Official Secrets Act: Goes against new laws, constitution

The Official Secrets Act, under which journalist Rozina Islam has been accused and sent to jail, directly contradicts the Right to Information Act, Public-interest Information Disclosure Act, and the spirit of the constitution.

In fact, after the latter two acts were enacted in 2009 and 2011, the near century-old Official Secrets Act lost its effectiveness, because newer laws always get the priority.

The Official Secrets Act 1923 was formulated in the colonial era in order to prevent what the rulers considered spying against the state, but the 1972 constitution of Bangladesh specifically guarantees freedom of expression as the fundamental right.

Section 3 and 5 of the Official Secrets Act directly violates the fundamental rights guaranteed under article 39 of the constitution.

Moreover, the government enacted the Right to Information Act and the "whistle-blowing" Public-interest Information Disclosure Act (Provide Protection) to ensure the flow of information, people's right to know and to encourage officials to disclose information for public interest, experts said.

Eminent jurist Shahdeen Malik told The Daily Star that the Official Secrets Act might have been used once or twice before against journalism.

Arresting Prothom Alo's journalist Rozina Islam in a case filed under this act is clearly a gross abuse of the law, he said, adding that the main purpose of the law was to prevent spying against the state and to ensure penalty.

Supreme Court lawyer Jyotirmoy Barua said the Official Secrets Act was formulated in the context of the political and socio-economic circumstances and judicial system of the British era.

The British rulers did not trust the people of the land.

But the people of Bangladesh, as the constitution puts it, are now the source of all powers, and therefore, there is no question of disbelieving the people, he said, adding that the British-era act is unnecessary now.

Besides, the colonial-act lost its effectiveness after the Right to Information Act and Public‐interest Information Disclosure Act were put in effect, because the overriding principle of laws prioritises newer acts.

The arrest of journalist Rozina Islam under the Official Secrets Act is a blow to the profession of journalism and has made the judicial system ridiculous.

Lawyer Mohammad Shishir Manir, head of Law Lab which conduct research on laws and the constitution, told The Daily Star section 3 and 5 of the Official Secrets Act are contradictory to article 39 of the constitution and Public‐interest Information Disclosure Act, 2011.

Article 39 of the constitution has guaranteed freedom of the press, subject to reasonable restrictions on matters relating to the security of the state and relations with other countries.

Collecting information to reveal corruption and irregularities of certain officials never affect the security of the state and friendly relations with other states, Manir added.

The Public‐interest Information Disclosure Act encourages revealing authentic information and provides protection to those who disclose the information, he said, this law has a provision for rewarding the information revealers if offences are proved on the basis of their information.

Law Minister Anisul Huq refused to comment on the uses of Official Secrets Act.

"The matter is now with the court. If I make any comment on this issue, the trial proceedings of the case may be impacted," he said.

WHAT THE CONSTITUTION SAYS

According to Section 3 of the Official Secrets Act, if any person for any purpose prejudicial to the safety or interests of the state, approaches, inspects, passes over or is in the vicinity of, or enters, any prohibited place; or makes any sketch, plan, model, or note which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy; or obtains, collects, records or publishes or communicates to any other person any secret official code or password, or any sketch, plan, model, article or note or other document or information which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy; he shall be guilty of an offence under this section.

Section 5 of the act states "wrongful communication by officials" and entering "prohibited place".

Meanwhile, Section 4 of Public‐interest Information Disclosure Act 2011 says, any whistleblower can make public interest disclosure, if considered reasonable, to a competent authority if they believe on reasonable ground that the information is true.

Section 5 of the same act says, if any whistleblower discloses any authentic information their identity cannot not be divulged without their consent.

For making disclosing public-interest information, no criminal or civil, or, where applicable, departmental suit can be filed against the whistleblower.

If the whistleblower is a service holder, demotion, harassment transfer or forced retirement or any other measures cannot be taken against him that would incur loss of his psychological, financial or social standing or no departmental actions can be taken against him or he cannot be treated discriminatorily only for disclosing the public-interest information.

Article 39 (1) of the constitution guarantees freedom of thought and conscience.

Article 39(2) says, "Subject to any reasonable restrictions imposed by law in the interests of the security of the State, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence–(a) the right of every citizen to freedom of speech and expression; and (b) freedom of the press, are guaranteed".