In an era when civil and political rights have been shrinking gradually, we have witnessed a welcome intervention by the Supreme Court. A three member bench of the High Court Division of the Supreme Court has said the practice of collection of call lists/audio discussions from public/private phone companies without any formal requisition and formal seizure, and also without the knowledge of the subscriber, must be stopped. Three justices of the bench, unanimously and without any ambiguity, have said that the citizens' right to privacy in correspondence and other means of communication is guaranteed under Article 43 of the Constitution, which cannot be easily violated at any instance, at the whims of interested quarters.
The judgement was the outcome of a death reference and two appeals—one criminal and the other a jail appeal in the case of the killing of a seven-year old child. In the original criminal case, the prosecution significantly relied on the alleged suspects' call lists and records, which were obtained without proper authorisation. To set aside the lower court's verdict, the higher court justices reasoned that the manner of proving the contents of the electronic record/document and its generation into printed material and certification left such evidence without any legal value. It is unfortunately a sad outcome in the pursuit of justice on the part of the victim's family. However, the failure is of the state and the indiscriminate and unlawful use of power by police investigators to obtain electronic communication logs and records of suspects. The silver lining, however, is in the reasoning of the judgement that reminds us all about the constitutional protection of our privacy. Both national and international rights groups have been, for quite some time, decrying flagrant violations of individual privacy, allegedly by security and law enforcing agencies.
These three judges have mentioned a fact that we seldom can say in public—that "It is our common experience that nowadays private communications between the citizens, including their audios/videos, are often leaked and published in social media for different purposes". It is, however, a very different story for the victims of such privacy breaches. The overwhelming majority of the victims are critics of the government, belonging to the opposition parties or civil society organisations. The most notable high-profile leaks of call records includes one between the Prime Minister Sheikh Hasina and the then leader of the opposition Khaleda Zia, following the death of her younger son Arafat Rahman Koko, and a call between Justice Nizamul Haque, the then chairman of the tribunal on crimes against humanity. We are in the dark on whether private communications of holders of such high offices are still vulnerable, as the government has, so far, remained silent on investigating those breaches.
This judgement has clearly defined the responsibilities of all the parties involved in breaching citizens' privacy, namely the regulator of the telecom sector, the law enforcing agencies and the telecom operators. It also prevents fishing expeditions through wiretapping. These justices have warned that the supplying person/authority of call lists or information would also be liable for aiding the violation of one's fundamental rights as guaranteed under the Constitution.
The judgement says that the Bangladesh Telecommunication Regulatory Commission (BTRC) and the phone companies operating in Bangladesh have a great responsibility towards proper compliance of the constitutional mandate of maintaining privacy in communications. They cannot provide any information relating to communications of their subscribers and the citizens of the country, unless it is permissible by law matched with the Constitution. It further stipulates that when the investigating officers' investigation/inquiry, in particular, require any call lists or information relating to one's communications, they must make a formal request to the concerned authority of the respective company/office stating the reason why it is necessary for that investigation/inquiry, not in a roving and fishing manner. Only in that case will the phone companies have an obligation to supply the call list or information within the knowledge of the subscriber.
The assertion in the judgement that obtaining call lists or details of private communications through other electronic means (over the internet) will have to be under laws that match the constitution possibly opens up avenues to challenge the constitutional validity of a few new legislations that have been dubbed as draconian by rights activists. The judgement points out that except the Anti-terrorism Act 2009, all other laws lack specific provisions as to how materials would be collected and adduced in evidence. The judgement, therefore, stresses on the need of amending the Evidence Act. However, the judgement did not answer the question on whether the Anti-Terrorism Act had matched the constitutional mandate on citizens' privacy. The Anti-Terrorism Act says that any discussion and conversation through Facebook, Skype, Twitter or any other online site by a terrorist person or entity, or a still picture or video involving his offence, if produced by the police or law enforcers to any court for the purpose of investigation, the information so produced shall be admissible in evidence.
It is true that no one can deny the importance of surveillance of suspects in tackling increased threats of terrorism across the globe, and security agencies have been using all sorts of technological tools to keep an eye on suspects. However, in democracies, there are strong oversight mechanisms in place. Police and other agencies need judicial authorisation for snooping into anyone's private life. They need to satisfy the court with reasons for such suspicion. On the other hand, in autocracies, sophisticated technological tools are increasingly being used to harass, intimidate and humiliate opponents of the regime. In corruption-prone countries, officials use this technique to settle personal grudges, employ blackmail and engage in other activities which are criminal in nature.
Although the judgement was pronounced on August 28, 2019, it was published on September 29, 2020. Anyone who has fallen victim to such privacy breaches during the 13 month period of pronouncement and publication of the judgement can now seek legal redress to their sufferings, both psychological and reputational. Many of those leaks remained confined within social media platforms and did not become a story in mainstream media. But among the few picked up by traditional mainstream media, one was a conversation between the former vice president (VP) of the Dhaka University Central Students Union (Ducsu) Nurul Haque and one of his mentors about a potential business deal. Though there was no criminal act or motive established, the alleged call stirred a heated debate on social media. In the not too distant past, another former Ducsu VP, Mahmudur Rahman Manna, had to spend more than a year in prison based on his telephone conversation with another opposition politician, now deceased former Dhaka Mayor, Sadeque Hossain Khoka.
In this context, the High Court Division judgement is hugely significant. Hopefully, this illegal practice will stop immediately as records obtained without official authorisation and subscriber's consent have lost their evidentiary value. However, due to the lack of accountability of the government and law enforcing agencies, provisions should be made for judicial authorisation instead of official ones in all such surveillance activities.
Kamal Ahmed is a freelance journalist based in London.