Law clashes with psychology

It’s like this. Suppose you see one of your co-workers taking cash from the cashier’s drawer, would you let your co-worker know that you will be complaining to the manager, or will you do it anonymously? Or suppose you found out that an important business file was destroyed by your supervisor, would you issue a complaint against him? What about if you heard a co-worker threatening to kill a man in your district, would you report such “improper conduct?” Would you be fearful for your safety or being victimised?

Would you likely complain if you are getting a reward of some kind? Or would you complain because it is your civic and moral obligation? These are some of the situations which would have arisen if the Whistleblower Protection Bill (2022) was passed in Parliament two Fridays ago. The bill sought to legalise “justifiable news carrying,” thus bringing the law to clash with local culture, or more precisely with the psychology of human behaviour. As UNC Dr Roodal Moonilal’s ground-level examples indicated, some of the behavioural assumptions made in the bill are a bit too far from reality.

This is not a law about seatbelts, masks or property tax. The psychological contexts are very different. This bill is yet another example of how the inevitable narrowness of legal thinking defeats its fundamental purpose. The Law Reform Commission itself needs membership reform.

Dr Rowley, several previous prime ministers and attorneys-general have repeatedly admitted that TT is a “very corrupt place,” implying that unethical attitudes, political corruption, cover-ups and gross inefficiencies in the administration of justice have all wittingly or unwittingly conspired to create our “culture of corruption.”

This does not mean we should throw the baby out. It means the law should show some appreciation for the likely mis-hits and cultural resistance to it. Of course, the right-thinking way is to use the law to wipe out corruption. But we already have a lot of such laws (eg money laundering, integrity in public life, etc) which are not famous for effectiveness.

The law could and does change human behaviour, but with this complex whistleblower matrix, it is better to use the technique of successive approximations, that is, bring a more modest bill that focuses on the public sector, then review it after two years to work alongside the policing units established by the Procurement and Disposal of Public Property laws.

The high hopes for the Jamaican Whistleblower Act failed in its implementation. A review of the Act and regulations was promised. The anti-corruption success of countries at the top of Transparency International list is largely due to strict accountability, efficiency of state bodies and examples of integrity at the top. Given the constitutional implications of this bill and if it is returning, the government should let the regulations accompany the bill because, as has been seen so many comparable times, the stings are really in the regulations.

Now whistleblowers seem protected in the bill by eleven tough “detrimental actions” if they complain. They should not be “demoted, fired, transferred, harassed, injured, victimised,” etc. However, that they need so many protections implicitly stirs some fear.

There are several provisions that rest on slippery psychological assumptions – malice, hearsay, reasonableness, civic attitudes, intent, likeliness, knowingly, fear, victimisation, etc. Some of these, quite common in other laws, trouble many a judge. They make prosecution even more challenging in this bill. How do people feel about the long trial delays and witness protection programme? About acting Commissioner Jacob’s concerns over the mercenary “hitmen?”

The Bill pledged “to combat corruption and other wrongdoings by encouraging and facilitating disclosures of improper conduct in the public and private sector.” There are nine categories of “improper misconduct,” starting from “criminal offence,” “failure to carry out a legal obligation,” “conduct that shows gross mismanagement” to conduct that shows unfair discrimination on the basis of gender, race, colour, religion or political opinion.”

The minister in charge of such legislation is the minister of national security who is also expected to “appoint the director and such other officers as may be required” to the 21 “designated authorities,” each of which would also have “a whistleblowing reports unit.” Each employer is required to “appoint and keep such whistleblowing reporting officers as are required.”

This is a massive bundle of bureaucracy.