Prime Minister Sheikh Hasina and Opposition Leader Khaleda Zia had a telephone conversation on October 26 to initiate dialogue to resolve the current political crisis over the polls time government. The audio record of the conversation was put on air by different news media, both print and electronic.
While some ruling party leaders held that the publication of the conversation was made in public interest, the opposition had expressed their discontent saying that the publication of the conversation by the government without the other party’s knowledge and consent was illegal and immoral.
Quite coincidentally, the whole thing happened at a time when the world media is abuzz with the news of alleged wiretapping of several European leaders including German Chancellor Angela Markel by the US National Security Agency (NSA).
At this juncture, ordinary people have become very apprehensive about the confidentiality of their telephone conversations. Many unanswered questions keep coming on their minds. Are their telephone conversations being recorded? Will it get published in the media tomorrow or the day after? If that happens, what is the legal protection one has to fight against any such an incident?
People start recalling the constitutional guarantee of privacy of correspondence. It is stipulated in Article 43 of our constitution. It says:
“Protection of home and correspondence: Every citizen shall have the right, subject to any reasonable restrictions imposed by law in the interests of the security of the State, public order, public morality or public health –
(a) To be secured in his home against entry, search and seizure; and to the privacy of his correspondence and other means of communication.”
Legally speaking, this right to privacy is not an absolute right; rather it is a qualified right. And, the qualifications attached to this right are so sweeping that the right becomes vulnerable.
Taking the advantage of the qualification provided in the constitutional provision, the then government in 2006 has made an amendment to the Telecommunication Act, 2001 drastically curtailing people’s right to privacy.
Section 71 of the original Telecommunication Act provides that: “A person commits an offence, if he intentionally listens to a telephone conversation between two other persons, and for such offence, he shall be liable to be sentenced to imprisonment for a term not exceeding six months or to a fine not exceeding Tk50,000 0 or to both.”
The 2006 amendment has added an extra clause to this provision which reads: “Provided that nothing in this section shall apply to any officers of intelligence agencies, national security agencies, investigating agencies and law-enforcing agencies who are authorized by the government under section 97A.”
A writ petition was moved in the High Court Division seeking invalidation the amendment on May 18, 2006. The HCD issued a rule on the government to explain within three weeks the legality of the provisions that entitled the law enforcers and intelligence agencies to tap the telephone conversations of any individual. A HCD Bench consisted of Justice M Awlad Ali and Justice Zinat Ara also directed the Government to explain why the Bangladesh Telecommunications (Amendment) Act, 2006 should not be declared unconstitutional and void. The hearing on the petition is pending and the government has not replied to the rules.
Now the question is, under what ground the PM – Leader of the Opposition’s telephone conversation was recorded and publicised? Was it a question of state security, public order, public morality or public health? It was an imaginary fifth ground called public interest which our constitution frames could not contemplate.
