Wednesday, December 19, 2012

What offense did Amar Desh commit?

I have previously criticized Amar Desh's decision to publish the whole unedited Skype conversations between the former tribunal-1 chairman, Justice Nassim and an expatriate Bangladesh legal academic, Ziauddin Ahmed. It failed to solely focus on the material that was in the public interest (which was arguably justifiably published) and instead also publishing those parts which were private or otherwise potentially defamatory of others (which should not in any situation have been published).

One understands that unlike the Economist (which published a minimalist article), Amar Desh does not have the same level of (or indeed any?) independent legal advice to help it make such decisions; and that there is not the same regulated environment in Bangladesh as there is in England which has the Editors Code (i.e there is no clarity in the law about what can and cannot be published); and in addition there was some level of urgency to publish. Yet in my view this is no defense to the publication of unedited transcripts.

But the paper and the editor appear to be facing the prospect of criminal prosecution. What offense may have ben committed by the editor?

Amar Desh and its editor is now under criminal investigation, apparently - according to press reports - for the offense of 'sedition', following a complaint made on 13 December 2012 filed in the chief metropolitan magistrate's court by, unsurprisingly, a prosecutor to the war crimes trial, Shahidur Rahman. The newspaper, New Age, in its reports stated:
'Magistrate Hasibul Haque directed the Tejgaon police officer-in-charge to register the case as the first information report and take legal action against the accused. In keeping with the Code of Criminal Procedure Code, the police can arrest the accused charged with sedition without any warrant for arrest.'
What is the offense of sedition? Section 124 of the Penal Code states:
Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law shall be punished with imprisonment for life or any shorter term, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.

Explanation 1.-The expression "disaffection" includes disloyalty and all feelings of enmity.
Explanation 2.-Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

Explanation 3.-Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
Whilst the section itself seems to be very broad in its application, it needs to be read alongside the  'explanations' which does restrict it's application (somewhat) to ensure that ordinary political speech or writing are not included within the definition. Nonetheless it is still very broad in its application allowing words which 'excit[e] or attemp[..] to excite hatred, contempt or disaffection' against the government to be deemed sedition.

There is quite a lot of case law (according to Md Zahurul Islam's commentary, p.194-198 of 2010 edition: 'The Penal Code") on the meaning of this offense but there does not appear to be any decisive case as to whether the offense should be defined broadly or narrowly. 

That being said, it is difficult to see how the publication of these particular conversations between a judge and a lawyer could reasonably be deemed seditious - since they are not in any way directed at the government. Moreover, surely if they are seditious, would not both Justice Nassim and Ziauddin also need to be prosecuted since they are the ones that spoke the words?

(One should note that if this case were to proceed further, the prosecution would have to be specifically authorized by the government).

Information, Communication and Technology Act 2006
Prior to the magistrate passing an order, another lawyer had filed an application before the High Court seeking an order against Amar Desh, suggesting that action be taken against its editor for an offense under the ICT Act 2005. The Daily Star's report of that day states:
During the hearing yesterday, petitioner's lawyer Shafiuddin Ahmed told the bench that Mahmudur Rahman had committed grave criminal offence under sections 56 and 57 of the Information and Communication Technology Act, 2006.
Section 56 of the Act titled 'Punishment for hacking with computer system', states:
If any person
(a) with the intent to cause or knowing that he is likely to cause wrongful loss or damage to the public or any person, does any act that thereby destroys, deletes, or alters any information residing in a computer resource or diminishes it value or utility or affects it injuriously by any means;
(b) damage through illegal access to any such computer, computer network or any other electronic system which do not belong to him
then such activity shall be treated as hacking offense.
And section 57, titled 'Punishment for publishing fake, obscene or defaming information in electronic form:
(1) if any person deliberately publishes or transmits or causes to be published or transmitted in the website or in electronic form any material which is fake and obscene or its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read see or hear the matter contained or embodied in it or cause to deteriorate or creates possibility to deteriorate law and order, prejudice the image of the State or person or causes to hurt or may hurt religious belief or instigate against any person or organization then this activity of his will be regarded as an offense
(2) whoever commits offence under sub-section (1) of this section he shall be punishable with imprisonment for a term which may extend to ten years and which fine which may extend to Taka one crore
I think it is pretty safe to assume that the editor of Amar Desh was not actually involved in the hacking of the skypte conversations, so it is very difficult to see how he could have committed an offense under section 56.

And in relation to section 57, no-one has suggested that the material is 'fake' or 'obscene' or could 'tend to deprave/corrupt people' or may 'hurt religious belief' or could result in a 'deterioration in law and order'. Some of the material published could be said to 'prejudice the image' of some people but it does not appear that this section was enacted simply to further criminalize the offense of libel - which would be the effect if it was used in this way.

The ICT Act does not contain an offense dealing with the publication of illegally obtained information.

Press Council Act 1974 and Code
The Press Council Act 1974 establishes a press council whose main function is defined in section 11(1) as, 'to preserve the freedom of the Press and to maintain and improve the standard of newspapers and news agencies in Bangladesh.'

In furtherance of this main object, one of the Press Council's functions is set out in section 11(2)(b):
'To build up a code of conduct for newspapers and news agencies and journalists in accordance with high professional standard.'
Such a code has in fact been drafted. Para 16 states:
"It is the responsibility of the newspapers to publish news relating to case under trial and to publish the final judgment of the court to reveal the actual picture of issues relating to trial. But a journalist shall refrain from publishing such comment or opinion as is likely to influence an under-trial case, until the final verdict is announced." (emphasis added)
There is no public interest defense included here, nor is it clear what is the relationship between this code and the contempt of court laws in Bangladesh.

It would appear that the Amar Desh transcripts could well be considered a breach of this clause. However, breach of this Code has limited sanctions. Section 12 of the Act sets out the powers of the Council which only amounts to being able to 'warn, admonish, or censure' the newspaper/journalist and being able to force a paper to publish a report relating to any inquiry it undertakes:
(1) Where, on receipt of a complaint made to it or otherwise, the Council has reason to believe that a newspaper or news agency has offended against the standard of journalistic ethics or public taste or that an editor or a working journalist has committed any professional misconduct or a breach of the code of journalistic ethics, the Council may, after giving the newspaper or news agency, the editor or journalist concerned an opportunity of being heard, hold an inquiry in such manner as may be provided by regulations made under this Act, and if it is satisfied that it is necessary so to do, it may, for reasons to be recorded in writing, warn, admonish or censure the newspaper, the news agency, the editor or the journalist, as the case may be. 
(2) If the Council is of the opinion that it is necessary or expedient in the public interest so to do, it may require any newspaper to publish therein, in such manner as the Council thinks fit, any report relating to any inquiry under this section against a newspaper or news agency, an editor or a journalist working therein, including the name of such newspaper, news agency, editor or journalist. 
(3) Nothing in sub-section (1) shall be deemed to empower the Council to hold an inquiry into any matter in respect of which any proceeding is pending in a court of law. 
(4) The decision of the Council under sub-section (1) or sub-section (2), as the case may be, shall be final and shall not be questioned in any court of law.
A breach of the press code therefore may have taken place, but there is limited legal sanction available.

See Part 2: Interview with Mahmadur Rahman (coming)

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