07/03/2022
Two years have passed since Marwa’s life turned upside down because she blew the whistle. In February 2021, she was fired from her job in the Supreme Constitutional Court despite a protection order she had obtained in January 2020. She says, “The protection order ruined my professional and personal reputation; I was dismissed from my job, and I am still jobless. The implementation of the order transformed me from a person who spoke out against corruption to a suspect who has a security file!”
On October 7, 2019, the Palestinian Authority ratified the regulation on the protection of whistleblowers, witnesses, informants and experts in corruption cases and their relatives and persons related to them. This regulation is based on the provisions of the amended Basic Law of 2003 and its amendments and the Anti-Corruption Law No. (1) of 2005 and its amendments.
Information on the novel whistleblower protection regulation in Palestine is scarce and difficult to obtain. Moreover, the topic is sensitive, and many whistleblowers are reluctant to discuss their situation. Over the past three months, the investigator managed to communicate with eight people about their cases and followed up on four of them: In all these cases, the whistleblowers’ right to protection has been violated.
On Thursday, December 26, 2019, Marwa Farah reported a suspected instance of corruption at the Supreme Constitutional Court to the Palestinian Anti-Corruption Commission. She requested professional and personal protection as she was afraid of being transferred from her workplace. She also wanted to make sure that no one would tamper with the papers and files that confirm the validity of her complaint. Marwa was the Court’s Secretary-General office director, and this office ususally contains a large part of the archived material she used in her whistleblowing report.
On the morning of Sunday, December 29, 2019, Marwa went back to the Anti-Corruption Commission to confirm her report and then proceeded to her office at the Court. She says, “The Constitutional Court was in a state of chaos upon my arrival. An employee from the technology department was tampering with my computer. At the end of that day, the head of the Constitutional Court issued the decision to relief me from my duties as director of the Secretary-General’s office.”
On the following day, the head of the Constitutional Court issued an order to transfer Marwa to a new position at the court registry office without assigning her any tasks. He also convened an investigation committee that accused Marwa of violating the professional codes of conduct and the ethics of holding a public office by leaking documents to external parties.
Bilal Al-Barghouti is the legal advisor to ‘E’tilaf’ or the “Coalition for Integrity and Accountability - Aman” and a member of Transparency International. He explains that forming investigation committees to deal with an employee who became suspicious due to reporting some malpractices at the organization is illegal since this amount to prosecuting the person who reported the crime.
Marwa later obtained a protection order, and as she tried to proceed with work as normal she discovered that she was not assigned any tasks.
“I would sit in the court, shunned by other employees, and no one would communicate with me,”
she says
This investigation has reviewed all annual and quarterly reports issued by the Anti-Corruption Commission from 2017 until the second quarter of 2021 and has noted that 23 protection orders were granted out of 66 filed since this regulation has been endorsed in November 2019 up until the second quarter of 2021.
3429
The total number of complaints from 2017 to the second quarter of 2021
2471
The total number of complaints from 2019 to the second quarter of 2021
Note: Complaints and reports in every year are calculated independently from those rolled over from the previous year
The complaint
Number
The complaint
Number
The complaint
Number
The complaint
Number
The complaint
Number
The complaint
Number
Bilal Al-Barghouti explains that the United Nations Convention is the most important international anti-corruption agreement which Palestine formally adopted in 2014. He adds that the convention stresses the importance of protecting whistleblowers, witnesses and experts. It also provided the means and tools that should be granted by member states. Additionally, it encourages whistleblowers and urges that they get rewarded.
The regional adviser for the Middle East and North Africa at Transparency International, Kinda Hattar confirms that most Arab countries, including Palestine, have ratified the United Nations Convention. This means that the state must take appropriate measures to amend its national legislation.
As Marwa was struggling during her own whistleblowing journey, Amira Shihadeh was experiencing a similar fate. Her story began on September 7, 2020 when she decided to testify about financial and administrative corruption in the village council of Urif in Nablus, which is affiliated with the Ministry of Local Government. She had been working as an accountant there for nine years.
A citizen in the village submitted a complaint to the Anti-Corruption Commission about violations in a tender for a waste collection project. The commission asked Amira to testify in the case. Indeed, she gave her testimony. She says, “There was a suspicion of manipulation in the tender procedure, as the tender was awarded to a relative of the council’s president for a higher price.” Amira has objected to this bid from the start. Amira’s role was to simply testify as the the Anti-Corruption Commission learned about the issue through an anonymous complaint.
Amira’s testimony was confidential and she did provide evidence that proved the validity of her testimony. Shortly after that, she started noticing a car that would follow her home, and she started to receive threatening calls.
I called the Anti-Corruption Commission and told them what was happening. They advised me to request a protection order to stop the pressure I was facing.
Amira was wondering how the village council would know of her testimony since the meeting was confidential and no one knew about it.
Amira got the protection order two weeks after lodging her request. She remained committed to her job despite the pressure she was facing. Next, she was surprised by the decision to stop her from doing accounting work in the council, and she was asked to appear before an internal investigation committee.
The head of the unit for protecting witnesses, whistleblowers and experts at the commission, Wala’a Abdullah, says, “The commission must feel that there is a great possibility that protection would be needed. If the binding conditions for the protection decision are met, the person filing the case must sign a pledge that commits him/her to certain obligations, which vary from case to case.”
Researcher in constitutional law, Muhammad Khader, believes that these conditions signed by whistleblowers to ensure their protection are usually improvised. The purpose of this regulation is to reassure and protect whistleblowers, but these conditions lead to intimidating and terrorizing them. Bilal Al-Barghouti says,
“The bearer of the whistle is merely required to blow it;
otherwise, it turns into a burden for the reporter. These conditions terrorize the whistleblower and apply pressure on him/her.” Al-Barghouti emphasized the need to encourage fighting corruption and providing protection instead of imposing conditions or pledges on whistleblowers.
In just one year, Amira became a victim of the weak application of personal and professional protection regimes and she was dismissed from work in 2021 on the same day she testified against the council in 2020.
“I lost my job because I told the truth, and I was punished for it. Never again would I trust government agencies and organizations; if I had personally protected myself, I wouldn't be in this state now.”
The whistleblower protection regulation approved in 2019 classifies protection into three types, as follows:
Professional protection: These are the measures taken to ensure that the person requesting protection is subjected to no harm at his place of work as a result of reporting corruption. This is done by protecting the whistleblower from any administrative decision that changes the legal or administrative remit or detracts from the person’s rights. It also stops any action that leads to abuse or mistreatment that impacts the status or reputation of the person or leads to discrimination against him/her. This is the most common type of protection provided by the commission.
Personal protection: These are the measures taken to ensure that the person requesting protection is not exposed to any moral, physical or financial harm. This is done by protecting the place where they live or reside and by ensuring the safety of transportation. This may require changing the place of residence or work and monitoring their phone lines or changing phone numbers if necessary. In some cases, modern communication technologies could be used in the efforts to conceal their personal information and replacing those with special codes.
Legal Protection: These include measures taken to ensure that the person requesting protection is not partly prosecuted as a result of reporting a corruption case or due to testifying in one. It also provides protection against any legal accountability due to the information he/she provided to the commission.
Anti-Corruption Commission report for 2020 and 2021 details protection orders as follows:
Professional protection
Legal protection
Personal protection
Note: A request may include more than one protection type at the same time.
Yassir Khatatbeh has been trying hard to deal with the impact of his decision to blow the whistle four years ago. Yassir, a businessman from the village of Beit Furik in Nablus, lives with his family and children and earns his living the hard way. He is known for telling the truth. In July 2017, Yassir decided to blow the whistle when he suspected that there was corruption in the Beit Furik local council regarding deals supplying water to the village.
Yassir insisted on filing the complaint to the Anti-Corruption Commission and on following up with them continuously. He also took his complaint to the Bureau of Financial and Administrative Oversight, the Ministry of Local Government and the General Secretariat of the Council of Ministers. He says, “Over time, I felt that the complaint did not matter to them and that they were not interested in taking any steps to stop it. They stopped answering my calls, and they would postpone or cancel my visits every time.”
No action was taken about Yassir’s report until the beginning of 2018, which started with a series of legal procedures lodged against him. This has impacted his work and social life, and this has continued even after this investigation has been published.
Yassir did not know about the whistleblower and witness protection regulation because his complaint was filed before this regulation was ratified in 2019. Defamation, slander and libel cases were filed against Yassir, and he was imprisoned several times in connection with these cases. He says, “I am still awaiting to be informed about the protection regulation that I had no knowledge of.” Yassir decided to seek protection: To date, he has not received a response, and he still appears before the courts and the judiciary system. “The failure to activate the protection law for me as a citizen who reported incidents of corruption has caused endless problems. People are afraid to talk to me, and my work and business have been impacted,” he says.
Wala’a Abdullah notes that the commission cannot offer help in cases of defamation and slander because the law must take its course. Since Yassir’s file was referred to the judiciary system, protection was not provided. Article (11) of the Whistleblower Protection Law No. (7) of 2019 stipulates that “the commission provides legal protection for those seeking it from criminal prosecution as a result of reporting a crime of corruption or due to testifying in such cases.” This shows that the commission has the authority to prevent the criminal prosecution of whistleblowers.
Kinda Hattar clarifies that most Arab countries have ratified the United Nations Convention against Corruption. Its implementation, however, depends on the institutional capacity within each state and on the principle of separation of powers and the independence of the judiciary. It also depends on the existence of a legislative oversight body that monitors the executive authority’s performance. This is in addition to the presence of independent institutions within the state, such as anti-corruption bodies or watchdog that are able to work effectively without political interference. The efficiency of such bodies usually guarantee the protection of whistleblowers.
Yassir was not the only one who had to appear before the judiciary system because of defamation and slander cases; Muhammad Dweikat fought the same battle. Muhammad says that he was dismissed from the municipality of the city of Nablus because he objected to administrative and financial malpractices and violations in 2019.
Muhammad noticed that there were “unreasonable” practices during the year he spent as an elected member of the municipal council. He confronted his fellow members with their mistakes, but nothing changed. He filed complaints to several entities until he was dismissed from the council.
“They decided to fire me even though I was elected by the people.”
Muhammad took the matter to the Anti-Corruption Commission and filed a complaint. When he was notified of the first complaint filed by a council member against him on charges of defamation and slander, he requested legal protection.
On August 10, 2021, Muhammad was notified that he had been denied protection. The commission justified its decision by stating that upon examining the request, it was “revealed that the criteria for requesting protection had not been met.”
In order to provide protection, several conditions need to be met: One of these is that the whistleblower shows “good faith” and that the application process is not done in order to “take advantage of any disputes or problems the applicant (already) has.” There should also be a “causality between the danger, the protection requested from it and the report that was submitted to the commission. Wala’a Abdullah says, “Certain criteria have to be met, including the assumption of good faith and causation. Protection is denied when these conditions are not fulfilled.” Muhammad Khader says,
The whistleblower is not a detective and is not required to provide evidence. This does not mean that evidence must be provided in order to report a suspicion of corruption. If that was the case, we would not have anonymous reporting in some cases.
Kinda Hattar asserts that protecting whistleblowers is the responsibility of the state, and no conditions should be met prior to provide the necessary protection, “Providing protection incentivizes people to report corruption. In all case, personal protection is the responsibility of the state” she says.
Following are results obtained by the Anti-Corruption Commission in 2020 and 2021 on protection requests, based on rejection or acceptance:
Number of accepted requests 23
Number of rejected requests 56
Total : 79
Number of protection requests by outcome: acceptance or rejection
Total number of applications : 25
8
17
Total number of applications : 5
1
4
Total number of applications : 8
2
6
Total number of applications : 18
10
8
Total number of applications : 4
1
3
Total number of applications : 4
1
3
Total number of applications : 5
0
5
Total number of applications : 0
0
0
Total number of applications : 2
0
2
Total number of applications : 2
0
2
Total number of applications : 3
0
3
Total number of applications : 3
0
3
Note: Even though all applications in the second quarter of 2021 were rejected, the commission granted precautionary protection to one request.
Muhammad was arrested, detained and interrogated in August 2021. He was released, but a series of prosecution cases remain pending against him. He says he is paying the price for reporting corruption.
Bilal Al-Barghouti says that the protection regulation issued in 2019 was a primary requirement for the ‘Aman’ coalition, but unfortunately, “to date, there has not been an actual or serious application of the regulation.” Muhammad Khader explains that the regulation has to be activated rather than modified. Additionally, the competent authorities should assume their responsibilities and duties in order to enforce the protection orders.
Wala’a Abdullah says that the regulation on protecting whistleblowers and witnesses is a new development that was approved under the Anti-Corruption Law. This means that instructions that support the implementation of the regulation must be issued. Unfortunately, to date, there have not been any instructions or laws in place that govern the protection regulation or the work of the unit for protecting whistleblowers and witnesses.
Two years ago, President Mahmoud Abbas delivered a speech during the opening ceremony of the first international conference organized by the Anti-Corruption Commission, and a video clip of his speech was circulated on social media sites: The instructions were clear: “We have seriously decided to fight corruption. Receiving any message from anyone about corruption should be enough to follow up on it from A to Z. Do not let the fear of reproach by people distract you from doing your duty towards God: investigating the case must follow its course and reach the public prosecutor and later the courts. Come what may: We do not want corruption here!”