Debate

Dear all,

Hopefully, this email finds you all well. As you already know, our website has been launched and all the relevant material (studies, laws and news) are already uploaded.
Now, we’re moving to the second stage of our project, namely the debates between our experts.
Technically, this is going to happen through this newly created email-list. First, we’ll send you a keynote question and we’ll expect you to reflect on our question in (/reply to all/) emails. We would also like you to reflect on each others’ answer as well, not only our initiating question – so as to make it a real discussion.

We’ll have approximately 4-5 debates (all in connection with whistleblowing), and we’ll have 2 weeks for each discussion. After the completion of one topic, the whole debate will be edited and published on our new website. (http://www.whistleblowing-cee.org/debate/)

Our first topic is in connection with NGOs’ lobby power. As you might know, Slovenia has adopted a new anti-corruption act. Therefore, we would like to ask Simona to tell us something about their fight with respective policy-makers, and tell us how and to what extent they could influence the development of the new regulation.

We would also like to ask the others to tell us their opinions on the possibilities of civic lobby in their country.

Best regards,

Julia

————-

Slovenia’s Društvo Integriteta is the only civil society movement for the moment, an NGO dealing with issues of corruptive practices in Slovenia. We started with voluntary work in our NGO in 2009. Since then we are successful in promoting the idea of integrity and transparency through people who believe in what we do and believe in integrity.
Few basic points come to my mind in re-thinking so called lobbying NGO’s institutions? As the report is already online, I would like to put an emphasis on a few interesting points for a debate and on my personal experience in talking and debating to other stakeholders in this field. I will use journalistic discourse, as this is a debate, I think I can afford this.

So called “lobbing” has to be systematic and organised, I believe. As much as in NGO status of constant “fight” for survival this can be achieved at all. My basic profession is journalism. This gives me the benefit of knowing the media, how they work, how they respond, what can you (if I may be little rude) “feed” them. This was important in our early days, as we struggled for recognition in the society as an organisation first. Communication strategies later on in the process of “proving” the ideas and proposing the new articles for legislation are also very important. Media helped us in promoting human rights, between others in access to information, which is crucial in whistleblowing protection. I will add a case. We had a case where an MP had cheated at an exam in German language and he was reported to the Commission. At the same time, he was head of the parliamentary commission to overview the work of CPC. He managed to pass the “black hole” in Slovenia’s legislation and changed the rules for the work of the parliamentary commission. These changes included the disclosure of cases CPC is dealing with to this commission. This meant that he could see who reported him, and bring down all efforts in protecting the whistleblower. In short, the chair of the CPC did not obey this changed rule, as it  was obliviously a political agenda and in my opinion a  possible attack on a right to report corruption and stay anonymous. Slovenia is a small country, even if personal data such as name and surname would stay untouched, people would know from disclosed context that someone is blowing the whistle. We then did not directly comment on this issue, but asked people to blow the whistle anonymously, and media helped us promoting the idea.

Secondly, our experience is that if we share something special publicly the public opinion about a person who fights for whistleblowers’ protection or/and is a whistleblower himself changes, what is more it brings one to a higher level in arguing about how the legislation should look like. We have a whistleblower on board, Erik Brecelj, dr.med, who uncovers irregularities and corruption in  health sector publicly. He is highly valued and all people with power and politicians love him. They can identify with him and would use him for political points. So with his permission we “use” him to help us influence the public opinion and as a “case” to help us develop better legislation proposal. We also managed to get help from the former ombudsman for human rights.

Thirdly, cooperation with distinguished institutions is crucial. We have very good information flow with the information commissioner, the commission for prevention of corruption, the court of audits, the public relations officers other institutions. Our experience is the following. If the person, leading these independent bodies is a strong personality, the institution is doing their work. For example heads of those institutions really cooperate with the NGO sector which changed the anticorruption field tremendously.

The fourth dimension of the issue of re-thinking whistleblowers, I would put hard work with ministries covering this field, later on also with the state secretary, who wrote the act. It was oblivious, that before passing the legislation on whistleblowers protection (there is also lobbying covered in this act) we have to learn how to lobby. It seemed that his Act was deemed to failure. It included lobbying and conflict of interest of the mayor to be an MP at the same time. The law (these articles) of course did not pass, solutions were taken elsewhere in local legislation, where also this proposal did not pass, but lobbing stayed.Interesting dimension is also in relationship with people who directly deal with commissions for legislation.
We managed to put obligatory financing of CPC for NGO’s in the Act – the proposal was promoted drinking coffee and bringing up the small talk. In the last phase this person at last understood why this is important to us and for the whole NGO sector. We got it on paper; hopefully NGO’s will get it for real too. Basic point is that personal attitude towards the legislator is crucial, how to promote and argue the needs for whistleblowers or NGOs dealing with this field.

Since 2008 we have cooperated pretty well with the commission for prevention of corruption; good relations led to a better promotion of our ideas and platforms for the development of the new law, which was adopted on 26th of May 2010. The Integrity and Prevention of Corruption Act came to force on June 5, 2010 bringing new regulations regarding whistleblowers protection as it is defined in the UN Convention against Corruption. Our work with the Commission for the prevention of corruption was crucial and when we met the common criteria and made the proposal everything went fluently. But also the important issue is the position on whistleblowers of your agency. We were pleased this part went fine.

We managed to promote 13 amendments to the legislation body (Ministry of administration) on proposed Act on integrity. Eleven are now included. Those were basically comments to proposal, passed in public debate. We also managed to get to know this topic on regional meetings of Transparency International and we were prepared on issues as how to translate the whistleblower term into Slovenian language, how to pose an article on what the whistleblower is reporting- how he/she knows he/she is reporting corruption or other criminal act, how to provide protection etc…

The basic challenge for us is to promote this Act, to influence the implementation and to be a watchdog for the usage of it. As employers are not respecting rights in this recessive times anyway, it is difficult to promote ethic boards, internal systems for whistleblowers protection and so on, these are the issues for us – how to “lobby” implementation of this legislation. We get few calls a day, people are scared to report corruption, there is still too much mobbing at work, people are frightened of losing their jobs over this or are quiet and do not want to get involved. These are issues, that one act cannot overcome but “loud” protection of whistleblowers and NGO’s helping them in the system can. We have everything on the paper, but reality is different. People are scared, even anonymous report can bring them down, as the country is small. Threats and other mechanisms employers or others use are also there. Even the anonymous number of the police or the possibility of a report online without any data do not encourage latent whistleblowers, as people know that even if there is a formal legal protection, they are not going to be protected. As this is the experience of our public whistleblower, we can say we are in theory acceptable, but in practice still far from being perfect. The platform is a good start, though. Now we as an NGO are connected to heath institutions – regarding mobbing issues on working places, pressure on workers, avoiding whisleblowers etc…
We also “forced” a representative of the government to give us written answer and promise active participarion of the Slovenian government in Doha 2009 and activities on UNCAC and its ratification, which is the only convention on corruption.

This is also interesting an thing to get this theme on the map of government representatives; this is something we are aiming at now.

Right now there is a new law on media, through which we also try to promote whistleblowers protection as the journalist has the right to cover the source of information, which is also a part of whistleblowing process.

I always argue with my colleagues if an NGO or CSO organisation can think business and act like one? Last, but not least the question for the debate would be- how can we make NGO lobbying transparent, too. How?

Simona Habic
Integriteta- association for ethics in public service

————–

Dear Lilia,

According to your country study the Executive Director of Transparency International Moldova holds the vice chairmanship of the Working Group on National Anti-Corruption Strategy Monitoring - a body composed of the vice ministers and two representatives of the civil society. We should be grateful if you could provide us with more information on your director’s possibilities regarding the influence she has on the anti-corruption work and legislation. We wonder how cooperative your ministers are when TI Moldova gives advice on important topics or asks for information on public interest. What are your means to change legal acts, who can you turn to (ministers, parliamentary committees, MPs)? We wonder if MPs are open to civil lobby work.

We’re looking forward to hearing from you. Please send your answers to everyone on the list!

Sincerely yours,

Julia

—————-

For several years I was the Vice Chair of the Working Group for monitoring the National Anti-Corruption Strategy. Since this fall I am just a regular member of this entity.
Now about our advocacy experience: As a member of this entity, we could add into the agenda our Working Group questions to be discussed at the meeting. So, whenever we wanted to advocate for modifications, we would bring our reasons and concrete proposals to the meeting. Of course, our proposals were not always convenient to the representatives of public institutions, but we kept sending them also to the Ministry of Justice, commissions in the Parliament, Centre for Fighting Economic Crimes and Corruption, State Chancellery, even to the General Prosecutor’s Office. Also we used to address our proposals to local offices of international institutions, missions, policy evaluating external experts. This helped to spread the message around and made public institutions more collaborative in this matter. Also whenever we would be invited to participate in a TV or radio programme, we would bring the discussion to the issue of lacks in the anti-corruption legal framework so that the public opinion on this issue would be more or less prepared. By the end of the year, when a new Action Plan for the implementation of the National Anti-corruption Strategy is elaborated, we insisted our proposals be included in this plan. That was the way the elaboration of the daft Law on Conflict of Interests, draft Law on Code of Conduct for public servants, the draft Law on the creation of the Commission of Ethics were included in the Action Plans.

When the draft laws were elaborated, TI-Moldova presented its expertise. Of cause, some of the proposals were accepted by public institutions and some – were not. This is why two years ago the Law on Conflict of interests was adopted, but it is not functioning. Last year we conducted a study of the implementation of the above mentioned law where we proved that the way the law is adopted at present is not effective. To advocate for the modification of the Law on Conflict of interests, as well as the Law on declaration and control of incomes and assets of the public servants, the Law on preventing and fighting corruption, the Penal Code, on December 24, 2009 TI-Moldova sent small Christmas packages to all 101 members of the Parliament of the Republic of Moldova, where besides postcards and albums with anti-corruption caricatures, we included all our new publications and our proposals for the modification of the anti-corruption legislation.

As a result, in the beginning of 2010, a Working Group for the modification of the above mentioned legal acts was created within the Ministry of Justice and TI-Moldova was included as a member of this group. The Draft Laws were elaborated and now, after the Parliamentary elections we hope very much the draft laws will be adopted. Well, it sounds as an easy process, but in reality it is hard. We just do not give up…

Kind regards,
Lilia Carasciuc
Executive Director
Transparency International – Moldova

——————-

Dear All,

I would like to give you a summary on our (i.e. the Batory Foundation) activities aimed at strengthening the whistleblowers protection. Julia asked us to describe civic lobbing activities – in Poland the lobbing on whistleblowers’ protection is not advanced very
much. Batory Foundation, which is one of very few Polish NGOs dealing with the topic, so far has been focused on research activities (what is the legal situation of a Polish whistleblower, what is legislation abroad) and promoting the idea (and the need) to strengthen the protection of whistleblowers in Poland.

Maybe at the beginning I should explain my engagement in the whistleblowers’ protection issues started with the interest in corruption problem. For a few years now I have been running the legal counseling project at Anti-Corruption Program (Batory Foundation). Legal counseling was initially addressed to individuals who claimed to be
victims of corruptive situations or to have witnessed or otherwise experienced such situations. Very soon though we started receiving letters from employees who revealed unlawful or unethical conduct in their workplace and soon after they were fired. Very few won at the employment court. Interestingly there were many similarities between those cases both on the level of workplace (how whistleblowers’ situation in workplace developed after the disclosure of unethical conduct, methods used by employers to get rid of whistleblowers) and on the level of employment court (whistleblowers faced similar barriers).

Batory Foundation had been monitoring those cases in employment courts as an observer. Each time we sent an amicus curiae to the court putting stress on public interest involved in the disclosure made by a whistleblower and also sharing our knowledge on whistle-blowers protection laws in other countries. We believed the court could be inspired by a different approach and try to use the existing legislation and the existing legal instruments with the benefit to the whistleblowers.

We summed up our observations in the employment courts in a publication issued in 2008. The publication also described three foreign whistleblowers protection laws, i.e. Public Interest Disclosure Act, Sarbanes-Oxley Act and Whistleblowers Protection Act. As we believed the legal situation of a Polish whistleblower could be improved not only by amendments to the existing law but also by an impact on judicial practice, the publication was sent both to stakeholders and a vast majority of employment courts.

Following the launch of the publication we received feedback from the Polish Ombudsman Office that the Ombudsman shares our concerns as to the weakness of protection of whistleblowers in Poland. As a result the Ombudsman addressed the Minister of Labor and Social Policy with a suggestion to initiate appropriate law amendments.  Unfortunately the opinion of the Minister of Labor is that Polish law sufficiently protects whistleblowers.

At the beginning of 2009 we organized a conference on whistleblowing. It was for the first time when Polish stakeholders, judges and non-governmental sector could discuss the topic with experts from GRECO, and representatives of NGO sector abroad, i.e. Government Accountability Project (US) and Public Concern At Work (Great Britain), the two leading organizations with excellent expertise on whistleblowers and
whistleblowing.

This year we run a survey made in employment courts. We collect the opinions of  judges on the efficacy of Polish labor law. We would like to receive feedback from practitioners on the question, whether Polish labor law provides efficient protection instruments to an employee who acting in good faith and in public interest disclosed unlawful or unethical conduct in workplace. Depending on the results we will be
planning our activities.

Anna Wojciechowska-Nowak
Koordynator Projektu Pomocy Prawnej
Program Przeciw Korupcji

——————

Dear All,

first of all I would like to thank you for your contributions. You have all raised very important and interesting points in connection with whistleblowing advocacy. I would like to follow-up on some of them as far as the work of Transparency International Hungary in this field is concerned.

Anna has shared with us that the aim to introduce a proper whistleblowing legislation in Poland came from practical experiences. In Hungary we have had it just the other way around. While we have realized soon enough that whistleblowing is essential in stepping up against corruption, we also had to see we have to start from the scratch. For example a new expression was needed right away as there is no proper Hungarian translation for whistleblowing. We have also drafted a legal concept.

Lilia mentioned the importance of cooperating with the branch offices of international organizations. In our case it was the US Embassy who helped us to invite an expert lawyer on the topic, and his visit as well as his lectures seemed to help to set things in motion. The government finally showed interest and started to draft a law. Actually, the governmental enthusiasm resulted in a pair of laws designed to work together, one setting the organizational framework and the other the procedure aiming to provide protection.
It would be very far-fetched to say that we are satisfied with the process and the outcome. The consultations were sometimes quite one-sided and vague. Anyway, in the end at least one of the two acts has been passed. The situation now is twofold. We have one act in force providing quite a reasonable level of protection as well as incentives for whistleblowers. However, due to lacking regulations there is no organizational background established to protect in fact.

Hence we have just started lobbying to have an organization assigned
for the task. Should this situation be considered as a lobby failure? I honestly do not think so. In the drafting period we have managed to convince the governmental officials about the importance of such a law. We have also got many journalists and other media representatives on board who have started to see whistleblowers as their potential resources for future big cases.

Nevertheless, there were failures and consequently important lessons in the process. One should never underestimate the power of efficient communication with society. As the government in this case was not really interested in introducing whistleblowing as a key step towards transparency or ask the people’s opinion, it was necessarily heavily criticized and compared to the socialist era’s doomed secret service spying traditions. It was not emphasized enough that whistleblowers are no way traitors seeking only their private gains. If we want whistleblowing to work in Hungary society needs to be educated. And yet that is another aspect of NGO advocacy – “lobbying” to convince
society.

Best regards,
Petra Burai
Transparency International Hungary

.

.