Internet blackout had no legal basis
No legislation explicitly permits the internet blackout enforced by the Sheikh Hasina government to quash protests centring the quota reform movement.
The disclosure came in the government's official response to a joint communication from three UN special rapporteurs Irene Khan, Morris Tidball-Binz and Gina Romero asking for the legal and factual basis for internet disruption in Bangladesh.
For all latest news, follow The Daily Star's Google News channel. "To fulfil the political interest of the former government, BTRC was forced several times to shut down telecommunication networks by the former state minister."
In its response on August 13, the Bangladesh Telecommunication Regulatory Commission said the internet shutdown was done by the Awami League government to fulfil political interests.
"To fulfil the political interest of the former government, BTRC was forced several times to shut down telecommunication networks by the former state minister. At the end, political government tried to achieve its own political interest," reads BTRC's response.
The BTRC cited Section 97 of the telecom law as the rationale for the internet shutdown.
The section states that the government will have preferential access to the internet during war or when a foreign power causes a warlike situation, internal rebellion or disorder.
Preferential rights of usage would also be given to the government "for any other reason the defence or other security of Bangladesh or any other urgent state-affair are required".
The sub-section (2) states that telecom services may be withheld if the president declares a state of emergency or if the government deems it fit to sustain law and order.
"The question is whose opinion would constitute the opinion of the government? Can the telecom minister form the opinion of the government? Generally speaking, the government means the cabinet," said an eminent telecom lawyer who asked not to be named.
Most importantly, since there is a positive requirement of "opinion", the exercise of power under this section must be preceded by a written record of forming the opinion.
"Such opinions must also be objective," he said.
No administrative approval of the posts and telecommunication ministry was taken while issuing the directive to shut down the internet, according to a probe report of the ministry.
The government and its agents acquire their powers and authority from statute, and there is currently no statute in force that can be used to legitimise the unprecedented mobile and internet blackout, said Fatema Anwar, a Supreme Court advocate.
"A fundamental principle is that one cannot rely on an extenuating circumstance that is self-induced to justify one's illegal action," she said, adding that the entire episode was "clearly and unequivocally escalated and exacerbated" by the last government.
State agencies who facilitated the said aggravation cannot now turn back and claim that they have a legal justification for a law-and-order situation that they created, Anwar said.
The widely referred provisions of the telecom act are inappropriate given the circumstances of those days.
"Interpreting statutes to justify their misconduct is legally fallacious. There was no war or warlike situation against Bangladesh. There was no external threat to our national security or sovereignty."
As for the internal law and order situation, the government is entitled to preferential use of telecommunication apparatus, equipment and systems.
"I do not see how this provision can be interpreted to mean blocking the service altogether. Moreover, there was no state of emergency declared," Anwar added.
In its response, the BTRC also said: "It is to be noted here that the former state minister gave his own confessions regarding internet shutdown and took the responsibility on his own which has been widely published in various media platforms."
The total losses from the internet shutdowns amounted to Tk 100,000 crore, said Mohiuddin Ahmed, president of the Bangladesh Mobile Phone Consumer Association.
"This action violated human and economic rights and those responsible must be held accountable and face trial -- it is a severe criminal offence," Ahmed added.
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