can file anonymous reports, thereby avoiding the risk of dismissal, being forced to resign, or having their salary docked.