A case has been filed against her under the Official Secrets Act of 1923. Using this law against a journalist is unprecedented in Bangladesh. Can a case be filed under this law against a journalist for collecting information?
It is irrelevant whether a case can be filed or not. The case has been filed and according to you, this is the first time it has happened in Bangladesh. The question is, can the case continue? That is a matter of the court. If she takes offence to the case, she can appeal against it immediately at the Supreme Court rather than waiting for it to take course. As this is a criminal case, the police may submit the final report without coming up with a charge sheet. If they submit a charge sheet and the court takes it into cognizance, then the procedure will commence according to the criminal code. She will be able to file a case under Section 561 of the criminal code to dismiss the case. She can file a writ petition immediately if she wants to challenge the case. After all, this is a repressive law of 1923. Since the inception of Bangladesh’s constitution, this law has been eclipsed by the constitution. The universally recognised doctrine of eclipse has rendered this law obscure. As the clauses of this law are contradictory to the fundamental rights of Part-3 of the constitution, this law is defunct according to Article 26 of the constitution. However, as we have assimilated this law by an order of the president to be effective from 26 March 1971, this law cannot be erased from the books until it is repealed by the parliament or if the Supreme Court declares it illegal.
Though this law may exist in the books, it has no function actually because of the doctrine of eclipse. That is why this law has consciously been swept under the carpet for so long in Bangladesh. This case has retrieved the law and slapped the national conscience. The court can certainly say that this law, which is in conflict with fundamental rights, is certainly defunct. The court then should render this law ineffective or declare it null and void. The government itself can abolish this law if it so wants or eliminate the clauses which are contradictory to fundamental rights. In India they have halted the use of Sections 303 and 109 of the penal code as it is contradictory to fundamental rights.
There is controversy over the Digital Security Act. The government has said that this law has been enacted against those who defame people by digital means. Journalists say the objective of the law is to harass and repress journalists. How do you view this law from an angle of fundamental rights?
The misuse of the Digital Security Act has already led to the death of a writer like Mushtaq Ahmed. It snatched away the fundamental rights of cartoonist Kishore. Innumerable innocent people have been placed behind bars by this law. So this is a repressive law. Its clauses are vague and undefined. For example, 'spirit of the liberation war' can be interpreted in different ways by different people and those who deviate from this undefined concept are having to lose their independence based on the subjective satisfaction of the government.
We have already seen the misuse of the Special Powers Act. The strong stance taken by the Supreme Court has rendered that law almost ineffective. The present Digital Security Act is unnecessary. There is no offence mentioned in this law that cannot be tried under the penal code. If necessary, the penal code can be amended. The government can save people's resources and protect them from misuse of digital devices, but not with a law that is contrary to fundamental rights. Even if it cannot be abolished completely, an acceptable law can be made in consultation with journalists and civil society.
The constitution guarantees citizen's fundamental rights and press freedom. So shouldn't the clauses of the Digital Security Act which are contradictory to press freedom be dropped?
Not just the clauses, but the entire law should be repealed. According to Article 26 (2) of the constitution, the parliament has no right to enact such a law. As this is a post-constitution law, there is no reason for it to remain intact if challenged in court.
In 2009 the Awami League government enacted the Right to Information Act in order to ensure people's access to information. But the Digital Security Act curbs that right to information. Which of these two laws should be given priority?
The Right to Information Act of 2009 is a very positive law. The objective of this law, as mentioned in its preamble, is laudable. The history behind this law is that Bangladesh was compelled to enact the Right to Information Act as an obligation to implement the UN Resolution 56 of 1946 and Resolution 19 of the Universal Human Rights Declaration 1948. Also, because Bangladesh is a signatory to the International Convention on Civil and Political Rights (ICCPR), we had to draw up this law to fulfill the conditions of the convention. After this law was enacted, the Official Secrets Act automatically lost its effectiveness. But we want to see the practical and successful manifestation of the Right to Information Act. This law and India's Right of Information Act are very similar.
In context of the Official Secrets Act and the Digital Security Act, how do you view Article 39 of our constitution?
No matter what laws there may be, Article 39 takes precedence above all. All other laws will remain below it and anything contrary to it will be considered null and void. Article 39 (1) is an absolute law that guarantees freedom of thought and conscience. Article 39 (2) has certain conditions, but the Supreme Court will decide if these are justified or not. The main component of the decision taken by the court will be objective satisfaction, not subjective. Article 39 is like the prophet Moses' staff that thwarted the evil plans of the pharaohs. The two repressive laws are rendered inactive and lifeless by Article 39. To understand Article 39, you have to understand the history of protecting freedom of thought and conscience, freedom of speech and expression. Democracy, which is the basic feature of our constitution, is an unchangeable rule.
Going back in history to the year 1644, poet John Milton had said, "Give the liberty to know, to utter and to argue freely according to conscience, above all liberties." Philosophers John Locke, Voltaire, John Stuart Mill supported such rights as was reflected in the 1689 Bill of Rights. The French Declaration of Rights of Man 1789 echoes this spirit as did the US Bill of Rights 1791, saying that the Congress cannot make any law that curtails freedom of speech or freedom of the press. This right has been protected by the Universal Declaration of Human Rights 1948, for which we enacted the Right to Information Act 2009.
Article 39 (2) is the shield for press freedom. Thomas Jefferson once said, "Were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter". The press is certainly the fourth estate. But yellow journalism and embedded journalism is certainly unwarranted. Surah 55 of the Holy Qur'an says, “He (Allah SWT) created man and taught him clear expression.”
An attempt was made in 1952 to snatch away this right to expression which led to the language movement and, ultimately, to the birth of Bangladesh. In other words, Article 39 is the result of a long history that eclipses and nullifies all black laws.
One should read the autobiography of the father of the nation as an unwritten constitution in order to understand Article 39. After spending 14 months in prison in 1958 when he was released and met his family, only to be arrested at the jail gate under the security act, you must understand his state of mind. One must understand how a rising leader (Shamsul Haque) from Tangail who had easily defeated a Muslim League candidate had lost mental balance after being imprisoned for so long without trial. He was lost from our history. That is why when Article 26 of the constitution on fundamental rights was placed before the father of the nation, he happily signed it in the hope that there would never be repressive laws. That is our unwritten constitution that must be read along with Article 29 or 26.
The people still look to the Supreme Court as the last resort. What is to be done to maintain this position?
Thank you for viewing the Supreme Court as the last resort. The only way to hold on to this perception is through eternal vigilance and to mobilise public awareness about the law and their rights, which the newspapers are doing relentlessly.
The separation of the judiciary finally came about after the ruling of the much-discussed Masdar Hossain case, but has the judicial service rule been able to ensure independence of the lower courts? It is alleged that the executive forcefully controls the lower courts.
Rules can never take precedence over the main laws. Until and unless Article 116 of the constitution of 1972 is reinstated, the separation of the judiciary will remain a far cry.
The chief justice recently lamented about the infrastructural problems of the lower court. It is said that the budget for the judiciary is inadequate. Isn’t this inadequate allocation an indirect interference in the judiciary by the executive?
Merely lamenting is not enough. Necessary steps must be taken to redress the cause of lament.
There had always been a jam of pending cases in the court. Has this increased down the years, or decreased?
It has certainly increased. However, the ratio between the number of judges and the population is unwarranted in comparison to other countries. If we continue with so few judges for such a burgeoning population, the jam is bound to increase rather than decrease.
* This interview appeared in the print and online edition of Prothom Alo and has been rewritten for the English edition by Ayesha Kabir