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

The nearly 100-year-old Official Secrets Act cannot be used against present-day media workers, according to lawyers and analysts.

The law was promulgated as a move to keep the British colonial government in power, they said, adding that its main purpose was to safeguard the British from the Bangalis and to shift the blame onto them if necessary.

Legal experts are of the opinion that the approach to media and journalism was not as it is today when the Official Secrets Act was enacted, and, consequently, the law cannot coexist with contemporary journalism.

1923 to 2021

The subcontinent has been divided several times since the enactment of the Official Secrets Act by the British rulers in 1923.

Besides the enactment of the constitution, several laws of the British, Pakistani and Indian periods were amended and adapted into domestic laws following Bangladesh’s emergence as a sovereign state.

However, the Official Secrets Act has remained unchanged for unknown reasons.

Its recent application against a journalist is being considered an anti-journalistic move by law experts of the country.

Analysis

One aspect of the law deals with espionage and the other deals with leaking secret government documents.

However, nowhere in the law is it mentioned that “confidential” government documents can or cannot be published in newspapers.

Supreme Court lawyer Manzil Morshed said the right to freedom of expression was enshrined in the constitution enacted in 1972 after Bangladesh became independent in late 1971. 

“A separate press council has been formed [as well]. So there is no scope for using the Official Secrets Act against journalists. It is antithetical to journalism,” he added.

According to the Official Secrets Act, a complaint under it would have to be related to espionage. 

Lawyer Tanzim al Islam said it was not enough for a document to be confidential, it needed to be relevant to the security and interests of the state.

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He continued: “The law states that if a person engages in espionage for any purpose conflicting with the security and interests of the state, he/she shall be punished. That is, if one goes to, visits or enters an area forbidden by the government, he/she will be punished.

“Sections 3, 3A and 5 of the Official Secrets Act make it a crime to spy or leak any documents, in the interest of the state and security. It remains to be seen whether journalist Rozina Islam did anything that goes against the security or interests of the state.”

It was apparent that Ms Islam had only tried to obtain some information for her investigative report, the lawyer said. 

“As far as it is known, it was only about the vaccine deal. No information about the vaccine is related to the security of the state. ‘Security’ is a different matter,” Tanzim added.

Legal protection for publishers of information related to public interest 

The Public Interest Information Disclosure (Protection Provision) Act, 2011 has an aspect that focuses on "public interest". The law essentially originates from the need to provide legal protection to publishers of information related to the public interest and other relevant matters.

Public interest is defined in Section 2(3) of the act as an action taken in the interest or welfare of the people or a portion of the people under the direction of the government.

Meanwhile, Section 2(4) states that "information relevant to public interest" or "information" refers to any information of an organization that discloses that an official was or is or may be involved in (a) irregular and unauthorized expenditure of government funds; (b) mismanagement of government resources; (c) embezzlement of government resources or money; (d) abuse of power or administrative failure; (e) criminal offences or illegal or unlawful acts; (f) any activity that is harmful or risky to public health, safety or the environment; or (g) corruption.

Thus, there is a subtle conflict between the Official Secrets Act and the 2011 act when it comes to “national interest” and “public interest”.

Emphasizing the importance of intent, Shyamal Dutta, editor of Bhorer Kagoj, who has reported on issues related to the Secretariat for a long time, said Prothom Alo journalist Rozina Islam did what she did for the sake of writing a report.

“You have to do these kinds of things if you want to do journalism. We have done it as well. [But] they cannot be referred to as theft or not righteous deeds. What is important here is the intention and Ms Islam’s intention was not to make a financial profit,” he added.