Can journalists be exempted from the Official Secrets Act?

The much-talked about case filed against Prothom Alo journalist Rozina Islam under the Official Secrets Act (OSA) has stirred debate on whether this act can be used against journalists or not. 

Legal experts in Bangladesh say the act does not exempt journalists or any other professionals if they are not authorized to access confidential documents. 

However, they also say if such archaic law existed in the country, whistleblowing on government corruption would be difficult, while muzzling the voices of journalists would be easier.  

Rozina Islam, known for her investigative journalism, was detained at the secretariat for over five hours on May 17, before she was handed over to police.

She was accused of taking photos of documents related to government negotiations to buy Covid-19 vaccines, according to the case filed against her.

An FIR (first investigation report) was filed against her under the Official Secrets Act and Sections 379 and 411 of The Penal Code of Bangladesh based on a complaint filed by the Health Services Division with Shahbagh police station, before the case was officially recorded.

Also read - Prothom Alo journo Rozina Islam arrested in Official Secrets Act case

Now behind the bars, Islam is awaiting a court decision on her bail plea in the case, which is due on Sunday.

When contacted, eminent jurist Dr Shahdeen Malik told Dhaka Tribune that journalists could not be exempted from the act and the law would take its own course. 

"Unfortunately, there is no easy equation. If a person commits a criminal offence as per any law of the country, there will be investigations and the court will decide if the person is guilty or not," he explained. 

The question is, Dr Malik said, if there was any misuse of the act in Islam's case. 

File photo: Prothom Alo Senior Reporter Rozina Islam at the Dhaka Chief Metropolitan Magistrate’s Court in an Official Secrets Act case by the Health Ministry on Monday, May 18, 2021 Mahmud Hossain Opu/Dhaka Tribune

Per Section 3A (1) of the Official Secrets Act, 1923, "No person shall, except under the authority of a written permit granted by or on behalf of the Government, make any photograph, sketch, plan, model, note or representation of any kind of any prohibited place or of any other place or area, notified by the Government as a place or area with regard to which such restriction appears to [the Government] to be expedient in the interests of the security of Bangladesh or of any part of or object in any such place or area."

Dr Shahdeen Malik said the law mentioned “no person,” which means anybody violating the act is not above the law.

Maintaining balance between RTI and OSA

Md Saimum Reza Talukder, senior lecturer at the School of Law in Brac University, told Dhaka Tribune that if a person, regardless of their profession, commits this offence, they have to face punishment. 

Talukder believes there should be some sort of legal protection for the confidential documents of a country, but journalists should also have the right to unearth graft cases. 

"For this, we need to maintain a fine balance between the Right to Information and Official Secrecy under the purview of freedom of press," he suggested. 

Article 39 of the Constitution of the People's Republic of Bangladesh ensures freedom of the press, freedom of thought and conscience, and the right of every citizen to freedom of speech and expression. 

Also read - ‘Official Secrets Act does not provide for punishment of journalists’

However, the article also states that the freedom is "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." 

Saimum Reza Talukder believes this is where Rozina Islam's case gets complicated. 

Protesters call for the immediate release of journalist Rozina Islam, who is in jail in a case under the Official Secrets Act, in Satkhira on Tuesday; May 18, 2021 Focus Bangla

"If the plaintiff alleges that the defendant was trying to steal documents related to vaccine diplomacy, which could jeopardize Bangladesh's relations with foreign states, Rozina's professional identity will not exempt her in this case," he added.  

However, he said, if somebody implanted any secret documents in her bag or photos and videos in her phone, that would be a different case.

'Colonial-era law needs to be scrapped'

Speaking to Dhaka Tribune, Faruq Faisel, ARTICLE 19 regional director for Bangladesh and South Asia, said he learnt from the media that Rozina Islam fell unconscious at one point of her hours-long confinement at the Health Ministry. 

"There is a possibility that the confidential files they are talking about might be implanted," he said. 

He said the colonial-era law needed to be scrapped as it would bar journalists from exposing irregularities and corruptions. 

It is also a mystery, he said, as to why a highly confidential file, which could jeopardize Bangladesh's diplomatic relations with other countries, was kept on the table unattended.

Also read - GM Quader: Official Secrets Act an obsolete black law

In 2018, Indian diplomat Madhuri Gupta was convicted under the Official Secrets Act in the neighbouring country, BBC Bangla reports. 

She was accused of providing information to the ISI (the intelligence agency of Pakistan) while working at the Pakistan High Commission in Islamabad. She was sentenced to three-year imprisonment in the case.

In the last 20 years, a few cases have been filed against some journalists under the Official Secrets Act in India, but all were dismissed by court, it reports.

The Official Secrets Act was enacted in 1923 when the Indian subcontinent was colonized by the British rule. The act still exists in the United Kingdom, but it was amended in 1989.