Is Official Secrets Act relevant in Bangladesh?
Bangladesh made headlines across the world due to the arrest of Rozina Islam, a prominent investigative journalist. She was arrested after the Health Ministry filed a complaint against her under the colonial-era Official Secrets Act, allegedly for taking pictures of so-called classified official documents, according to news reports.
The Official Secrets Act (OSA) was adopted in 1923 under the British colonial rule. The OSA prohibits the unauthorised collection or disclosure of secret information and imposes fines for perpetrators, even in cases when a person voluntarily receives secret official information which he/she knows or ought to have known it is classified. Attempts to or assistance in breaching the OSA are also punishable.
OSA is 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 law is applicable to government servants and citizens, provides the framework for dealing with espionage, sedition, and other potential threats to the integrity of the nation. 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 (RTI Act) 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 RTI Act also recognises that right to information ensures transparency and accountability, reduces corruption, and establishes good governance. Section 3 of the Act states that all other laws shall be superseded or overridden by the RTI Act. Therefore, some existing laws which uphold state secrets shall be overridden or narrowly applied in order to protect the right to information.
Upon the enactment of the RTI Act therefore, the OSA has lost its relevance as an outdated, colonial law. But, the Digital Security Act 2018 (DSA), by virtue of section 32, adds validity to the existing culture of secrecy while upholding the OSA Act.
At the same time, there is no specific Bangladeshi law which protects journalistic freedom. However, Sections 4 and 5 of the Public Interest Information Disclosure (Provide Protection) Act, 2011 (The Whistleblowers Protection Act) provide protection and safeguards to whistleblowers if the information is true and related to public interest. This landmark Act defines public interest information as information relating to misuse of public money or resources, abuse of power, criminal acts and acts against public health, safety or the environment, and corruption. Any whistle-blower can make a "public interest disclosure" to the competent authority and avail protection from civil and criminal prosecution, employment disadvantages, protection of identity etc. Disclosure of false information or information not in the public interest is punishable. Article 39(2)(b) of the Constitution guarantees freedom of press. Bangladesh is also party to the International Covenant on Civil and Political Rights (ICCPR). Article 19 of ICCPR clearly mentions freedom to seek, receive, and impart information, all of which support journalistic freedom including freedom to conduct investigative journalism. The right of access to information is a powerful tool in the fight against corruption and in achieving good governance and sustainable development.
The field level situation is quite dismal. A study by the RTI Forum on the implementation of the RTI Act, identified lack of interest of the media (16.3 percent) as one of the leading challenges (RTI Forum 2012). Generally, journalists use their personal contacts in collecting information as they had done before the RTA was enacted. The Bangladesh RTI Survey 2019 also showed that journalists working in various media outlets said that the Act was not providing much benefit to them as the process of receiving official information was slow and time-consuming (WB 2020). One of the participants of the study observed "journalists were buoyant about the legislation from the very beginning as they thought this would give them easy access to exclusive government information. However, after enactment of RTI Act, they lost their interest as the process is bureaucratic and time-consuming. They keep on using their personal contacts."
In addition, over-classification of government information on ever-expanding national security grounds has raised concerns about its impact on freedom of information, and the government's public accountability more generally. Time has come to set certain standards and principles to prevent actual or potential abuse of power in the name of state secrets protection on national security grounds. The legal protection of national security information has assumed renewed significance with the increased awareness of national security concerns associated with unauthorised disclosure of State secrets.
The writer is Legal Economist.