Gulam Rabbani :
Phone tapping and recording of the conversations and spreading them through social media are nothing new in the country. But these incidents are undermining people’s right to privacy which is a fundamental right of a citizen recognized by the Constitution.
There have been many such incidents recently. But the government has not taken any action against these illegal acts. Earlier, the High Court had expressed concern over the matter and observed that the practice of leaking audio-video recordings of the conversations through social media should be stopped.
The recent leak of phone conversations between two police officers has sparked discussions across the country. The officers were suspended later.
After a woman journalist was arrested on May 17 in a case filed under the Official Secrets Act, a female colleague of the journalist spoke to her father on the phone over the issue. That conversation also was leaked and spread widely through social media.
The same thing happened in the case of Hefazat-e-Islam leader Mamunul Haque’s phone conversation with his wife in last April.
Many important persons also are the victims of it with some controversial people. The common and innocent people are not safe from it. This is a punishable offense under the country’s telecommunication act. There is a provision of maximum two years imprisonment and a fine of Tk 5 crore for a crime for this type of offence.
But it is rare that anyone was punished for this type of crime. Not only the phone conversations but also the private audio-video of many citizens have been
leaking with the advancement of telecommunication technology. In a recent judgment the High Court bench of Justice Md Shawkat Hossain, Justice Md Ruhul Quddus and Justice ASM Abdul Mobin observed that it may not be out of place to point out that the practice of collection of call list/audio discussion from public/private phone companies without any formal requisition and formal seizure, and also behind the knowledge of the subscriber must be stopped. It is our common experience that nowadays private communications between the citizens including their audios/videos are often leaked and published in social media for different purposes.
The court also observed that we must not forget that the citizens’ right to privacy in correspondence and other means of communication is guaranteed under article 43 of the Constitution which cannot be easily violated at the instance of any interested quarter. Bangladesh Telecommunication Regulatory Commission and the phone companies operating in Bangladesh have a great responsibility towards proper compliance of the Constitutional mandate of maintaining privacy in communication.
They cannot provide any information relating to communication of their subscribers and the citizens of the Country, unless it is permissible in law matched with the Constitution. So, when the Investigating Officers in relation to particular investigation/inquiry require any call lists or information relating the one’s communication, they must make a formal request to the concerned authority of the respective company/office stating the reason why it is necessary for that investigation/inquiry, not in a roving and fishing manner.
Only in that case the phone companies have obligation to supply the call list or information within the knowledge of the subscriber. Otherwise the supplied documents would lose its evidentiary value and the supplying person/authority would also be liable for aiding violation of one’s fundamental right guaranteed under the Constitution.
Wire-tapping and recording of the telephone conversations were forbidden in the country till 2006. But during the amendment of the Telecommunication Act in 2006 a clause was included in the act that empowered the intelligence agencies, investigative agencies and law enforcement agencies to wire-tap and record the telephone conversations in the interests of state security.
The amendment created a controversy then among the citizens of the country and the rights organizations strongly opposed the amendment. New Age Editor Nurul Kabir filed a writ petition challenging the amendment, but the government was silent over the writ.
Terming the phone tapping as “a serious invasion of an individual’s privacy” the Indian Supreme Court said in a judgment that the Home Ministry cannot give permission for phone tapping as their wish. The Home Ministry must show the proper and strong reason for each of its orders in this regard.
Barrister Shanjid Siddique, a Supreme Court lawyer, said, “The allegation of recording of voice calls of citizens by law enforcing agencies, if taken to be true, is a severe infringement of fundamental right enshrined in Article 43(b) of the Constitution. The article confers right of privacy to citizens of their correspondence and communication.”
“In recent times we have seen that audio clip of telephone conversations are leaked in social media. This is not only against an individual’s right of privacy, but this can constitute an offence under the Digital Security Act, 2018. While the investigation agencies often relies on these recordings to implicate people with criminal charges, but it should not be admissible as evidence in court. In many jurisdictions, for example in the UK, the court has the discretion to exclude such evidence which has been unfairly obtained,” added the lawyer.
