What Does the Law Say About Search and Raid in Bangladesh

 Right now, almost everyone in Bangladesh is talking about the arrest of actress ‘Pori Moni’. In the last few days, the law enforcing agencies of Bangladesh have raided houses of a few films actress and female ‘models’ and a film producer. RAB confirmed that they found foreign liquor bottles and other narcotics like yaba, shisha, ICE consuming pipes, blotting papers for LSD etc. from their residences. There are allegations against two models that they have also been members of an organised blackmailing group and have been blackmailing many a wealthy men for big amount of money.

However, just before her arrest, Pori Moni claimed in a live video from her verified Facebook page that a few men were at her house and was trying to enter into there forcibly without disclosing their specific identity. She assumed they could be robbers. She also claimed she had called her nearest Thana for police help and was waiting for police to turn up for her rescue. Though, till the end of the live video, apparently no police officers from Banani Thana made an entrance. In Facebook live video, Pori Moni also claimed that she had asked Banani Thana to confirm if they were aware of any raid at her house and Banani Thana couldn’t confirm it.

Albeit, following her arrest, the RAB confirmed to the press that the raid was carried out based on specific allegations and information against this Dhallywood super star. RAB spokesman also confirmed to journalists that the alleged heroine turned her house into a mini bar and regularly arranged unlawful parties along with her accomplices at her residence while they were also allegedly involved in blackmailing and extortion.

The allegations against other two models and Pori Moni are quite similar and in all three house raid incidents, official legal actions have been taken after the alleged recovery of narcotics and alcohols. So far, the media reports reveal that there was neither any earlier case in their name nor the law enforcers have any search warrant from the court against them.

There are specific laws to conduct search of person and house in Bangladesh. Search has always been a sensitive issue across the globe as it may infringe citizen’s right to privacy and a number of other human rights. Therefore, laws relating to search are enacted and executed carefully now a days.

Article 31 of the Constitution of the People’s Republic of Bangladesh guarantees right to protection of law and says it is an inalienable right of every citizen of this country and no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. Hence, law enforcers can’t bring an accused in front of the media before proving the guilt and must not demolish anybody’s reputation.

Moreover, article 33 of the constitution implies duty to inform the grounds of arrest without any undue delay to any arrestee while article 35 enshrines individuals right not be a witness against himself. Article 43 secures right to be safe in home against unlawful entry, search, seizure and right to privacy. Therefore, it is very clear from the text of the constitution that it intends to protect the citizens from unlawful search.

Hence police must comply with the law and get a search warrant from a competent court before carrying out a search or raid at a private place. In order to get a search warrant, police are required to demonstrate to the court sufficient and reasonable evidence of a crime. It should clearly state where exactly the search should take place i.e particular place or part thereof, including a specific date and time.

The power to issue a search warrant should be exercised with due care and diligence by the court. The Code of Criminal Procedure (CrPC), 1898 suggests three specific circumstances under section 96 where a search warrant may be issued: i) if any court has reason to believe that a person will not produce a document or thing as required by the summons of that court, or

ii) the document or thing is not known to the court to be in the possession of any person, or

iii) the court considers that the purpose of any inquiry, trial or other proceeding under the code will be served by a general search or inspection.

Additionally, section 98 of the code empowers a District Magistrate or a specially empowered executive magistrate to issue a warrant for search of a house upon information and after such inquiry as s/he thinks necessary to enter into a specified place and search in specified manner.

However, there are few exemptions for hot pursuit as section 165 of the CrPC and section 23 of the Narcotics Control Act (NCA), 2018 have been enacted as exceptions to these general rules of searches because it is recognized that in certain emergency situations it may be necessary to permit the police officer to carry out searches without first applying to the courts for authority. Otherwise, the purpose of the search may be frustrated.

According to the said provisions an officer in charge of a police station or an investigating officer or a specially empowered office under the NCA may proceed for search without warrant if the officer reasonably believes that a thing cannot in his opinion, be otherwise obtained without undue delay. The officer requires to record in writing the grounds of his belief and specify the thing for which the search is to be made.

Nevertheless, the provisions as to search enumerated in the CrPC shall also apply to search without warrant. In case of every search, the officer shall call upon two or more respectable inhabitants of the locality to attend and witness the process and that shall be carried out in their presence. The term respectable inhabitant is not defined in the law and there is scope of misusing it. They may not be allowed to witness everything during the search or may not act independently due to the influence of police.

In accordance with the law, the occupant of a house or some other person in his/her behalf shall in every instance be permitted to attend during the search. Regulation 280 of the Police Regulation of Bengal, 1943 prescribes detail responsibilities of police while carrying out a search which must be followed scrupulously. Taking extra caution, be sensible for search at a private place where woman is living is mentionable among them. Same rules will be applicable in the area under DMP as well.

Although the law authorizes search without warrant in limited circumstances, police should not use this exception as a sweeping power. Aside cooperating with the police during search, the occupant of a house has some rights i.e. asking for identification, knowing particular grounds for search, seeing the warrant etc. Further, the occupant can restrict the search inside a definite area stipulated in the warrant and if they violate the manner of search listed in the warrant then the occupant can even challenge them. Besides, any evidence seized during the search can’t be used in the court if it is collected infringing the law. 

Still there is always a real danger that one may plant evidence against anybody out of rage during a search and police may use it as evidence against that person. To avoid this, searches should be video recorded, from the beginning till the end, to ensure transparency and accountability. Also, a provision may well be introduced to carry out a search in presence of a preferred lawyer of the accused, if immediately available to avoid any future legal collision and mistrust.

Published on Dhaka Tribune as Op-Ed on 8 August 2021.

Can the Sun Shine through Dark Clouds?

The Bangladesh parliament has enacted the Public Interest Information Disclosure (Provide Protection) Act (popularly referred as the Whistleblower Protection Act) to guarantee legal protection to the whistleblowers back in 2011. Albeit the principal aim of this law is to ensure safeguards to the whistleblowers yet journalists are also eligible to take advantage of this legislature for their professional purpose. Regrettably, after a decade following its enactment, very little is known about what the law means and what it can do to improve transparency, accountability and good governance in public domain. Most of the people including the government employees, activists and even journalists remain ignorant about the existence of such a legislation. Consequently, the application of this piece of sunshine law becomes rare in this country.

The recent incident with Rozina Islam, a senior reporter of the leading Bangla daily Prothom Alo brings this issue into light again. Being a journalist, Rozina Islam is entitled to collect evidence and data from any government office while the Whistleblower Protection Act of 2011 enables anybody to disclose public interest related information and provides statutory safeguard from all types of civil and criminal cases or departmental proceedings or any kind of action, punishment, discrimination etc. Whistleblower denotes any person who discloses the public interest information (S. 2 (5)). The person may leak information from inside or outside of a public office. The main focus of this law is to uphold public interest and combat corruption by disclosing material information about any irregularity.

Investigative journalist Rozina Islam claimed that she went to the room of the personal secretary of the secretary of health services division at the secretariat to perform her professional duty as she got information from her source whereas the health ministry officials brought allegation for theft and photographing of ‘sensitive’ state documents. Subsequently, they lodged a criminal case against Ms. Islam under the Official Secrets Act, 1923 & the Penal Code, 1860.

However, the Right to Information (RTI) Act, 2009 along with the Whistleblower Protection Act, 2011 create a new regime for free flow of information and fearless journalism for public interest in Bangladesh. This couple of legislations override widely criticized the Official Secrets Act and some other laws i.e the Evidence Act, 1872 (S. 123: evidence as to affairs of state); Rules of Business, 1996; the Government Servants (Conduct) Rules, 1979 etc after their enactment. Section three of both the RTI Act & The Whistleblower Act provide supremacy over any conflicting provision in any other law having force for the time being in the country. So, there is no scope of hiding any public document in the tag of ‘confidential’ or by virtue of the colonial-era Official Secrets Act except truly classified secret document like sensitive defence policy, important formula, bi lateral confidential contract etc. However, despite extensive condemnation, S. 32 of the Digital Security Act (DSA) of 2018 includes the Official Secrets Act although the RTI Act will prevail in case of any incongruity between these two (Section 3 of the DSA).

Rozina Islam is a well-known correspondent for unearthing graft in various government projects. Recently she published a series of investigative reports disclosing numerous corruptions in health ministry amid COVID19. Therefore, this is a general assumption that she went to the health ministry this time to get or verify information relating to public interest. Now, the question is what does the public interest information mean? In accordance with the Whistleblower Protection Act, public interest information means such an information of any agency which expresses that, any officer was, is or may be involved in: irregular and unauthorized expense of public money; mismanagement of public resources; misappropriation or misuse of public money or resources; abuse of power or maladministration; committing criminal offense or illegal or prohibited acts; a conduct that is harmful or dangerous for public health, safety or to the environment; or corruption. Rozina’s earlier reports directly dealt with the abovementioned issues. If in the present case, Ms. Islam could establish that she was trying to gather information relating to public health or citizens’ right to health then the case will automatically be unmaintainable against her.

However, disclosure of information relating to public interest is guaranteed under the Public-interest Information Disclosure (Provide Protection) Act, 2011 (under section 4). Thus, if Rozina believes on reasonable ground that the information is true what she allegedly tries to collect; or if there is no reasonable ground to believe the truth of the information, but she believes that the information may be true and is of sufficient significance to justify its disclosure so that its truth may be investigated then her alleged act neither amount to a crime nor fall under the purview of the Official Secrets Act as she did not disclose the information to our enemy. Moreover, she was not a trespasser from where she allegedly took information.

Nevertheless, can the ministry debar disclosure of a document under a non-disclosure agreement with anybody else? The answer is not straightforward though there is no such exception enumerated in the said Act. Only concern of the mentioned law is the information must have public interest element and reasonable believe of the informant about the veracity of the information.

Section 5 of the same Act confirms legal protection for the whistleblowers including non-disclosure of identity without consent; immunity from civil criminal or departmental proceedings; no measure prejudicial to financial, mental or social reputation; prohibition of demotion, transfer for harassment, forced retirement or treat discriminatorily by employer to an employee etc. If anyone contravenes this provision, s/he shall be sentenced to imprisonment for a minimum term of two years but not exceeding five years or with fine or with both and if that person is a government employee, then departmental actions shall have to be taken apart from the mentioned punishment (S. 9).

However, anti-freedom laws like the Official Secrets Act, the DSA not only create great obstacle for journalism but also violate statutory rights of the citizen to get information and disregard the Constitutional spirit to uphold the freedom of press. These outdated and suppressing laws foster the culture of secrecy inside the bureaucracy year after year and give impunity to the wrongdoers. A democratic republic like Bangladesh whose ancestors fought for freedom must not oppress its citizen by those autocratic laws. Hence, in Mujib centenary all such provisions must be scraped down immediately to build an exploitation free society.

Published on the Daily Star on 25 May 2021