Column by Mahfuz Anam: Al Jazeera story, government’s response and the state of our journalism

The Al Jazeera report on Bangladesh titled "All the Prime Minister's Men", aired early Tuesday morning, revealed some vulnerabilities of our power structure that pivots around connections, cronyism and corruption. It has also, inadvertently, exposed the weaknesses of our media and the state of its freedom.

The Al Jazeera report brings out two important facts as to whether Bangladesh imported sophisticated listening devices from Israel, with whom we have no diplomatic relations, and whether power was abused to issue a passport under a false name to the brother of the head of a very important institution along with a fake NID card, bank account, birth certificate and other papers so that the said brother could stay and do business in Hungary. There are the added questions of how the fugitive brothers (there were more than one) could travel in and out of Bangladesh and join VIP functions without facing the law. All these are criminal offenses and any normal mortal would have been in jail for committing just one of them. But then, as the report reveals, these are no normal mortals whose stories are being told.

The surreptitious purchase of sophisticated surveillance equipment from Israel is something about which the air must be fully cleared as it violates one of the fundamental pillars of our foreign policy. The ISPR rejoinder denies any such purchase from Israel, and says it came from Hungary and was bought for a UN mission. So why buy from Hungary of all places? That country has never been known as a reliable producer of such items. To really prove the reportage false, the ISPR would be well-advised to mention the name of the Hungarian company from which the equipment was bought and make public the relevant documents. As the surveillance equipment was for a UN mission, making the documents public should not compromise our internal security, a reason often cited when journalists probe such matters. Denying without substantiating will not cut much ice with a discerning public.

Besides the government, the Al Jazeera report has also put us, the Bangladeshi media, on the dock, which is the main focus of my piece. Thousands of our readers want to know how come we are publishing the government and military's condemnation of Al Jazeera without ever telling our readers what Al Jazeera said or reported. A normal journalistic practice, and one that we follow at The Daily Star, is that unless we carry the original story, in this case the Al Jazeera report, we do not publish any rejoinder, in this case the condemnatory statements of our foreign office and the military. They want to know, what prevented us from carrying the said report in the first place?

If we were a free media today, we would have delved deeper into the widely-talked-about Al Jazeera report and analysed it, point by point, and exposed it for what it really is—not a top-class work of investigative journalism. It has its sparkles of strengths and plethora of weaknesses. I would have preferred fewer doses of innuendos and inferences and stronger ones of proof. Too much was claimed and too little served, at least in the first episode to which I confine my comments. The strong aspects of the report were that it proved some vital personal links and abuse of power and made some powerful and definitive points, any one of which would be sufficient for prosecution.

As expected, the report has sharply divided viewers and readers, many of whom were quite vocal. But as a media, who are we to sit in judgement of the merit of the Al Jazeera story? If we are able to produce better investigative stories and to tell the public what is being hidden from them, then we can criticise others. But do we hold the power to account? Do we question the people in authority for their actions? Do we make policy makers answerable to the people? Do we delve deep into why projects get delayed and their costs multiply three-four times their original cost? Have we found out who launders money abroad? Even when the Panama Papers pointed to the involvement of some locals, did we follow up on that? Did we find out about the owners of black money who are allowed to whiten it without any question asked, year after year? Have we found out why we keep extending deadlines for default loans and lower interest and one-time payment with each extension? What about the "Begumpara" in Toronto, or the illegal second-home owners in Malaysia?

No, we have done nothing because they all are involved with power, both financial and political, and we dare not nudge them. Sometimes we do our own investigative stories but only so long as those who pull the strings are kept out of the scene, or when the real culprit has no political or institutional clout, or when the object of our investigation has fallen out of favour.

So why are we in this state of "see no evil, hear no evil, speak no evil?"

There are several reasons, but I would like to focus on the legal constraints and how one act in particular, the Digital Security Act (DSA), has brought us to the present state.

According to the latest findings (2020) of Article 19, a UK-based media watchdog, there has been a severe deterioration in three areas namely: a) journalists' safety and security, b) rights in digital space, and c) right to dissent.

The report states that last year, two journalists were killed, 78 were seriously injured and 166 received threats ranging from death to kidnapping to harming the family and to being implicated in a false case. There was a total of 35 cases involving 58 journalists. Twelve criminal defamation cases were filed involving 20 journalists. Thirty-one journalists had their equipment broken.

The above instances, however, do not come even close to describing the debilitating atmosphere of uncertainty and insecurity faced by journalists when such actions as "spreading rumours", "hurting religious sentiment", tarnishing "the image of the country", and affecting the "social standing" and "damaging the reputation" of persons and so on are accepted as "cognisable offenses", even though there is no clear definition as to what they mean and when a person is "violating" a particular provision of the law. 

One can only imagine the arbitrary power such a situation gives not only to the police but to all those holding power. If we add to the above the fear created when district or upazila reporters are asked to meet local police high-ups, or when police officials visit the houses of journalists to find out "how you and your family are doing", or send word to be "careful, because I care about you", or when politically linked local criminals tell you that "your day of reckoning is coming"—then one gets an idea under what condition our journalists have to work, for days, months and even years. (On occasions, we had to relocate our staff to adjacent districts to save them from the wrath of the high and mighty).

When questioning the quality of personal protection equipment (PPE) can constitute "spreading rumours", when reporting that a bus owner was operating his vehicles despite a total lockdown ordered by the government is construed as "defaming" the bus owner (leading to a defamation case under DSA, and then to the arrest of the reporter), when reporting theft of rice after the local authority filed a case can lead to a defamation case under DSA against an acting editor of a large online news portal and editor-in-chief of a well-established national news agency, when differing with the police version of a death news story can lead to arrests of the news editor and staff reporter of an online news portal—just some of the stories documented by Article 19—the real picture of the media situation comes out.

Perhaps the biggest threat against journalists and press freedom is the flagrant abuse of defamation provisions under the dreaded Digital Security Act, which can be termed as the "mother of all anti-media repressive laws". Police can literally pick up anybody, anytime, anywhere under this law because of the vagueness of its provisions and the enormous arbitrary powers given to the police to file cases and arrest people. Out of the 20 punishable provisions in DSA, 14 are nonbailable. When a case is filed under the nonbailable sections—nearly all of them are—the presiding magistrate's hands are tied and the accused is almost automatically fated to be sent to jail. He can obtain bail from the High Court after a very involved procedure which can take anywhere between a few weeks and several months. (The widely reported case of photojournalist Kajol is aptly illustrative here).

So, the reality is that just being accused automatically leads to arrest and/or a jail term which has nothing to do with one's guilt or innocence. In fact, a totally unfounded and false case can land one in jail for days, weeks, months…

For defamation cases, the law clearly states two things: 1) that only the aggrieved person, meaning the person who has been defamed, can lodge a case, and 2) only one case can be filed for each instance of defamation. On both counts, the defamation law is often made a mockery of. Anyone "feeling" defamed, even if that person has nothing to do with either the event or the person concerned, can lodge a defamation case. If we write against a corrupt religious leader, any one of his followers can feel "defamed" and lodge a defamation case. If we write about the misdeeds of a politician, a local leader, or a public representative, any one of his or her followers can file a case against any journalist.

We have often wondered why the magistrates accept such cases when the law clearly states that only the person defamed can file a case. There is also the provision that multiple cases cannot be filed for the same incident. Magistrates or judges can easily dismiss all such cases on the ground that they are not filed by the person actually defamed and that another case has already been filed before another court. Every complaint has to "fulfil the requirement of the law" to be accepted as a case. But most of the defamation cases against journalists do not. Yet these are accepted and cases are heard and adjudicated. (This writer had 84 cases filed against him for the same incident and all but one were accepted).

Here, we would like to point out that the higher judiciary needs to come forward in the aid of media freedom. The judiciary and an independent media reinforce one another, and can work together to strengthen democracy and people's rights. Remember how the US judiciary defeated Trump's repeated and relentless attempts to subvert people's rights and freedoms and the free press, and on each occasion, the courts thwarted the executive overreach. Without the judiciary's more robust support, especially that of the higher courts, the media cannot render the service to the people that it is duty-bound to. 

The irony of the situation is that when Bangladesh faced the totally unknown threat of Covid-19, when the whole world reeled from the unforeseen consequences of this devastating new disease, and when the people were turning to the media for information, the use of the DSA was the highest ever—198 cases against 457 individuals in 2020, compared to 55 cases against 63 individuals in 2019, according to Article 19. In addition, the Directorate General of Nursing and Midwifery, Bangabandhu Sheikh Mujib Medical University, the Health Ministry and the Ministry of Public Administration all issued notices banning staffers to talk to the media without permission. So much for the free flow of information.

If we put it all together, the sweeping scope of the law, the vagueness of its provisions, the nonbailable provisions for 14 out of the 20 offenses under DSA, the arbitrary power given to the police, the acceptance of cases when the "requirement of the law" has not been fulfilled, persons not defamed allowed to file defamation cases, multiple cases taken for the same incident, the difficulties in procuring bail from the High Court that makes a person compelled to spend several days (minimum) in jail even if totally innocent, the disappearances, the physical assaults, the threats, the intimidations, and the general anti-free media attitude of politicians and bureaucrats (otherwise, why make such laws that can be so easily abused in their implementation?)—all these make for a very challenging situation for journalism in Bangladesh.

It is the laws, their vagueness and the arbitrariness of their interpretations and implementations that collectively make for the journalistic "black hole" in which we are forced to operate.

This elaborate exposition of the circumstances under which journalists in Bangladesh work is not an excuse for our shortcomings but a testimony to our resolve. Behind each story we publish, our correspondents risk an element of their personal safety; behind each editorial we write, there is a hidden fear as to how it will be interpreted; even behind each word we use, we have to think whose wrath we may encounter. (This newspaper suffered because of a word, one word, we used which was not liked by a certain institution).  

Let the Al Jazeera story put us, the media, in an introspective mode, force us to think about our strengths and weaknesses, compel us to confront where we have gone wrong, and launch us on a mending trajectory with the values of our noble profession being our guiding light.

Mahfuz Anam is Editor and Publisher, The Daily Star.