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.
