Study analyzes the consequences of the "whistleblower for good" proposal, from Moro's bill.

247 - Experts in the field of International Law and Human Rights have prepared a study that points out the consequences of one of the controversial proposals included in the so-called 'anti-crime package', presented by the Minister of Justice and Public Security, Sergio Moro, to the National Congress. The "whistleblower for good" proposal did not gain as much attention compared to so many other punitive measures, condemned by legal professionals, such as immediate imprisonment after conviction in the second instance and the exemption of police officers who cause death.

In Moro's proposal, whistleblowers who decide to help the State with information that allows for stricter punishments are rewarded, including financially, but are not punished if they knowingly present false evidence, that is, if they lie, and their identity may even be protected.

Professors of International Law and Human Rights Gisele Ricobom and Larissa Ricobom, from UNILA (Federal University for Latin American Integration) and UFPR (Federal University of Paraná), respectively, argue that Moro's proposal regarding "whistleblowers" is "flagrantly unconstitutional."

They warn of the potential for "vindictive denunciation that could cost the health and lives of many public servants" and note that the government's package "subverts the concept and figure of whistleblowing, since it channels all suspicions to the public sector, without any concern for regulating unfair practices in the private sector."

"The witch hunt will occur in all spheres. As in many moments in Latin American history, the image of the communist enemy to be combated is nothing more than a ruse to restrict individual rights. The figure of the 'good whistleblower' is yet another trap that deepens the authoritarian state, facilitating political persecution, imposing fear through the institution of spectacular criminal proceedings, without any criteria," they add.

See the full analysis below:

The figure of the "whistleblower for good" in the Anti-Crime Bill.

Gisele Ricobom
Larissa Ramina

The "whistleblower" proposal has not gained prominence, as it appears harmless in the face of measures such as the exclusion of illegality, the crime of resistance, imprisonment after a second instance ruling, and so many others that crown the punitive state model and the policy of mass incarceration that underpin the project.

The reason it is included in the set of legislative changes is because it will strengthen the police state, as it creates channels and even establishes financial rewards for whistleblowers who help the state to monitor and punish more rigorously.

According to the anti-crime bill, whistleblowers can "report information about crimes against the Public Administration, administrative offenses, or any actions or omissions that harm the public interest" to ombudsman offices and oversight units in all states of the federation.

Law 13.608 of 2018 had already established, in a very general way, the possibility of a person reporting a crime being rewarded for useful information they may have provided, guaranteeing the confidentiality of the informant's data.

The proposal now expands whistleblower protection, including a series of measures that prohibit actions or omissions that constitute retaliation for exercising the right to report, but what stands out is the impossibility of civil or criminal liability for the information provided, "unless the whistleblower has knowingly presented false information or evidence."

Furthermore, the informant has the right to the preservation of their identity, which may only be revealed in cases of relevant public interest or concrete interest for the investigation of the facts. This directly conflicts with the Constitution, which mandates transparency in its article 5, item XXXIII.

It is so blatantly unconstitutional that the bill conditions the breach of confidentiality of the whistleblower's identity only when there is a relevant public interest or concrete interest, when the Constitution determines exactly the opposite, that is, it establishes confidentiality only when there is an interest for the security of society and the State.

There is also a provision for a reward of up to 5% of the value recovered by the administration. The mercantilist nature of the ethics resulted from a mimicry of whistleblowers as applied in the United States. There, it may be justified because the very nature of Anglo-Saxon criminal justice is based on plea bargaining, that is, the possibility of agreeing on a sentence without guilt being a major factor. In different legal systems, importing legal institutions without considering the cultural reality of the country can have a catastrophic effect in a humanitarian sense.

The "whistleblowing program" emerged in the United States due to the need for greater control over abuses in the private sector, preventing the violation of market rules. The SEC Whistleblowing Program was created in 2011 as a result of the 2008 financial crisis, especially in the real estate sector. The US Securities and Exchange Commission (SEC), a kind of Securities and Exchange Commission, receives and processes the complaints, offering multimillion-dollar rewards to find and punish practices that harm other investors. The practices it aims to curb include, for example, the offering of fraudulent securities, pyramid schemes, insider trading, false or misleading statements by a company, among many other common practices in the private sector.

It is indeed true that there is a movement to combat corruption of extreme importance that has resulted in international treaties against corruption, such as the United Nations Convention and the Organization of American States.

There is also legitimate and healthy pressure for the implementation of laws that facilitate the fight against corruption and the adoption of best practices that can be learned from successful examples in other countries.

Such a move is healthy, but it cannot justify adopting a foreign institution at the expense of a proposal that has not been debated and is completely unknown to Brazilian society, as is the case with the anti-crime bill.

Furthermore, the government's proposal subverts the concept and nature of whistleblowing, as it channels all suspicion towards the public sector, without any concern for regulating unfair practices in the private sector that directly interfere with the country's economic growth and development.

It is highly contradictory for a government whose economic project is ultraliberal to consider that the corruption to be combated is only passive corruption, in the same vein as Lava Jato, which used plea bargaining to reach public officials, generously benefiting collaborators in the private sector.

It therefore enshrines vindictive denunciation that could cost the health and lives of many public servants who will face criminal proceedings under a confidential accusation, with no possibility of later claiming compensation for moral damages.

The situation is even more serious when considering the broader political context of the proposal. It's important to remember the president's campaign threats, promising to take his enemies to the beach. The narrative remains unchanged after the inauguration, as promises of retaliatory investigations have already begun in the Amnesty Commission and the Ministry of Education.

The witch hunt will take place in all spheres. As in many moments in Latin American history, the imagined communist enemy to be combated is nothing more than a ruse to restrict individual rights.

The figure of the "whistleblower for good" is yet another trap that deepens the authoritarian state, facilitating political persecution and imposing fear through the initiation of spectacular criminal proceedings without any criteria.

The "good informants" will be those well-known figures who use states of exception as a means of revenge against their enemies. Just as happened in dictatorships, they will be on our side and demand that the sword of the State act firmly, without pity or mercy. They are nothing more than "envious informants" who use the force of law to achieve their own benefits.