Manohar Kumar

How should one qualify political whistleblowing within a democratic system, governed by the rule of law? Whistleblowing is often considered a form of principled, sometimes even democratic dissent. In this last chapter, we discuss what kind of dissent whistleblowing is. We discuss various forms of dissent and argue that whistleblowing is neither a case of conscientious objection nor a case of civil disobedience. However—we conclude—it is a distinctive form of civil dissent against the threat of unruled government secrecy.

National security and strategic interests of the modern state require a certain amount of secrecy. However, state secrecy poses a dilemma for constitutional democracies, whose legitimacy depends on the transparency of democratic decision-making. In this chapter, we defend the argument that citizens’ right to know limits the prerogatives of state secrecy. We start from the debate on the balance between liberty and security and provide some criticisms of the idea that striking a balance is always justified in a democracy. We pay particular attention to the role secrecy plays in matters of national security and the effects of unrestrained secrecy on the enjoyment of rights. We then introduce the notion of epistemic entitlement of rights and argue that secrecy is legitimate within a constitutional democracy only when citizens enjoy a specific right to know in which circumstances their rights can be legitimately limited or restricted. We call this the right of assessment.

In this book we have argued that whistleblowing is an act of civil dissent, insisting on the function of dissent in exposing the abuse of corporate and political power, and the limitations of the democratic procedures that undermine considerations of public interest, equality of rights, and accountability. In this conclusion we briefly reassess the main arguments presented in the book and conclude that, while there is no such a thing as a right to whistleblowing, whistleblowers are entitled to a robust protection against retaliatory actions. We argue that such a right corresponds a duty of the state. While a growing national legislation provide some legal protections for civic whistleblowers, little or no safeguard is still recognized to political whistleblowers.

In this article we argue that governmental practices of secrecy threaten the epistemic dimension of rights. We defend the view that possessing a right entitles its holder to the largest extent of available knowledge of the circumstances that may impede the enjoyment of that right. We call this the ‘epistemic entitlement’ of rights. Such an entitlement holds in ideal conditions once full transparency is assumed. However, under non-ideal conditions secrecy is a fact that should be accounted for. We argue that, under such conditions, interference due to secrecy is legitimate when the circumstances under which it occurs are open to assessment by the right-holder. We call this the ‘right of assessment’. It ensures the ex-post fulfillment of the epistemic entitlement under non-ideal conditions of partial compliance where full transparency is unattainable due to the fact of secrecy. The right of assessment shields against arbitrary interference by imposing an obligation on the government to provide justification for any interference in the sphere of fundamental rights.

Whistleblowing is the public disclosure of information with the purpose of revealing wrongdoings and abuses of power that harm the public interest. This book presents a comprehensive theory of whistleblowing: it defines the concept, reconstructs its origins, discusses it within the current ethical debate, and elaborates a justification of unauthorized disclosures. Its normative proposal is based on three criteria of permissibility: the communicative constraints, the intent, and the public interest conditions. The book distinguishes between two forms of whistleblowing, civic and political, showing how they apply in the contexts of corruption and government secrecy. The book articulates a conception of public interest as a claim concerning the presumptive interest of the public. It argues that public interest is defined in opposition to corporate powers and its core content identified by the rights that are all-purposive for the distribution of social benefits. A crucial part of the proposal is dedicated to the impact of security policies and government secrecy on civil liberties. It argues that unrestrained secrecy limits the epistemic entitlement of citizens to know under which conditions their rights are limited by security policies and corporate interests. When citizens are denied the right to assess when these policies are prejudicial to their freedoms, whistleblowing represents a legitimate form of political agency that safeguards the fundamental rights of citizens against the threat of unrestrained secrecy by government power. Finally, the book contributes to shifting the attention of democratic theory from the procedures of consent formation to the mechanisms that guarantee the expression of dissent. It argues that whistleblowing is a distinctive form of civil dissent that contributes to the demands of institutional transparency in constitutional democracies and explores the idea that the way institutions are responsive to dissent determines the robustness of democracy, and ultimately, its legitimacy. What place dissenters have within a society, whether they enjoy personal safety, legal protection, and safe channels for their disclosure, are hallmarks of a good democracy, and of its sense of justice.