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     Volume 4 Issue 76 | December 23, 2005 |

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Cover Story

Is Teletapping the Answer?

On December 5, 2005, an amendment was brought to the Bangladesh Telecommunications Act 2001, bringing an end to the citizen's right to privacy. Under the new ordinance, phones can be tapped with the permission of the chief executive of the home ministry. It snubs the concept of personal communication. As the promulgation of the new ordinance not only condones but also provides legal cover to eavesdropping on phone conversations by law enforcement agencies, what it demolishes is the very ethos of a democratic society that hinges on freedom of speech as well as communication. Legalising interception of all telephone calls may open a floodgate, leading to all sorts of curtailment of democratic rights.

According to newspaper reports, the mobile phone interceptor would be procured and installed at the RAB Headquarters. The device will be able to store 1,000 target-based phone numbers and it is capable of recording conversations of 120 cellular phones at a time. The land phone interceptor that is in the pipeline is capable of covering 15 telephone exchanges and may tape the conversations of 100 telephones simultaneously. The device will also be capable of intercepting calls from abroad. Many envisage a portentous future akin to the totalitarian regime depicted in that frightening novel by George Orwell, where all concepts of privacy and freedom have been effaced to make way for the governing class to hold sway over the ordinary citizen.

A few days before the enactment of the law, The Daily Observer in an Editorial said that "only an autocratic government can contemplate this, as it cuts at the very roots of

The teletapping act cuts at the very root of people's right to privacy

democracy". Citing the example of the Homeland Security Act promulgated by the US government in the wake of the terrorist attack on the World Trade Centre it has pointed out to the US government which has failed in its attempt to include clauses that breach an individual's basic privacy, because the very idea has sent a wave of shock through the populace. However, there is a provision for the individual's privacy to be breached only in circumstances that call for such extreme measures. In the US, the federal law enforcement officials may tap telephone lines only after showing "probable cause" of unlawful activity and obtaining a court order.

Dr Zahir, a lawyer and a constitution expert, says that in America teletapping is subject to the approval of the court. He also feels that when the present spate of suicide bomb attacks has put Bangladesh in a volatile position the need for extreme measures that may compromise individual's right is bound to be in the offing. "Extreme situations call for extreme measures," he says. Though he approves of such measures, he also has a cautionary note for its improper use.

If teletapping is to be used as a means to gather evidence against a suspected criminal, Zahir feels that, "We should have a guideline to ensure that it is being done only in the public interest". He is in favour of teletapping only if it is applied subject to the approval of the court and in specific cases. His verdict is specific: "There should be a clear guideline as to when it will be applied."

Renowned jurist Shahdeen Malik echoes Zahir's opinion. Teletapping can be permissible if it is done with court's permission. "Individual rights can not be denied on the plea of ensuring

Living in fear of being heard: The teletapping act may affect personal communication

collective good," Malik observes. "Because, it is then possible to curb many other fundamental rights on the pretext of public good," he argues. Like the right to hold meetings or bring out a procession can also be scrapped saying that these may come under bomb attacks. "So, if you allow them to get away with such a law that curbs individual rights it may be followed by many more such laws," he points out.

Since interception of telephone conversation goes against the very ethos of a free and democratic society, experts feel that the government should take extreme care in its exercise. While some endorse its limited usage, many fear that the way the government has touted it as one of the important means to clamp down on the terrorists there is a fair chance of things getting out of hand.

Mozaffar Ahmed, an economist and a trustee member of the Transparency International, feels that the most dreadful facet of the law that legalises teletapping is that it can be used against the political opposition to curb their activities. However he too feels that in the context of the rise of religious militancy there is a need for extreme measures. "What is needed is 'rules of business' to make sure that the law is not being misused. According to the present law the power lies in the hand of the chief executive of the home ministry. It should lie in the hand of a people's representative, a minister should be the key person who would use the new law with discretion," he says. He also hastens to add that with the promulgation of this law civil liberty will be affected. "In a properly functioning democracy you can never really have such laws," he points out. However he also feels that in the present political maelstrom, to tackle the rising militancy, this new law is needed. To make sure that this law does not become a means to monopolise the political chessboard, he proposes two things: one is "rules of business" and the other is "parliamentary accountability".

"There should be transparency in the whole process. Every case or development must be reported to the parliamentary committee, which would be composed of the parliamentarians belonging both to the incumbent party and the opposition," Ahmed points out.

Former Inspector general of Police, Nurul Huda, also attaches great importance to the issue of authorisation.

He is of the opinion that the onus lies on the authorising party. It is they who permit the law enforcement agencies to tap someone's phones, it is their discretion that may prevent the law being misused by people with political and other vested ends in view.

The act of eavesdropping may provide the intelligence agency personnel the opportunity to blackmail innocent callers

Although teletapping undermines peoples' right to privacy, one of the basic democratic rights, its use in the societies that are often seen as the model of democracy is not unheard of. Teletapping is legal in countries like Australia, Spain and even in the UK. "As a means of ensnaring the criminals and preventing criminal acts such interceptions have yielded good results in many countries," Huda points out. "The crucial issue here is who is authorising to tap the phones," he observes. In Spain the police or intelligence agencies have to first obtain a judge's permission before they can tap someone's phone. However, Huda is open to other options as far as the authorising party is concerned. "If you want to give the authorising power to someone in the police it should only be someone who holds the office of an SP or any other superior post," he observes.

The political element of undermining and suppressing of the opposition is something that hangs like a murky shadow over the promulgation of the present law. In the US political

Barrister Moudud Ahmed, the law minister

history Watergate still remains a black patch of a misadventure that illustrates how low an incumbent government can stoop to pigeonhole the plans of the political opposition. Nixon sent five men to break and wiretap Democratic party office on June 17, 1972; they were caught red-handed. Watergate illuminates a darker aspect of the democratic polity; it brings to the fore the fact that in desperation to cling to power a government may go to such length as to defy the laws of the land. In Bangladesh, where the polarity in the political make up has reached such an extreme state that it has pushed the two major oppositions so far apart that any hope of reaching consensus on major national issues is now deemed impossible. With rivalry between Bangladesh Nationalist Party and the opposition at its peak, how the act of taletapping can be left out of the reach of the politicians trying to use it as a tool to undermine the opposition is a question that boggles the mind.

It is no wonder that the law has provoked a sharp reaction from the opposition parties who believe the government will harass their political opponents taking advantage of the law. "There cannot be such a law in a civilised country. In an independent, democratic country none should have the right to breach one's privacy, it goes against all sorts of

Dr Zahir

basic and fundamental individual rights," observes GM Kader, a Jatiya Party (Ershad) lawmaker.

Kader believes the law will create another opportunity for the police to indulge in corrupt practices, who may blackmail innocent people in the pretext of cleansing the country of its enemies. It is always possible to tap someone's conversation and then use part of it, out of context, as evidence, say, in the court in a sedition case. The law will make it difficult particularly for the politicians to talk over phones at ease; the fear that one's phone might be tapped will always be there. "In fact many have stopped talking frankly over telephone," Kader says, quoting people who phone him and say,"Kader Bhai, I have something to discuss with you, but not on the phone. When can I meet you?"

It is generally believed that the practice of eavesdropping has been going on for a long time in Bangladesh as in many other countries. So, what has made the government go for enacting such a law instead of going on with tapping covertly? "It is not evident from the part of the law that has been made public; it will be clear after it gets published in the gazette. The only rationale can be that it will now allow the police to present their findings as evidence in the court of

law," Malik believes.

Within four to five days into promulgation of the teletapping act Law Minister Moudud Ahmed divulged to the press that his ministry had already drafted yet another law and sent it to the Home Ministry and hoped that it would be passed in the coming session of the parliament. And of course all these laws are being enacted to take on the militants who had unleashed a reign of terror in the country over the last several months. It looks

Shahdeen Malik

like that the absence of appropriate laws had been the real stumbling blocks for the government in the way of catching and punishing the militants, at least that is what Moudud would like us to believe. But many believe it is not the absence or inadequacy of laws but the lack of willingness on the part of the government that is to be blamed.

There are certainly concrete reasons to suspect the government's honesty as far as its attempt to nab the militants are concerned. The government or at least a part of it -- a minister, a state minister, a deputy minister and several MPs from the greater Rajshahi region -- have all along supported and backed the JMB or JMJB since their emergence last year and even after the militant outfit launched about half-a-dozen bomb attacks, including suicide bomb attacks that killed a few dozen people all over the country. On November 27 a JMB leader Mahtab Ali Khamaru was arrested by the Rab and within several hours released following a deputy minister's intervention. Ataur Rahman Sunny and Abdul Awal, two of the top JMB leaders were arrested along with 19 JMB operatives by the police following a fierce gun battle in Joypurhat's Khetlal upazila on August 14 2003. Two Jamaat MPs lobbied with the local administration to get them released saying they are "good boys". A BNP MP from Bagura, Rezaul Bari Dina and the District Commissioner, Abdul Monaf Patwari (at present joint secretary to the Home Ministry) were also annoyed regarding their arrests and directed the police not to harass them anymore. Later both Sunny and Awal came out of the police custody upon receiving bail from the High Court the following year in 2004.

If the early actions of the government are considered, in combating militancy the BNP-led coalition showed their weaknesses. They were never ill-equipped to fight militancy either in terms of laws or logistics. If there were any lacking it was in their political will. The recent spate of arrests of the JMB top brass illustrates that firmness pays dividend. While other options are yet to be fully explored, how justified it is to legalise teletapping? Since there is no indication that the government would back down from considering it an important option, there must be a mechanism to check its abuse.

The enactment of the new law goes against the very ethos of democracy and individual's rights, but the government feels that it would help curb militancy

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