Energy justice to combat power crisis in Bangladesh

ENERGY justice denotes the concepts of equity, affordability, accessibility and participation in the energy system and energy transition regardless of race, nationality, income or geographic location. Energy justice aims to make energy accessible, affordable, clean and democratically managed for all communities and to protect them from the disproportionate share of costs or negative impacts relating to building, operating and maintaining electric power generation, transmission, distribution systems and to ensure equitable access to benefits from each system. Energy justice is a community-centric approach that focuses on the ways communities should have a say in shaping their energy futures through policy involvement. Hence, energy justice is significant for a country like Bangladesh to ensure access to affordable, safe and sustainable energy for all.

However, Bangladesh is becoming an extremely electricity-hungry country nowadays while the whole planet has witnessed a global crisis in the energy sector in recent times due to the aftermath of the Covid pandemic, climate change, brewing economic recession, Russia-Ukraine war etc. The global crisis has also exposed energy supply chain shortfalls. Liquefied natural gas has become eight times costlier and crude oil about five times, compared with April 2020. Just a few months back, it was thought that Bangladesh had left its power outage history far behind as it fulfilled almost 100% of power demand following rapid progress in this sector by focusing on capacity building as well as increasing transmission and coverage in the last one decade. We have overcapacity to produce enough electricity but do not get enough resources at an affordable cost now because of a lack of prioritising sustainable sources to produce electricity continuously. Consequently, the previously short outages, usually caused by a brief grid malfunction or a technological fault, have now transformed into the signs of an energy crisis.

Nonetheless, ensuring affordable, uninterruptable, and quality energy for all with limited resources and infrastructure is a great challenge for Bangladesh. Additionally, several factors, including lack of time-befitting decisions, sustainable master plan and policy, administrative incapacity, system failure, resource constraints, growing preference, predatory expansion, corruption and limited energy storage systems, have accelerated the present power outage in Bangladesh.

Electricity generation in Bangladesh is mainly dependent on gas and coal, whereas the current gas reserves of Bangladesh are not sufficient for industrialisation and power generation. As a result, it has become heavily reliant on the importation of coal, oil and gas from multiple overseas sources. However, the international reserve of fossil fuels is not endless and there are many power games and politics involved in the price and supply of them. The current massive price hike of traditional fossil fuels, ie oil, gas and coal in the international market, made the present power crisis inevitable in Bangladesh. A lack of exploration of alternative sources and initiative to spread and popularise renewable energy has created threats to supply and national security as well.

The government prepared a periodic master plan for electricity generation, namely the Power System Master Plan in 2016, which also focused on fossils instead of renewables and called for 35 per cent gas and 35 per cent coal-based electricity generation. As a result, 70 percent of projected energy demand in 2026 would have to be met through imports, despite domestic gas’s declining contribution to the energy mix. Therefore, the country’s energy security will face a threat in the coming days, which is also reflected by the current crisis. Conversely, renewable energy is being emphasised to reduce the dependence on natural energy and the effect of greenhouse gases globally.

Regrettably, the Power Development Board has recently drafted an Integrated Energy and Power Master Plan without following the energy justice approach. It prioritises natural energy imports for the next five years, despite forecasts of the international energy market remaining volatile over that time. The draft master plan disregards the potential of expanding renewable energy, the need to explore internal gas resources and the need to phase out costly oil-fired power plants. It also lacks a roadmap to reduce power sector system losses.

The authorities should concentrate on increasing investment in renewable energy gradually to overcome the existing power crisis and reduce energy importation. Bangladesh holds ample exploitable renewable sources of energy that could be used to address and ease the country’s current power issue. Solar power plants, winds, tides, bio, hydrological, solar thermal, ocean waves and the Bay of Bengal should be utilised on a large scale at this moment to handle the situation.

Experts roughly estimate Bangladesh’s wind and solar power potentials to be 60,000 MW and 35,000 MW, respectively. A wind or solar power project is implementable within nine months to a year. Also, our wind potential is not confined to Cox’s Bazar and other coastal areas only. We have a good supply of wind power after a certain altitude in our country. Arguably, it is possible to generate 33,000 MW at an 80-metre altitude from wind power, whereas the generation could be doubled by raising the height to 120 metres. Moreover, an agro-based country like Bangladesh may lean on biomass energy more, using only agricultural crop residues, animal manure, and municipal solid waste. Democratic management of energy, well-trained human resources, and modern technology can quicken this process.

The state should now take some immediate actions to combat the power crisis, including adaptation of the energy justice approach in the energy system, putting emphasis on purchasing local gas at a low cost instead of importing it at a high rate and trying to reserve it, as well as concentrating on strengthening state-owned BAPEX rather than giving priority to foreign companies. Because we wouldn’t be able to afford the same previous mistakes of the policymakers in the energy sector anymore.

Nevertheless, being a developing country, maintaining a balance among affordability, environmental sustainability, and energy security is not easy for Bangladesh. Hence, it is high time the authorities established energy justice to frame a long-term sustainable plan in order to prevent another energy crisis of this kind in the future.

Published on the New Age as lead Sub-editorial on 15 October 2022 at page 8.

Published on the Daily Sun as Op-ed on 19 October 2022 at page 6.

Published on the Asian Age as lead Sub-editorial on 20 October 2022 at page 6.

Published on the Daily Observer as Op-ed on 21 October 2022 at page 5.

Published on the daily Ittefaq (Bangla) as Sub-editorial on 21 October 2022 at page 8.

Published on the daily Sangbad (Bangla) as Sub-editorial on 21 October 2022 at page 6.

Published on the Business Standard as Op-ed on 24 October 2022 at page 15.

Published on the Daily Jaugantor as Sub-editorial on 30 October 2022 at page 4.

Published on the Energy & Power Magazine as an Article on 3 November 2022.

Online Content Regulation v Freedom of Expression

The livestreaming of the Christchurch terrorist attack in New Zeeland in 2019 has demonstrated potential threat to spread illegal and harmful contents on social media by the terrorists to amplify their mal intention to the general users of internet. As a result, online content regulation gets high political momentum around the world after the live video broadcasting of massacre of 51 Muslim worshippers at the Al Noor Mosque by terrorist Brenton Tarrant. Earlier, the global social media companies govern contents voluntarily through their own policy and by mostly depending on AI technology and users’ report to remove any illegal or harmful content. However, this incident has shifted the burden from voluntary action to mandatory legislative measure.

More than 40 new social media content regulation laws have been adopted worldwide in the last couple of years while another 30 are under active consideration. These laws aim to prevent social media platforms being weaponised for the purpose of flourishing extremism and propaganda by forcing online providers to control content on their platforms more cautiously. These legislations attempt to moderate both illegal and harmful but not directly illegal contents on online surface. Illegal content would encompass a large variety of items which directly contravene the legislation, such as hate speech, incitement to violence, child abuse, revenge porn etc. Instead, harmful content, refers to information that does not strictly fall under legal prohibitions but that might nevertheless have harmful effects like portraying self-harm, suicidal attempt content, cyberbullying, mis-or disinformation etc.

Soon after the Christchurch incident, the parliament of the commonwealth of Australia had enacted the Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act in March 2019. This new law created fresh offences and liability for the providers of online contents and hosting services to make their platforms safe and responsible. The law compels tech companies to expeditiously remove illegal and harmful contents and failure to get rid of the content in a stipulated time could bring imprisonment and fines of up to 10% of their annual profit. Again in 2021, Australia has enacted unique Online Safety Act which includes world-first Adult Cyber Abuse prevention mechanism.

Likewise, Germany, France, European Union, Turkey, Brazil, Russia, United Kingdom, United States, India have either already passed or under process to formulate similar legal framework to govern social media contents. However, there is an interesting discourse around the globe whether judiciary or private tech company will determine the legality of content as the recent trend of worldwide online safety laws assign obligation to assess the legality of the content on private tech companies. Nonetheless, these laws provide forum for setting up a complaint handling system to make the tech giants accountable and ask them to produce transparent annual report on their actions against illegal and harmful contents.

However, there is a common allegation of restricting freedom of expression and imposition of censorship against these laws as there is genuine fear that many hosting providers and platforms will remove contents to avoid liability without assessing the merit of the content judiciously. Additionally, outsourcing of private tech companies or asking a government body instead of employing independent judiciary to evaluate the legally creates apprehension of restricting dissenting voice on social media.

However, Bangladesh has faced a lot of consequence arising out of illegal and harmful contents on social media ranging from livestreaming of suicide, disclosure of revenge porn, cyberbullying to harassment, hate speech, abuse, communal unrest etc. At this moment, there is no specific law governing illegal and harmful social media contents, although there are some controversial laws like the Digital Security Act, The ICT Act mainly to prevent cybercrime but not exhaustive to handle illegal and harmful contents.

Now, Bangladesh mainly follows command and control approach to regulate toxic contents on social media where both the government and the court orders telecommunication regulatory authority and digital security agency to scrap any controversial content or block access to a particular link from Bangladesh. Hence, there is actual risk of limiting the freedom of expression, plurality of opinion and restricting dissenting voices in absence of a clear-cut standard to determine illegal and harmful contents.

Nevertheless, the Bangladesh Telecommunication Regulatory Commission (BTRC) released a draft regulation on digital, social media and OTT platforms in 2021 to comply a court order to formulate policy for OTT platforms only that has great similarity with the much criticised the Indian Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. Immediately after publishing the draft regulation, it received massive criticism from rights group and civil society for limiting freedom of expression. There are so many incomplete and vague terms which have no concrete definition i.e. sovereignty, integrity or security of the country, decency or morality, friendly relations with foreign countries, or defamation (clause 6.01 (d)). Lack of proper definition and not knowing the exact elements to constitute the crime will create a fearful environment to express opinion as there are several allegations of irrational use of these grounds to jail people earlier.

Again, clause 7.03 of the draft obliges intermediaries like messaging service providers to unlock privacy of correspondence of the users to trace the first originator of a message and reveal his/her identity upon receipt an order from court or BTRC which is a clear violation of article 43 of the constitution. Moreover, authorizing BTRC through this draft regulation raises a genuine apprehension of possible arbitrary use of this power. There are several other scopes in part two and three of the mentioned regulation that can violate citizens’ right to freedom of expression and privacy guaranteed under the constitution. Hence, the draft regulation should be prepared newly respecting the international human rights standards, established best practices and aiming to create conducive, safe online environment without contravening rights of anyone.

Published on the New Age as Sub-Editorial on 10 September 2022 at page 8.

Published on the Daily Sangbad as Sub-Editorial on 15 September 2022 at page 6.

Published on Sarabangla as Opinion on 1 October 2022

Published on Drik News as Opinion on 23 October 2022.

In Quest of a Justice Friendly Family Court in Bangladesh

The cabinet okayed the draft Family Court Law 2022 on 3 July to implement a Supreme Court judgment that declared all martial law regulations and orders void during General Ershad’s regime. The present Family Court Ordinance (FCO), 1985 enacted at that time while the draft family court law aims to repeal the earlier. According to the press, the cabinet secretary confirmed that the proposed law contains nominal changes than the former. There are only couple of mentionable amendments in the draft law; other than these, it is merely a conversion of previous texts from English to Bangla. The new law provides a bigger forum for appeal which includes all judges having the status of district judge would be able to dispose of the appeal arising out of family courts now and enhancement of court fees from taka 50 to 200.

These minor changes exasperate rights activists and legal experts as they demand rigorous alteration of the current provisions of the FCO. The existing FCO clearly fails to ensure complete justice rather creates complexity and multiplexity of suits. As the government has taken initiative to scrap the present law, hence this write-up is aiming to bring some significant issues into the light to re-evaluate before finalising the draft law in the parliament.

The family court is an important court considering its impact on society not only in our country but also globally. The main reason to create a separate specialised court for family matters should be to resolve it speedily with fewer expenses and formalities whereas both the present and proposed laws have clumsy provisions to delay the proceeding. 

The draft law does not define family or family matters; it only determines the jurisdictions of the court in divorce, dower, maintenance, restitution of conjugal rights and guardianship & custody. However, other family matters like validation of marriage, adoption, repression of women, domestic violence, maintenance of parents, legitimacy of children, property distribution, adultery etc are neglected in our law. Family court is not like any other traditional court rather it deals with personal, familial, matters relating to well-being of children and emotions of the parties. Thus, it must have some unique characteristics than regular courts. People should not go to different places for other family matters. In the context of Bangladesh, we have seen that the justice seekers are instituting multiple suits and cases in family matters in multiple courts i.e one for divorce, dower and maintenance of wife and children in family court and another for dowry in criminal court.

Again, the Parent Maintenance Act fixes first class magistrate court to resolve the matter there. Sometimes some are going to the Nari O Shishu Nirjatan Daman Tribunal who does not get justice in family court. Again, occasionally husband files a declaratory suit in the civil court to declare the Nikahnama non-binding upon him as it is allegedly obtained by coercion from him. If we could create a court having concurrent civil and criminal jurisdictions and power to try all the family matters in the same room then the litigants will get one stop service at least expense from one single court quickly. 

Earlier there was a debate about whether the FCO is only for Muslims while the Pochon Rikssi Das v Khuku Rani Dasi and others, 50 DLR (HCD) 47 (1998) clarified that all citizens can seek remedy in family court irrespective of their religious faith, so far it is applicable for them. However, it is not clearly stated in the new law too.

This confusion can be removed by insertion of subject matters of other faiths like adoption, right to separate residence etc too. In addition, the new law should have provisions to settle family disputes of indigenous people considering their own culture, tradition and values as well.

There is another problem as to the judge of the family court. The law appoints all the assistant judges as the judge of family court. Arguably assistant judges have less maturity and experience to handle with the family matters as it is the entry post of their career. Henceforth, the legislators may consider this point to make more experienced judges as family court judges. In India, one must have seven years of experience to deal with family matters as a judge. Moreover, under the present system, usually family court does not have separate room and the same assistant judge try other civil matters and family dispute as well which put extra work load and sometimes cause delay.

Further, judges of the family courts are not well trained to deal with issues affecting family matters. These disputes often involve very difficult circumstances, for example relationship breakdown or best interest of the child. The family court judges need intensive and special training as these cases affect peoples’ lives in a very close and sometimes devastating way. Our court proceedings are also not very women, transgender and children friendly. The whole process and administration should focus on gender-based equality while determining a family suit and the law itself should emphasis on gender sensitivity to avoid contentious words in pleadings and unnecessary character assassination of a party. Moreover, provision relating to the admission of digital evidence is not inserted in the proposed law.

Admission of digital evidence can speedier the justice process in family suits and helps the court to come to a conclusion smartly. Sometimes the parties and witnesses are too frightened or upset to be in the courtroom whereas an arrangement can be made to help them by using a video link.

This law has provision of double Alternative Dispute Resolution (ADR) which requires additional training for the judges to make compromises among family members. Thus, the appointment of expert court officers like counsellors is urgent in all family courts to deal with psychological matters with more care and caution. The new law may also make ADR mandatory before initiating any family proceeding and in case of failure of ADR only, the party concerned can come to the court for further relief. As custody of the child is a major concern of the family court, therefore the court must have arrangements to hear the child exclusively in a fear-free environment. Moreover, the presence of the parties should be mandatory at the pre-trial and post-trial hearings as family matters require amicable settlement between the parties which is impossible without the presence of the parties.

Recently we have seen conflict of laws and transboundary elements in child custody and the right to visitation in our apex court. The proposed law is purely silent about the transboundary nature of this problem. Additionally, neither the current law nor the draft law has any provision relating to the execution of foreign judgment which creates a vacuum for a party having foreign judgment in this regard. Also, Bangladesh is not yet a state party to the Hauge Convention on the Civil Aspects of International Child Abduction, 1980. Hence, this is high time for Bangladesh to become a state party to the Hauge Abduction Convention and make our family court law more effective by ratification of the said convention. 

Again, the restitution of conjugal rights is a big topic for debate all over the world. In some view, this is ultra vires to the constitution and violation of personal liberty while other observes it perfect as marriage put some obligations on both husband and wife under all religions. The Bangladeshi apex court also promulgated divided decisions in this context. Few judgments declared it as violative and discriminatory while others treated it as a regular religious matter. However, the proposed Family Court law is totally silent in this regard and does not show any way of execution of this type of matter. Another loophole in the draft law is the absence of punishment for the institution of fake suit which is a common culture in many cases and fake suits take valuable time and effort of the court.

Additional major lacuna in the family court law is the lack of inherent power. Family court becomes unable to do justice by means of applying discretionary power depending on the sense of equity, justice and good conscience due to deficiency of inherent power not given in the law. One more drawback of the present law lies in the execution of the decree given by the court.

To recapitulate, it can be said that the existing FCO is utterly unsuccessful to achieve its aims which was enshrined 37 years back and regrettably the proposed law also does not show us any ray of hope. There are a lot of scopes to develop the family court law to make it truly effective for the litigants. Yet there is time to create a justice friendly family court in this country by doing necessary amendments to the new law.

Published on the Daily Asian Age as Op-ed on 21 July 2022 at page 7

Published on the Daily Shomoyer Alo as Sub-editorial on 19 July 2022 at page 4.

Published on the Daily Sun as Op-ed on 26 July 2022 at page 7.

Published on the Daily Alokito Bangladesh as Sub editorial on 29 July 2022 at page 6.

Published on the Law and Our Rights page of the daily Star on 5 August 2022 at page 10.

Published on the Weekly Sampratik Deshkal as Opinion on 18 August 2022 at page 3.

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

The Worldwide Outbreak of COVID-19 and Quarantine: Personal Liberty v Public Good

 

The outbreak of novel coronavirus (COVID-19) is having serious impacts in every spare of our life across the globe. This deadly communicable disease has deep implications on legal arena as well. In this time of massive spread of COVID-19, there are some interesting debate and legal questions regarding personal liberty, public good, freedom of assembly, freedom of religion, legal rights during quarantine, barring citizens from entering into motherland etcetera. It is noticeable that few individual liberties have already been curtailed temporarily all over the earth for public good. Likely Bangladesh has taken some measures including quarantine (both institutional and home quarantine) to prevent the wide spread of novel coronavirus (nCoV). Among many other initiatives, the Directorate General of Health Services also circulates notification for public interest about the enforcement of the Communicable Diseases (Prevention, Control and Eradication) Act, 2018 to confront this newly emerged pandemic. 

 

Albeit there are a number of legal issues, this article will remain confined in quarantine only as this is evolved as highly discussed topic at present in the country whereas many nonresident Bangladeshi citizens refused to go into quarantine who travelled from corona hotspot. Quarantine denotes a state or place of strict isolation for a well person or group of people who may have come in contact with contagious diseases to see if they become ill. Nevertheless, people who appear apparently healthy could spread this contagious pathogen without ever knowing they were carriers, which is why travelers who appear sound may still be quarantined, depending on where they are visiting from. 

 

Quarantine comes from the Italian words quaranta giorni which means 40 days. Since 14th century ships arriving in Venice from infected ports were required to rest at anchor for 40 days to guard coastal areas from plague epidemics. This custom later called quarantine. Since then, quarantines have often created a controversial vague area between public good versus personal liberty. 

 

However, in Bangladesh, according to section 5(1)(k) of the Communicable Diseases (Prevention, Control and Eradication) Act, 2018; the Directorate General of Health Services has the power to keep anybody in quarantine or isolation only if that person is suspiciously being affected with communicable disease. Nonetheless, the Act doesn’t suggest any way to determine the said suspicion. Consequently, the directorate has no authority to keep anybody in quarantine before getting medical report or visible symptoms of nCoV under the present law. Thus, presently there is no scope of keeping an apparently healthy person in quarantine even though s/he comes from a coronavirus hotspot as it may take up to 14 days or more to reveal the symptoms. So, the mentioned Act needs to be amended to quarantine every person comes from infected place whether fit or ill.

Moreover, COVID-19 is still not included in the list of communicable diseases provided by the Communicable Diseases (Prevention, Control and Eradication) Act, 2018. Hence, authority concerned must insert novel coronavirus in the list immediately and publish an official gazette notification in this effect to take action under this Act.

Nevertheless, if there is credible suspicion that somebody is affected by a contagious disease and disregard to remain in quarantine, s/he commits crime even though that is a non-cognizable, bailable and compoundable offence but punishment for which may extend to three months imprisonment or maximum fifty thousand taka fine or with both (S. 25(2) & 28). Under section 27 of the law, the provisions of the Code of Criminal Procedure (CrPC) have to follow to file complaint, investigate, try and appeal; as a result punishment through mobile court in few occasions was legally incompatible. However, the Act is silent about whether anybody can challenge the decision of quarantine. In that case, anyone could challenge a quarantine order in the High Court Division through a writ of habeas corpus.

In the massive wake of COVID-19 pandemic and in a densely populated country like Bangladesh; quarantine is crucial to protect people from being affected and control spread in gigantic scale. Because there is no freestanding constitutional right for normal life while a pandemic endangers many people’s lives. It is also well established principle of law that a person can be confined against his/her will if the individual presents a danger to himself/herself or others or for greater good, even if the person being confined has not committed any crime.

On the contrary, it tends to be controversial because it is akin to jail time, using the coercive power of the state to tell people that they have to stay confined, even if in their own homes. At the same time, the government cannot simply confine people for arbitrary reasons, or without providing an adequate explanation or without following due process of law. If anyone is quarantined, s/he does not necessarily have a right to be released from that quarantine, but that person does have a right to demand some sort of adjudicative process to determine whether the quarantine is justified. Furthermore, quarantined people have some basic legal rights like right to be informed, right to privacy, right to food, right to get health services, right to get livable accommodation in case of institutional quarantine etcetera.

Nevertheless, COVID-19 creates a critical situation for whole humankind while we all need to sacrifice and contribute from everybody’s end to confront it jointly but not with the cost of one’s legal rights and without maintaining due process of law. 

Published on the Daily Asian Age as Op-Ed on 3 April 2020 

Published on the Daily Observer as Op-Ed on 5 April 2020 

Published on the Daily Sun on 12 April 2020