It is Necessary to Harmonize the Draft Laws on Whistleblower Protection

Large number of comments that TI BiH has referred to the Parliament of the FBiH are related precisely to the non-compliance of its provisions with the Draft Law on the state level- the definition of legal terms indicates that the federal and the state Draft Law have completely different concept on whistleblower protection what may lead to contradictory and wrong interpretation of the Law and its implementation. For example, the Draft Law of the Federation BiH provides protection only during administrative and judicial proceedings, while state Law also determines the competent authority.

Except non-compliance with the Draft Law on the state level, the Draft Law on Whistleblower Protection of the Federation of BiH contains provisions which may have a deterrent effect on potential whistleblowers. For example, it is stated in the particular form of the whistleblower protection that ‘’ the whistleblower is obliged to consider the damage that may occur from thier reporting, especially if the public interest arising from the report itself exceeds the same.’’ TI BiH considers that this formulation of the Law cannot stimulate potential whistleblower in any case, because insufficiently defined terms regarding damage and public interest have been introduced.

In addition, it is stated in the Draft that the whistleblower is ’’liable for disclosure of an official, business or trade secrets,’’ which in practice may lead to a situation where the employer could have incriminated activity, to which whistleblower indicates ,declare as an official or business secret. In that case the whistleblower would suffer the consequences, regardless of the fact that the employer performing such activities would violate the law, what could have discouraging effect on the potential whistleblowers.

The Law does not define clearly the authorities for whistleblower protection. This may cause additional confusion and may lead to the situation where more than one authority will be implementing the Law or will not exercise any leaving the whistleblower without adequate protection.

While supporting the initiative for the adoption of legislation which would provide protection for whistleblowers, TI BiH once again urges the legislators to harmonize the Law on the federal and the state level and to eliminate these deficiencies or the Law will lose its purpose, people will not be motivated to report corruption and whistleblowers will be left without any protection.