The colonial hangover of official secrecy

South Asian countries share common traditions, heritage, culture and history. Thus it is not surprising that Bangladesh, India and Pakistan also share the colonial legacy of repressive and authoritarian laws, often called the "colonial hangover". When enacted, the tone, objective and approach of those laws were rules that served to suppress and oppress on behalf of the colonial masters rather than protect the rights, uphold dignity and ensure freedom of the people. Among many laws, the Official Secrets Act, 1923 (OSA) is one of the widely used laws still applicable in Bangladesh, India and Pakistan. The law is popularly known as an anti-espionage law and has under its purview all matters of secrecy and confidentiality with regard to the government or state affairs. The most commonly used sections of OSA are Section 3 and 5. Section 3 criminalises spying and Section 5 criminalises unauthorised disclosure of secret government information including any secret official code, password, sketch, plan, model, article, note and document etc. However, the OSA has been criticised because of the way it has targeted media and press. Investigative journalism, in particular has been its worst victim.

On the other hand, Bangladesh has enacted the Right to Information Act (RTIA) in 2009, which recognises in its preamble that the right to information is an integral part of the freedom of thought and conscience, and of speech, recognised as fundamental rights under Article 39 of the Constitution of Bangladesh. The preamble of RTIA also recognises that right to information ensures transparency and accountability, reduces corruption and establishes good governance.

Although there is no specific Bangladeshi law which protects journalistic freedom, Section 4 and 5 of the Public Interest Information Disclosure (Provide Protection) Act, 2011 (The Whistleblowers Act) provide protection and safeguards to whistleblowers if the information is true and related to public interest. Article 39 (2) (b) of the Constitution guarantees Freedom of Press. Bangladesh is also a signatory to the International Covenant on Civil and Political Rights (ICCPR). Article 19 of ICCPR clearly mentions freedom to seek, receive and impart information, which supports journalistic freedom including freedom to conduct investigative journalism.

So any attempt to impose restrictions on seeking, receiving and imparting information in Bangladesh contradicts Article 39 of the Constitution, Article 19 of the ICCPR, and the spirit of the RTIA and Whistleblowers Act. Should conflicting laws remain applicable at the same time? Has not the OSA become obsolete and should not it be declared unconstitutional under the purview of Article 26 of the Constitution of Bangladesh?

The vicious attack on Rozina Islam, a senior reporter of Prothom Alo, while she was trying to gather information and her detention and arrest under OSA, illustrates these contradictions quite clearly and raises several questions.

Firstly, can investigative journalism be conducted legally in Bangladesh as long as the OSA exists? According to Transparency International's Corruption Perceptions Index 2020, Bangladesh is second-worst in curbing corruption among the eight South Asian countries. Under this situation, if a government office does not give necessary information to a journalist within due time, what alternative approach can the journalist take which is "OSA-proof"? Or, often an investigative report starts with information leaked by an insider, but possessing such information is criminalised by the OSA. Then, can an investigative journalist get safeguards under Section 4 and 5 of the Whistleblowers Act? If the Whistleblowers Act prevails over the OSA, then why has Rozina Islam been arrested? Do we have any case decision yet to clarify this confusion?

Secondly, Rozina Islam was handed over to Shahbagh police station after she was confined for around five hours at the health secretary's office in the secretariat on Monday. Why this delay of five hours before handing her over to the police? What happened during those five hours when Rozina Islam was kept inside the secretariat? How far was the police station from the secretariat? Is this delay reasonable and acceptable? If this delay is not proved reasonable in court, then will a case of wrongful confinement under the Penal Code be filed against the concerned government officials?

Thirdly, was there any force used against Rozina Islam while she was detained or arrested? What kind of force was used against her and was that use of force lawful? Prothom Alo alleged that Rozina Islam was harassed while she was detained. She told fellow journalists that she was assaulted physically by the employees at the secretary's office. So, if a female journalist was physically assaulted and detained against her will, then can we think of bringing charges under the Penal Code 1860, Women and Children Anti-Repression Act 2000, and Torture and Custodial Death (Prevention) Act 2013 against the government officials? Also, the perspectives of the Convention on the Elimination of All Forms of Discrimination Against Women, UN Convention against Torture, and UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials should be invoked here as per the essence of Article 25 of the Constitution. Prothom Alo also reported that Rozina Islam got sick during the detention and instead of sending her to the hospital, she was sent to the police station. As the right to health is an integral part of the Right to Life, this was also a  breach of Article 31 and 32 of our Constitution if Rozina Islam was denied her right to health during detention and arrest.

Fourth, what kind of information was Rozina Islam trying to obtain? Was that information true and related to public interest? Is such information barred from disclosure by the Non-Disclosure Agreement (NDA) with foreign countries? If that information is true and concerned the people's right to health, should the concerned ministry bar the disclosure just because of NDA or for any other secrecy-related reason?

The time has come to scrap the Official Secrets Act immediately and review the RTIA so that a mere NDA does not prevent exposure of the truth that is of public interest, such as that which relates to the right to health. Also, the restrictions on providing information goes against the spirit of Goal 16 of the Sustainable Development Goals (SDGs), which considers the right to information as an essential part of sustainable development, as it empowers people with knowledge to demand services from public authorities and promote accountability on development issues. As Bangladesh is committed to achieving the SDGs, the OSA also goes against the "Connecting Government to Citizens: Implementing Right to Information Act 2009 in Bangladesh: Strategic Plan 2015-2021", which still can be found on the government's Cabinet Division's website.

Finally, any criminal charge must be proven beyond reasonable doubt. The government will have to answer the following questions regarding Rozina Islam in court without any reasonable doubt: How were the government officials sure that Rozina Islam took pictures of confidential official documents through her mobile phone set, and is there any CCTV footage? Who had the possession of Rozina Islam's mobile phone during her alleged five hours of detention at the secretariat? Can we be sure that after confiscating Rozina Islam's mobile phone, no one took pictures of confidential official documents with that mobile phone in order to frame her? How will the digital forensics of the mobile phone be done? How can we be sure that no one, except Rozina Islam, kept confidential official documents inside her bag?

There is always a dichotomy between the "Black Letters of the Law" and the "Spirit of the Law". The Declaration of the Independence of Bangladesh is based on equality, human dignity and social justice. So, any law enacted in this land must uphold these three founding principles. Therefore, should not the OSA be declared unconstitutional under Article 26 of the Constitution as it restricts our right to information? Shouldn't the Spirit of the Law be upheld by saying that freedom to seek, receive and impart information on public interest should not be barred in the name of state security? Should not the colonial hangover of official secrecy be washed away by the free flow of information? Should not journalistic freedom be ensured, which empowers people to maintain a culture of transparency, accountability and democratic norms?

Md Saimum Reza Talukder is a senior lecturer of Cyber Law at the School of Law, BRAC University.