June 18, 2021

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Rozina’s case confuses ‘government secrecy’ and ‘espionage’

There has been a lot of drama about the government’s privacy law recently. Rozina Islam, a journalist from Prothom Alo, was forcibly detained for six hours in the office of the Secretary to the Secretary of the Ministry of Health at the Secretariat on charges of stealing government confidential information. Live footage of a woman journalist being broadcast on television or YouTube seemed painful and eye-catching. It seemed that a professional pickpocket was being handcuffed and beaten in Gulistan. He was then arrested and a formal criminal case was filed with the police station at night under the Official Secrets Act. He was dragged to court and sent to jail. The scene looked defamatory because of the respectable woman. He was released on bail after being imprisoned for about seven days. The case has been kept open. Thanks to the media, everyone is aware of the flow of events.

The understandable purpose of the law is to ensure the protection of confidential military or paramilitary matters by preventing espionage. However, the title of the law is not appropriate. This is confusing. The title should have been the Espionage Act. Section 2 (6) of the Act gives a detailed description of the ‘forbidden place’.

Needless to say, cantonments, arsenals, warships, warplanes, submarines, all kinds of war materials — as well as large civilian installations such as bridges, bridges, culverts, nuclear power plants, all similar power generation plants, communication towers, radio-television broadcasting stations, Oil refineries, mines, roads, waterways, railways, etc. can also be indirectly considered military installations at special times.

Sensitive military-civilian installations are located in prohibited areas and sensitive military weapons, ammunition, equipment, etc. are secretly stored in the interest of national security. Free entry and movement of the public in such places and installations is prohibited, regulated or controlled by government order, from time to time.

Pursuant to Section 3 (1) of the Act, any person may, with the intention of harming the interests or security of the State, withhold any confidential information on any place, establishment or subject prohibited in Section 2 (6) of the Act, e.g., map, sketch, model, picture, plan, document Cannot unauthorisedly collect codes, passwords, documents, etc. for the purpose of providing to the enemy or for direct or indirect use or benefit of the enemy. The four things to be noted in the law are (a) Prohibited places, (b) Prohibited or controlled matters, (c) Intended to disrupt the security and interests of one’s own state and (d) Intended to benefit the enemy state.

From this point of view, the law should have been a espionage act similar to the US Espionage Act, 1918.
Due to the title of the Official Secrets Act or the Official Secrets Act, 1923, there is confusion, ambiguity, ambiguity, etc. about the meaning, purpose and underlying provisions of the Act. The sub-heading of Section 3 (1) of the Act states ‘Penalties for espionage’. The legislators themselves have probably confused ‘government secrecy’ and ‘espionage’ in this case. If the law is repealed and separate laws are enacted on ‘government secrecy’ and ‘espionage’, the chances of recurrence of such incidents and such undesirable and unwanted misapplication of the law may be reduced.

I read the law. I have been in the legal profession for some time. I have worked as a judge for a long time in all positions from assistant judge to district judge. I have also held every post in the Ministry of Law from Assistant Secretary to Secretary. Since then it has been acquainted with the Official Secrets Act or the Official Secrets Act, 1923. Because of the title of the law, I initially knew the law as a law of crime similar to that of journalist Rozina Islam. I understood the correct meaning by reading it again and again. I am sure that ordinary people, far from it, police, bureaucrats, judges, law teachers, many of them read the law fluently and cannot easily understand its true meaning. It will take a long pursuit.

If the Secretariat needs to protect the confidentiality of government documents, the Secretariat Guidelines have detailed provisions on how to do so. If the document is confidential, it is necessary to handle similar documents with sufficient care by pasting ‘Confidential’ or ‘Highly Confidential’ slip in red ink on the cover of the document. First, how the non-disclosure agreement documents of the so-called confidential information, if they were really confidential, would have been lying on the table in the secretary’s private secretary’s room! Second, whether the documents were confidential at all. Thirdly, if there is a case against Rozina Islam, has there been an administrative disciplinary case against the officer concerned, at least for the case of abatement or for irresponsibility?

If the search for information is thus hampered by the declared policy of administrative transparency, accountability and zero tolerance against corruption, it indicates a clear contradiction in state policy. To collect information or news, journalists are officially provided with a card with permission to enter the secretariat. So how is the Secretariat a ‘forbidden place’, how can government information be ‘confidential’ and how can information gathering be information theft or espionage?

The Secretariat is not a forbidden place. Although some of the information and documents kept in the Secretariat are administratively confidential, they are not statutory (by law) state confidential information under the Official Secrets Act, 1923, which is in the interest of state security and interests and for the benefit of the enemy state. Statutory confidentiality and administratively confidentiality are not synonymous. Israel could be an enemy of the Arabs. It is not known whether Bangladesh has any declared enemy state. The government of Macmillan, the prime minister of the United Kingdom, resigned in 1973, citing the failure to stop espionage in the scandal involving war minister Profumo and sex worker Christian Killer. Lawrence of Arabia played a successful role in the destruction of the Ottoman Empire by uniting with the Arabs as a British spy and commander.

Israeli spy Eli Cohen, in his capacity as a key adviser to the Syrian defense ministry, was a close friend of the Syrian Arabs from 1981-1985 and provided free military information to enemy Israel.

Espionage requires two hostile states, which is the main theme of the Official Secrets Act, 1923. The health minister said Rozina Islam was gathering confidential information from a non-disclosure agreement on the vaccine, which could have led to Bangladesh being liable for breach of contract. The Non-Disclosure Agreement (NDA) is never a secret document.

There is never any secret information. Generally, in the case of bilateral trade agreements, the parties through the NDA have agreed in advance that if one party discloses trade secrets to the other party during the execution of the original supply or production agreement, the other party will not disclose the confidential information to any third party. .

Many have called for the immediate repeal of the Official Secrets Act, 1923, calling it a colonial evil law. There is a requirement in the law, the law cannot be responsible or evil due to misuse of special purposes in the hands of government bureaucrats. If necessary, the law may be amended, modified or re-enacted to prevent misapplication. Those responsible for legal ignorance and misapplication can be held accountable