Rozina Islam, a senior journalist at Bangladesh's most influential newspaper who was known for unearthing graft in the health sector, was probably feeling a sense of relief when she was entering the Secretariat on May 17 to get her second dose of the Covid-19 vaccine.
If only she knew that she would be the victim of another epidemic right at the heart of Bangladesh Civil Service, an epidemic caused by a virus which muzzles the freedom of the press through archaic and vague laws.
Rozina Islam was held at the Secretariat for five hours before being handed over to the police.
A case was filed against her by an official of the Health Ministry under the Official Secrets Act of 1923.
The British Era law, a sleeping monster which was never used against journalists in independent Bangladesh, was revived suddenly against the 42-year old journalist.
She is currently spending her days in Kashimpur Women’s Central Jail as a Dhaka court on Thursday fixed Sunday for passing an order on the bail petition filed by her lawyers.
Colonial Inheritance of OSA
The Indian Official Secrets Act, 1904 was enacted during the time of Lord Curzon, Viceroy of India from 1899 to 1905.
It was an amended and more stringent version of The Indian Official Secrets Act (Act XIV) of 1889, brought in at a time when a large number of powerful newspapers had emerged in several languages across India, and the Swadeshi movement was just starting to emerge.One of the main purposes of the Act was to muzzle the voices of nationalist publications.
In April 1923, a newer version of the Official Secrets Act was notified. The Indian Official Secrets Act (Act No XIX of 1923) replaced the earlier Act and was extended to all matters of secrecy and confidentiality in governance in the country.
The Official Secrets Act that Bangladesh inherited upon its own independence is the exact replica of the 1923 - curiously no government has ever felt the need to amend it in order to be more time-befitting
The maximum punishment for an offence under OSA ranges from 14 years in prison all the way to death penalty.
What OSA deals with
The law broadly deals with two aspects — spying or espionage, which is dealt with in Section 3 of the Act, and disclosure of other secret information of the government, which is dealt with in Section 5. The secret information can be any official code, password, sketch, plan, model, article, note, document or information, derived from a prohibited place.
OSA and journalism in Bangladesh
UNB talked to Mahmudul Haque, Lecturer of Mass Communication and Journalism at Begum Rokeya University and a former senior journalist himself, about the buzz surrounding OSA and the arrest of Rozina Islam.
He takes the course, ‘Safety and Security of Journalists’, which is only available in a few universities of the country.
Mahmudul said that this colonial era law has been put to work for the first time in Bangladesh as a new tool to muzzle the freedom of press in Bangladesh alongside DSA.
He said that the incident delivered a message to the investigative journalists of the country in order to make them feel hesitant and fear being persecuted for their reports exposing corruption of the bureaucrats.
“Like most of the laws enacted to curb the freedom of journalists in the country, this law is so vague that it doesn't define secrets,” he said.
He feared that the use of OSA will deteriorate the status quo at a time where the culture of secrecy and self censorship among the journalists are already high.
Mahmudul said that any information derived from a ‘prohibited’ place for the purpose of spying will be considered as an offence under OSA.
“The secretariat or the health ministry is not a prohibited place. Government itself provides ID’s to the journalists so that they can enter there to collect news,” he said.
Besides, when this law was enacted more than a hundred years ago, the political and social context were very different than the current time, he continued.
“It is highly unlikely that Rozina was collecting confidential state secrets as a foreign agent in an attempt to pass it over to enemies,” Mahmudul exclaimed.
When asked about the health minister’s statement where he said Rozina took snapshots of "secret documents related to purchasing vaccines," Mahmudul said purchasing vaccines can never be a secret matter related to national security.
“According to international laws, the people deserve to know about any bilateral treaty related to public health," he said.
Apart from OSA, she was also charged under sections 379 and 411 of the penal code.
"See, sections 379 and 411 deal with mere stealing and theft. This cannot coexist with OSA. So the entire process under which the FIR against her has been filed is faulty and I believe she will easily secure bail tomorrow."
Can journalists be exempted from OSA
There is a popular school of thought circulating in social media that OSA is only for government officials or defence personnels and journalists cannot be taken to trial under this act.
When asked about this, Mahmudul said, "Unfortunately this is not the case."
He cited section 3A (1) of the OSA which stated, "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"
So anybody, including journalists can be taken to court under OSA as the law explicitly mentions 'no persons'.
Contradicts with RTI
Right to Information Act 2009 (RTI Act) of Bangladesh has been promulgated recognising people's right to information as an inseparable part of the freedom of thought and conscience, and of speech.
Although it was initially appreciated as a significant step towards ensuring public participation and transparency at the time of its enactment, the effectiveness of the RTI Act has been questioned over the subsequent decade.
"The mere presence of OSA undermines the spirit of RTI and Article 39 of the constitution, which recognises freedoms of thought, conscience and speech as fundamental rights, " Mahmudul said.
"Besides, the Public Interest Information Disclosure (Provide Protection) Act, 2011 (The Whistleblowers Act) provides protection and safeguards to whistleblowers if the information is true and related to public interest," he added.
Laws like RTI and Public Interest Information Disclosure ACT will never be implemented properly as long as it coexists with laws like OSA and DSA, added Mahmudul.
Example in Neighbouring country
"Although OSA has never been used against any journalists in independent Bangladesh, there are a few instances of it in our neighbouring country India," said Mahmudul Haque.
He said that Saikia, a journalist of the Financial Express of India was arrested in February 2015 in a similar case to Rozina where the police accused him of writing stories and analyses from documents allegedly stolen from the government. He was released on bail in May after spending 80 days in jail.
Additional sessions judge Inder Jeet Singh who had discharged Saikia relied on a 1996 Supreme Court verdict in the case of Sama Alana Abdulla versus the State of Gujarat, Singh said that the test of whether a certain disclosure compromised a secret depended on whether an "official code'' or "password'' had been divulged in terms of Section 5 of the Act, The Times of India had reported during the time.
The report stated that the court's liberal interpretation lessened the scope for misuse of the OSA by official machinery as it made a sharp distinction between a secret document or report dealing with day-to-day routine affairs and one containing information on the sensitive issue of national security.
A Delhi court in 2009 greatly reduced the power of OSA in a case filed against the same journalist over disclosing cabinet notes by passing a verdict that a document merely labelled "secret" shall not render the journalist liable under the law.
All Colonial Era law should be scrapped
All the colonial era laws, not only the ones related to journalism, should be scrapped as they are against the spirit of our freedom, said Mahmudul Haque.
While most of the laws adopted in the three successor states of the British Raj do date from the colonial era, some draw particular ire for their history of having been used by the colonisers specifically to suppress dissent among the colonised.
One such example is the Contempt of Court Act, dating from 1926. It may be noted that in India and Pakistan, the Act was subsequently amended to fit in better with the changed context of the independent states. However Bangladesh still sticks with the 1926 text.
The offence of sedition, included in the Penal Code of 1860, still gets a lot of traction in all three successor states of the British Empire in the Indian Subcontinent, despite no longer being in the books in England itself since 2009.
The 1861 Police Act is also felt among activists to be more suited to maintaining control over a colonised population, as opposed to a civilian security force that is there to serve citizens in a democratic society.
Some of the most widely used colonial era laws that are deemed to curb freedoms include contempt of court
Mahmudul also said that Rozina and her family can file a case for wrongful confinement under the Penal Code against the concerned government officials if they believed she was being held at the secretariat against her will.
Besides,they can also bring charges against concerned officials under the Penal Code, or the Women and Children Anti-Repression Act 2000, if she was physically tortured or harassed while being held, he said.