Whistleblowing and Secrecy Law: Where is the Balance?
The legal protection for secrecy of "nationally important" information and its conflict with the free press constitute a dichotomy that has long been debated around the globe. Although governments are usually granted legal protection to keep certain documents and information undisclosed, guarantees of right to information and press freedom are considered essential to ensure government accountability. When laws protecting official secrets are ill-defined and the scope of applying the laws is kept broadly ambiguous, leaving avenues for potential misuse, investigative journalism or public-service whistleblowing would naturally face undue restraints.
The Official Secrets Act (OSA) of 1923 in Bangladesh has attracted much public attention in recent times in the context of journalist Rozina Islam's arrest under the Act. It was the first time that a journalist, or any person for that matter, was known to be arrested under the law in the country. Nevertheless, a quick review of the reported cases of Supreme Court reveals that in a 1993 judgment, reference was made to a case being filed against the concerned petitioner for "secretly transferring important information relating to Bangladesh Gas Field to a foreign mission" (Writ Petition No. 196 of 1993). Although filing of cases under the Act is rare, the legislative trend does indicate that the law was very much alive in the minds of our legal drafters. In the 2017 Rules formulated under the Public Interest Information Disclosure (Protection Provision) Act, 2011, and in the Digital Security Act of 2018, specific reference had been made to the OSA.
In Britain, the first OSA was enacted in 1889, which was then legislated in the British Indian colony in the same year, amidst growing numbers of public officials acting as correspondents for newspapers. The law in colonial India was later amended in 1904 and finally in 1923, especially to deal with offences related to espionage. The law was thus never meant for prosecuting journalists; rather the purpose was to prosecute government officials for leaking information, along with prosecuting individuals for espionage. However, the provisions were clothed in languages that could cover almost all information within its scope, and there were clauses that could also implicate any person who has obtained any leaked information. On these very grounds, the OSA in Britain was criticised from the very beginning for having a wide scope for misuse, especially against journalists for whistleblowing.
In the face of such criticisms, the law in Britain had gone through several amendments, with the latest being in 1989. That amendment replaced the previous Section 2 of the OSA (which was similar to Section 5 of the 1923 OSA), providing sanctions on leaking official information. Replacing the previous "catch-all" provision, the 1989 amendment provided the protection of secrecy only to six specific categories of information. Importantly, the amended section only considers "disclosure" of information as an offence, as opposed to merely knowing or receiving them, and such a disclosure also has to be "damaging" to the national interest.
In the post-colonial period, the 1923 OSA was amended multiple times both in India and Pakistan, although unlike the amendments in the British law, not much positive change was brought to the Act. Rather, several Indian commentators had criticised the Indian amendments to the Act as even more draconian than the British regime. After Bangladesh's independence, we adopted the 1923 OSA along with the changes brought during the Pakistan period post-1947. As such, the OSA that is now in force in Bangladesh does not only reflect British colonial policies, it also includes changes made by the Pakistani government. A 1968 amendment in Pakistan had increased the maximum punishment for espionage (s.3) and leaking (s.5) to death penalty (which was earlier 14 years of imprisonment). The death penalty as such is part of the OSA applicable in Bangladesh, which is extremely harsh compared to similar laws in other countries.
Apart from the broad scope of Sections 3 and 5 and the harshness of the punishment, the 1923 OSA is also unclear in several aspects. In particular, the law does not set any criteria for determining what documents are to be considered as "official secrets", leaving it to the whims of the authorities to brand any document a "secret" as per their convenience. Such loosely defined provisions would eventually help corrupt officials to hide behind the cover of secrecy. Section 3, which deals with espionage, also has a very wide scope which can include a broad range of information that cannot always be justified as necessary or relevant in terms of protecting national interests or security. Moreover, the 1923 Act uses terms like "enemy state", which do not reconcile with the existing foreign policies of Bangladesh. Another crucial aspect of OSA that had been heavily criticised both in the UK and India is that, under Section 3(2), unlike the ordinary rules of criminal prosecution, the burden of proof is placed on the accused. The provision says that even if no act of espionage could be proved against the accused, he/she may be convicted only on the basis of some subjective considerations like the person's "conduct" or "known character" or any special circumstance from which it may appear that the accused had a purpose prejudicial to the safety or interests of the state. This leaves scope for most arbitrary use of the provision and is clearly contradictory to the principles of justice.
The rationality of such colonial-time regressive laws needs to be assessed against our constitutional guarantees of free speech and free press. We have enacted the Right to Information Act in 2009, which echoes those guarantees. We also have the Public Interest Information Disclosure (Protection Provision) Act of 2011, which endorses the value of disclosure of information in public interest, although it doesn't apply to information disclosed in media. Echoing that same notion, our legal framework should also provide avenues where such disclosures in public interest by investigative journalists and whistleblowers can get legal protection. Disclosure in public interest and "national secrecy" cannot stand contrary to each other, and hence it is only in the interest of good governance that a conscious balance is crafted between the two.
Taslima Yasmin is an Associate Professor at the Department of Law, Dhaka University.