Invasion of privacy
Mohiuddin Alamgir reveals how, despite High Court rulings against it, the amended law of tele-tapping is being used by state security organs, while violating the privacies of citizens, politicians and journalists
In a modern democracy, privacy is a fundamental human right underscoring human dignity and values such as freedom of association and freedom of speech.
One of the most important individual rights of the modern age, privacy is protected in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and in many other international and regional human rights treaties. Nearly every country in the world includes a right to privacy in its constitution.
Bangladesh is no exception as in Article 39, titling Freedom of thought and conscience, and of speech, and 39 (a), the right of every citizen of freedom of speech and expression and freedom of the press, are guaranteed.
However, it is privacy, which is at stake in Bangladesh as the Tele-tapping Act, amended on February 12, 2006, is allowing intelligence and law enforcing agencies to infringe on private sphere of life and freedom of expression. The issue has been criticised ever since its amendment, by countrymen, politicians, lawyers, academicians and journalists alike, as most citizens suspect that different state organs are tapping on to their private and professional conversations, over the phone.
One such critic is Mohammad Asafuddowla, former bureaucrat and media personality. 'Yes, we are accustomed to being tapped. It is a terrible experience and my family members feel insulted,' he said. 'This also leads to social harassment,' he added.
Mujahidul Islam Selim, general secretary of the Communist Party of Bangladesh, claims to being another victim of tele-tapping. 'Tele-tapping is going on and the government is trying to manipulate the state mechanism over others,' he said. 'These were the practices of the military regime during the Pakistan period as well during the regime of martial law administrators,' he said.
Renowned and veteran lawyer of the country, Barrister Rafiq-ul-Haque, also feels that this invasion of privacy on the general people and politicians is unacceptable. 'It is unbearable for anybody in a democratic country,' he said. 'It is fine if the process is used against and to find thieves, cheats and criminals. But using it against the citizens is not right and practicing such acts are against human and fundamental rights,' the lawyer added.
Sultana Kamal, former advisor of the caretaker government, executive director of Ain O Salish Kendra and an advocate for upholding human rights in the country, also expressed her dissatisfaction over the issue. She thinks that the government has prepared itself to invade the privacy of citizens through tapping telephones and thereby, crossing the line of decency towards human dignity.
'Nobody has any right to eavesdrop into the conversation of others,' she said. 'It depends on the individual whether he/she wants to share the details of such conversations. It is very likely that someone may be having intimate talks with their loved ones and eavesdropping on such conversations is an uncivilised act,' she said.
Mirza Fakhrul Islam Alamgir, senior joint secretary of the Bangladesh Nationalist Party (BNP), considers the issue a hindrance towards the practice of democracy in our country. 'If politicians are in the list of suspects of stage agencies, how then, can the general public confide in them,' he said. Moudud Ahmed, lawmaker and standing committee member of BNP, considers any kind of telephone tapping as 'unlawful'.
'My phone is a "public" phone,' joked Salahuddin Quader Chowdhury, standing committee member of BNP. 'I hardly talk about political matters on the telephone,' he added.
However, it was during the reign of the BNP-led Four Party Alliance when the much talked about tele-tapping law hit the ground in February 2006, amidst strong protests from the opposition lawmakers (Awami League) and despite their walkout en masse, from the Jatiya Sangsad, on February 12, the then government party passed a bill allowing intelligence and law enforcement agencies to tap telephone conversations.
The then Post and Telecommunications minister, Aminul Haque, proposed the passage of the Bangladesh Telecommunication (Amendment) Bill 2006, assuring the opposition members that there would be no abuse of the law and rather, it would help tackle criminal activities.
Opposition members had then said that the law was 'unconstitutional and against the fundamental rights of citizens, as it will infringe their right to privacy'. They also apprehended abuse of the law by officials who would tap telephone conversations.
The then-governing alliance, in fact, got an old law on telecommunications rewritten by the sheer strength of its brute majority in parliament, to authorise 'any officer of the intelligence agencies, national security intelligence, investigating authorities or law enforcing agencies to intercept and record' telephonic conversations of, and exchanges of messages – electronic or otherwise – between, private citizens,' according to Clause 97 (a), Bangladesh Telecommunication (amendment) Act, 2006.
With another clause, Clause 97 (c), the law also stipulates penalties, financial and physical, for telephone operating companies in case of their failure to comply with the government's demands as regards to intercepting and recording oral and electronic conversations between their subscribers.
The government authorities concerned had been very active in widely enforcing the law in the quickest possible time. The Bangladesh Telecommunication Regulatory Commission (BTRC) confirmed all private-sector mobile phone companies and completed the re-registration of their clients, recording personal information of over 11 million subscribers in the electronic database within two months, with a view to facilitate the intelligence agencies to tap conversations of the phone users.
The BTRC also asked the Bangladesh Telegraph and Telephone Board (BTTB), the public-sector telephone operating body, to re-register its subscribers of around one million, under the phone tapping initiative of the state.
'During the time, the government, especially the Directorate General of Forces Intelligence (DGFI), confirmed that all the mobile phone operators of the country purchased equipments that help them (security organs) to tap phones from their offices,' said an engineer, who works for a mobile phone company of the country, to Xtra. 'They call it Lawful Interception (LI), the legally sanctioned official access to private communications, such as telephone calls or messages,' he added.
In general, LI is a security process in which a network operator or service provider gives law enforcement officials access to the communications of private individuals or organisations. While countries around the world are drafting and enacting laws to regulate lawful interception procedures, it is being upheld in Bangladesh.
'In our country, we have the National Monitoring Cell, a combination of DGFI, RAB (Rapid Action Battalion), NSI (National Security Intelligence) and the Police,' said Md Rezaul Quader, director of systems and services of BTRC. 'They tap phones from the office of the DGFI,' he added.
'As far as I know, the National Monitoring Cell has a priority list, containing the name of politicians, civil administrators, journalist, criminals and many others, whose telephone conversations are monitored,' said a BTRC source.
Rezaul argues, citing 97 (A) and (C) of the amendment, that these allow the monitoring cell to tap phones. 'We do not know anything about the activities of the monitoring cell and so, even if anybody, wants to complain about the monitoring cells tele-tapping, we will not be able to do anything about it,' he answered on being asked about what one can do if he feels harassed by such intervention.
'The legislation is in violation of a number of fundamental and human rights guaranteed by the constitution,' said Moudud. 'Article 39(1) of the constitution guarantees, unconditionally, the freedom of thought and speech,' argued Moudud, who himself was the law minister when the bill was approved in parliament in 2006. 'Not all of our government's works were good,' he said, when asked why they had enacted the law.
However, the BNP-led four party alliance, the army-backed caretaker government and the present government all believe that the Bangladesh Telecommunication (amendment) Act, 2006 has been made in the name of protecting 'national security' and restoring 'public order'. They cite the success of the tele-tapping process through the apprehension of JMB kingpins Shaikh Abdur Rahman and Bangla Bhai (Siddiqul Islam) by law enforcers.
'The National Monitoring cell has that right, within the lawful frame, to ensure security in the country and they are allowed to tap phones,' said Rezaul, backing the government's stand.
'Numerous countries worldwide have a law regarding tapping,' said Sultana. 'However, they do it only when they have proof or when they suspect that someone is "working behind the scenes",' she said, on the issue of using it to ensure security.
Most experts and citizens believe that the Act is a new tool for the government to invade the privacy of the general people as well as to harass political opponents.
'They want to stop the voices that protest against the government's and DGFI's activities,' said Asafuddowlah. 'We are pushed, oppressed and harassed by them as we do not support the government's misdeeds. This is an abuse of power by the state security agencies,' he added.
'The black law, taken up by the BNP government, is currently being used by the present government with the help of the DGFI,' he said. 'The DGFI has no political jurisdiction, but ironically, they now dictate politics in the country. The DGFI, initiated in 1972 from three rooms in the cantonment, currently works from a 12-storied building. You can see how important they have become,' he reasoned further.
'This law is against the rule of law and fundamental rights of individuals thus contradicting our constitution,' opined Rafiq-ul-Islam, with whom Sultana, Moudud, Mujahidul, Fakhrul and Asafuddowlah, agreed.
On February 9, 2006, at a roundtable discussion on 'Bangladesh Telecommunication (amendment) Act, 2006: National Security or Infringement on Civil Rights', organised by New Age and Odhikar, a human rights orgainsation, Suranjit Sengupta, the Awami League presidium member and lawmaker, had termed the law 'undemocratic' and 'apolitical'. He demanded that the law be scrapped and had assured the audience that he would take steps to repeal the law if his party goes to power in the future.
However, the current chairman of the parliamentary standing committee on law, justice and the parliamentary affairs ministry is of a different opinion now that his party is in power. 'If the law is enforced to find outcriminals and is used as evidence for the crime, then it is allowable,' he said. 'However, it is unacceptable if it is used against a few targeted individuals,' he added. 'Ask the government,' he said, in defence, when asked about his previous commitment and hung up.
'The law should be changed, in such a manner that it is consistent with our country's constitution,' Moudud now demands.
Most discussants also note that the amendment is silent about privileged communication, for example, between a lawyer and a client, or a doctor and his patient. Under such circumstances, the tapped conversations cannot be used as evidence in any court of law.
But the Act has explicitly stated that the government has the power to record, prevent and collect information regarding communication made by any person through telephone and this recorded communication shall be admissible under the Evidence Act 1872. Furthermore, the Act is also silent about voice identification.
Legal battle
Challenging the government's decision, two writ petitions were filed with the High Court. In reply to the petitions, two rules were issued by the High Court in May 2006, firstly asking the government to explain the legality of the provisions for telephone tapping within three weeks and asking why the Telecommunication (amendment) Act 2006, enacted on February 16, 2006 making provisions for telephone tapping, should not be declared unconstitutional and void.
The court passed the orders after hearing a public-interest-litigation writ petition, filed by the news editor of Prothom Alo, M Sanaullah, and Abu Sayeed Khan, a freelance journalist.
The same bench on May 18, 2006, issued a rule on the government to explain within three weeks, the legality of the amended law upon a similar writ petition, filed by the editor of New Age, Nurul Kabir, and the treasurer of the human rights coalition Odhikar, Tasneem Siddiqui.
Pleading for the petitioners, former attorney general, Mahmudul Islam, told the court that the legislation was in violation of a number of fundamental rights and human rights guaranteed by the constitution.
Article 39(1) of the constitution guarantees unconditionally, the freedom of thought and conscience and such unconditional guarantee is meaningless unless there is freedom to express that thought, guaranteed under article 39(b), and the dictates of that conscience, he argued. Mahmudul Islam with Asaduzzaman moved the case for the petitioners.
Even after two years and eight months of issuance of the rules, the government is yet to answer.
Moreover, one of the close relatives of Abu Sayeed Khan, a freelance journalist, alleges that the DGFI personnel compelled Sayeed to withdraw the petition and forced him to leave the country. 'In 2008, during the rule of the un-elected army-backed interim government, DGFI picked up Sayeed, and kept him in custody for 22 days,' said the relative.
'According to Sayeed, the DGFI held a gun at him at point-blank range and tortured him, asking him to withdraw the petition. While in custody, he withdrew the petition and left the country later, fearing for his life,' he said.
'We filed the petition and the court also asked the authority to answer but I have not heard anything from them till now,' said Tasneem Siddiqui, one of the petitioners, a fact affirmed by lawyer Asaduzzaman.
'No reply to the rules has yet been submitted to the court,' said a law officer of the attorney general's office, in condition of anonymity, to Xtra. 'If the cases are enlisted in the cause list (the list of the cases to be heard by a court) for hearing, we will submit the replies of the rules to the court,' he added.
'It has not been taken into my notice and so I can not say anything about this,' said Mahbubey Alam, attorney general of Bangladesh government, when asked about the issue.
'Not everything we did was good'
– Barrister Moudud Ahmed, former law minister during whose tenure the law was amended
'The law is undemocratic and will be repealed if we go to power,'
– Suranjit Sen Gupta, current chair of parliamentary affairs committee on the law ministry, while in the opposition in 2006
'If the law is enforced to find out criminals and is used as evidence for the crime, then it is allowable,'
– Suranjit in 2009
Eavesdropper
· The BNP-led four party alliance passed the Bangladesh Telecommunication (amendment) Act, 2006 on February 12, 2006
· wo writ petitions filed with the High Court against the law in May, 200
· The HC ruled against the Act on May 18, 2006 asking the government to explain within three weeks, the legality of the amended law
· The government is yet to reply
· One of the petitions withdrawn after petitioner was coerced and tortured during interim govt rule: sources
· The law is being misused by the government agencies to eavesdrop on conversations of politicians and individuals who are critical of the government's misdeeds: experts.
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