Is the approaching Czech whistleblower protection an illusion?

Discussions on whistleblower protection in the Czech Republic are like bad indie movies – you know that at the end nothing will actually happen, but you still hope this time it will be completely different.

Over the last decade, whistleblowing has been low on the policy agenda in the Czech Republic. There were several attempts to pass a comprehensive protection law through different cross-party initiatives and civil society pushed every government to do so, but real political will to take the final step was lacking. There were always more important things to do. And if not, we found ourselves in nonsensical situations when two government parties introduced their own competing bills to make things even more complicated. Plus, many people in the Czech Republic still view whistleblowers negatively, and you don’t gain any quick political points by standing up for them.

In 2014, the government established a working group for whistleblowing to act as an advisory body. Many different stakeholders were invited to participate – ministries, civil society organisations, police forces, trade unions, independent state agencies, universities. After some time, it became clear that civil society groups like Transparency International Czech Republic, Oživení and Rekonstrukce státu were the only active members. We put forward ideas and shared studies, good practice, bad practice as well as our field experience. But it was like knocking on a locked door; you are welcome to do your part but, at the end of the day, nobody listens.

Nothing was possible or feasible – until recently.

After years of confused wandering through legislative and consultation procedures, we stand as the country which apparently leads the pack in the European Union when it comes to transposing the Whistleblower Protection Directive of 2019.

If you look only at the current status of the bill implementing the EU directive in the Czech Republic – approved by the government, waiting for its first reading about in the House of Commons – you can get the wrong impression.

The bill was thoroughly discussed in the working group during 2020. Civil society drafted very comprehensive comments pointing out many weaknesses of the bill – which was not even complying with the directive in some parts – but its author, the Ministry of Justice, had a different opinion and accepted only very few comments. However, questions about equal treatment were raised when very similar comments were expressed by the Legislative Council of the Government, consisting of law professors, and the Ministry accepted them all.

The bill also contains worrying gaps. Whistleblowers will have to make external reports to the Ministry of Justice, which, in public perception, is so closely tied to politicians that it will be hard for whistleblowers to trust the system and share their concerns with the state authorities without fear of reprisals. It’s very hard to imagine any Czech ministry administering the reports and referring them to appropriate authorities with the enthusiasm needed for investigating breaches of law. Ministers are also unlikely to support the idea.

The search for a trustworthy central agency to collect and investigate all whistleblowers’ reports is as long and as exhausting as the talks about new legislation itself. There has never been real, strong political will to secure a supportive environment for this kind of a central institution, and the opportunity to play this crucial role has seemingly been forced upon the state authority which lacks arguments to reject new tasks.

Going with the Ministry of Justice is just a result of this approach. Civil society has several ideas of who would be more suitable for the job – preferably, it would be either the ombudsperson’s office or the authority overseeing political party finance, which might be tasked to manage a broader anti-corruption portfolio in the future. If the function stays with the Ministry of Justice, at the very least, it should be a new agency that is sufficiently independent from its politically appointed representatives.

Unfortunately, the Ministry of Finance has been keeping a hardcore stance of not giving a single extra cent for funding such a central institution, which actually contradicts the Article 11(1) of the Directive. This lack of funding makes it so that any central agencies that find out they may have to take on the role of being the central authority on whistleblower protection, but without any funding for such a responsibility, find reasons to avoid undertaking this responsibility. Only political will and necessary funding would make it possible to overcome such obstacles.

The lack of a trustworthy central channel may cause the entire effort to go to waste. If the Parliament doesn’t take responsibility and act immediately, the progress towards robust whistleblower protection will all have been an illusion.