“In the current wave of justice, it is hard to find happiness.”

This excerpt from the royal translation of King Rama VI's work, "Venice Merchant," which was adapted from William Shakespeare's "Merchant of Venice," reflects the distress that legal disputes bring to the parties involved. In Thai society, it is often said that if one must go to court, it would be better to eat dog feces. I apologize, dear readers, but truly, going to court should be a last resort when no other solution can be found. However, it appears that in society, lawsuits are filed excessively and unnecessarily in many cases, sometimes as a form of “face-saving,” leading to a constant backlog of cases in the courts.

Especially concerning are defamation lawsuits against whistleblowers or tipsters who come forward to expose corrupt practices for the sake of the public interest.

Whistleblowers play a crucial role in safeguarding societal interests, particularly by leading information about illegal activities to relevant authorities for action against wrongdoers. They are indeed self-sacrificing and courageous in fighting against injustice for the common good.

If whistleblowers act swiftly, they can prevent damage from escalating. Conversely, if they come forward too late, the harm can be severe and irreversible.

Despite the saying that public funds do not flow away or burn, this is not true. The costs involved in legal proceedings and asset recovery or civil compensation, even if the amount recovered matches the loss plus interest, do not cover the true costs.

In the process, there are numerous hidden costs, including opportunity costs and expenses related to personnel involved, such as compensation, meeting allowances, or salaries of officials who must be paid for investigating the facts of liability, judges, etc. Additionally, there are intangible costs that cannot be quantified, such as the damage to governance systems or the decline in public trust. To accurately calculate the total damages, forensic economics would need to be applied.

However, in the past, whistleblowers have not been able to perform their duties fully because, in practice, they are always the ones being victimized, whether in cases abroad or in our own country.

A recent clear example occurred during the Covid-19 pandemic, a time when society was in chaos. Some groups seized the opportunity to profit unlawfully, while well-meaning individuals exposed illegal activities but faced legal action against them, which undermined the morale of those genuinely wishing to help society. Such actions put whistleblowers in a difficult position, where they end up with nothing but the burden of consequences.

When faced with legal action, not only must they fight the case, incurring various costs and opportunity losses, but they may also suffer from insecurity and workplace harassment, especially when whistleblowers expose corruption within their own organizations.

These factors make the struggle for justice exceedingly costly.

The harassment of whistleblowers through such legal actions is academically referred to as Strategic Lawsuit Against Public Participation (SLAPP), which translates to a legal strategy that opposes public participation.

SLAPP is a tool used by those in power, both economically and in terms of position, to retaliate against whistleblowers, often referred to as “face-saving” lawsuits. Such actions pose a serious threat to individuals willing to protect societal interests.

SLAPP represents a high cost that deters individuals from wanting to contribute positively to society. The cost is significant for whistleblowers, as humans are economic beings who make decisions based on rationality. If the risks outweigh the benefits, many would choose to refrain from action, unless they are in a situation where they have nothing to lose.

This fear has led to a decrease in the number of people willing to do the right thing, contrary to society's current need for such individuals, especially during the Covid-19 pandemic, where government projects involve substantial budgets to prevent the spread and support those affected, inevitably creating risks of corruption in procurement or fund disbursement.

When people fear coming forward to expose wrongdoing, it lowers the cost for wrongdoers. As Edmund Burke, the Irish philosopher, once said, evil prevails when good men do nothing: “The only thing necessary for the triumph of evil is for good men to do nothing.”

What can be done to reduce the costs for whistleblowers and encourage them to do the right thing? Some might say, “The one who protects dharma will be protected by Dharma,” which in layman's terms means good people are protected by good spirits. Therefore, if one does good, they will ultimately receive good in return. However, this is merely a spiritual comfort, an abstract concept that cannot be grasped or predicted when it will materialize. Thus, beyond praying for peace of mind and transferring worries to the divine, what tangible tools exist to protect whistleblowers?

To encourage citizens to report wrongdoing for the benefit of the nation, one must consider that those who engage in corruption incur costs, just as whistleblowers face their own costs. If we view reporting corruption as a commodity, it should be affordable and easily accessible. Therefore, effective laws must be designed and enforced to protect and incentivize whistleblowers to fulfill their roles. Interested readers may refer to the article on creating a market for governance goods, focusing on citizen participation in public auditing by Dr. Sutthi Suntharunurak in the Political Science Journal of Sukhothai Thammathirat Open University, Vol. 2, No. 2 (July-December 2016).

Many countries have attempted to design and enforce whistleblower protection laws to motivate individuals to do good and have seen success. For instance, in South Korea, the Board of Audit and Inspection (BAI) promotes citizen reporting by providing protection measures and rewards for whistleblowers, in accordance with the Anti-Corruption Act of 2001, Chapter 3 on Reporting Corruption and Protecting Whistleblowers. The key provisions include:

Witness protection – prohibiting audit agency employees from disclosing any personal information of whistleblowers or complainants. If whistleblowers or their relatives face threats, local police chiefs may provide security.

Job security – prohibiting the whistleblower's employer, whether public or private, from taking any actions that negatively impact the whistleblower's job or working conditions, such as disciplinary measures.

Incentive rewards – if whistleblowing leads to benefits for state assets, prevents damage, or serves the public interest, whistleblowers may be eligible for rewards under the Awards and Decorations Act. If state agencies recover funds, increase revenue, or reduce costs, whistleblowers may also receive monetary rewards.

Since the implementation of these laws, the number of complaints received by the BAI has increased annually, reflecting growing public courage and confidence in reporting useful information for public auditing.

In India, there is a social audit where villagers gather to verify whether government funds are received and signed for by each individual, representing a collective action against wrongdoing, ensuring no one fights alone. If corruption is suspected, auditors from the Office of the Comptroller and Auditor General of India, who participate in these meetings, will take legal action.

In the United States, the Government Accountability Office (GAO) has a complaint system called FraudNet, which is a crucial tool for forensic audits and investigative services. This automated system allows citizens to report misconduct or improper spending directly. Additionally, the False Claims Act empowers individuals, not just the government, to file lawsuits on behalf of the government when witnessing fraud or corruption. Whistleblowers can receive a share of the damages recovered, ranging from 15-25%. Statistics show that over 70% of actions under this law are initiated by whistleblowers, primarily related to health, military, and various government programs, resulting in the government recovering $38 billion from 1987 to 2013, with over $3 billion in fiscal year 2019 alone.

The False Claims Act, also known as the Lincoln Law, was enacted during Abraham Lincoln's presidency on March 2, 1863, amid the Civil War, when government contractors were widely defrauding the government, particularly companies supplying materials to the Union Army, such as delivering crates of sawdust instead of weapons.

President Lincoln fully supported this law, which employs the principle of “Qui Tam” (Latin for “who as well for the king as for himself sues in this matter”), allowing individuals to sue fraudsters on behalf of the government. This law aims to promote public participation in monitoring misconduct effectively, especially encouraging whistleblowers who are employees of government contractors to report any fraudulent activities, such as delivering substandard goods.

In Switzerland, the Swiss Federal Audit Office (SFAO) is the main agency for receiving complaints about corruption in government agencies, allowing for further investigation. The Federal Personnel Act 2011 clearly states that anyone who discovers corruption in government agencies can report it to the SFAO, even anonymously, and whether or not they have evidence. The responsibility for gathering evidence lies with the SFAO. The law also mandates that public officials must report any misconduct they observe, as it is their duty, and they cannot choose to remain silent. Subsequently, SFAO auditors will proceed while keeping the source of information confidential, ensuring that whistleblowers do not face negative repercussions in their jobs, providing essential protection and increasing confidence in doing the right thing.

Legal measures have gradually increased the confidence of public officials and citizens, as reflected in the rising number of complaints received by the SFAO from 2014 to 2018. Image source: Swiss Federal Audit Office (SFAO)

In Thailand, there are also safety protection measures and incentives such as rewards. The Office of the Auditor General has multiple channels for receiving complaints to facilitate citizens while ensuring the confidentiality of whistleblowers. Any official who fails to comply may face penalties under the Organic Act on State Audit B.E. 2561, Section 104. Additionally, the National Anti-Corruption Commission's regulations on promoting and supporting public participation in anti-corruption efforts B.E. 2561 aim to encourage citizens to unite in campaigning for awareness, opposing, or reporting wrongdoing while receiving protection and providing easy, convenient, and non-harmful reporting channels for whistleblowers.

There is also the National Anti-Corruption Commission's regulations on witness protection B.E. 2562, which outlines various methods such as providing protection personnel at residences and measures to conceal the identity of whistleblowers. Regarding rewards, the National Anti-Corruption Commission's regulations on reward payments (No. 3) B.E. 2558 stipulate payments in cases of assets resulting from illicit enrichment or other assets of the accused, with a maximum payment of 15% of the value of the assets returned to the Ministry of Finance, capped at 100 million baht.

From the information above, it is evident that countries are striving to establish concrete measures by creating legal tools to protect and incentivize whistleblowers. However, the success of these efforts depends on the enforcement of laws, the sincerity of leadership in relevant sectors (tone at the top), the diligence of officials, and public awareness in jointly safeguarding public interests, which will ultimately realize the intent of the law. Without these elements, laws may remain merely ink on paper.

References