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Legal challenge to surveillance laws withdrawn unexpectedly
A High Court public interest writ challenging the constitutionality of legal provisions which introduced widespread phone surveillance in the country was unexpectedly withdrawn a year after the court had issued an order asking the government to set out why the provisions should not be set aside.
The order, passed in May 2006 by Justice Md Awlas Ali and Justice Zinat Ara asked the government why the law ‘should not be declared to be ultra vires, void and without legal authority and … of no legal effect.’
However, four months after a state of emergency was declared, and before the government responded to the court order, the petition was withdrawn without any reason given.
Md Assaduzzaman, the lawyer for the petitioners told New Age that, ‘I went to court in April 2007 to withdrawal the writ petition after receiving instructions from my client not to continue with the case.’
Following the application, the court stated in its order that ‘The learned advocate for the petitioner submits that he has got instruction from his client not to proceed with the Rule. Accordingly the Rule is discharged for non-prosecution without any order as to costs.’
It is unusual for a petitioner to withdraw a writ petition following a positive order of this kind from the court, and prior to the government responding.
M Sanaulla, who is currently chief operating officer of ABC radio station, told New Age that he knew the petition had been withdrawn, but could not recall the reason for it.
‘I am still against any type of surveillance unless it is authorized by the court. There must be some monitoring on the system’ he said.
The other petitioner, Abu Sayeed Khan, a well known writer and activist on telecommunication issues, declined to speak to New Age on this matter.
Earlier, New Age has reported on how, following the 2006 amendment to the Telecommunications Act 2001, mobile phone operators paid for equipment that allowed the intelligence agencies to record thousands of mobile phone conversations at any one time, and had more recently paid for an update that would allow government access to e-mail and social media messages.
The paper also had reported that the mobile phone operators had been instructed to keep six months of SMS messages and other caller information which would be accessible to law enforcement agencies on request.
In 2005, during the term of the last BNP government, an ordinance was passed introducing new powers of surveillance into the Bangladesh Telecommunication Act 2001
The new sections state that ‘in the interest of the security of the State or public order’ the Home Affairs ministers ‘may authorize from time to time for a specified period’ any ‘officer of an intelligence agency , national security agency, investigation agency or law enforcement agency’ to ‘block, record or collect information relating to any message or conversation of any telecommunications service user.’
The original 2001 law defines ‘telecommunications service user’ to include those who use the internet, as well as a telephone.
The new provisions also allowed any information that was collected in this way to be ‘admissible in evidence in judicial proceedings’ and required that the telecommunication operators ‘direct any telecommunications service provider to extend cooperation in all respects for this purpose and the operator shall be bound to comply with such direction.’
The law and guidance resulted in the establishment of the government’s National Monitoring Centre which can record thousands of phone conversations simultaneously, as well as a system where mobile phone operators provide information to government agencies on caller related information and SMSs, both of which were reported by New Age earlier this week.
The writ petition lodged with the High Court in May 2006, had argued that both the legal amendment and the BTRC guideline were unconstitutional.
In relation to the change in the law, the petition stated that, ‘It is evident from a simple reading of the impugned statutory provisions that they are susceptible to extremely arbitrary and unjustifiable use and misuse … and are a completely illegal and ultra vires attempt at encroaching upon the right to privacy of communication guaranteed to citizens under Article 43 [of the constitution].’
Article 43 of the constitution states that, ‘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 … to the privacy of his correspondence and other means of communication.’
The petition claimed that, ‘The security of a citizens privacy against arbitrary intrusion by the police and other law enforcing agencies is basic to a free, ordered and democratic society. … There are no safeguards in place at all as to how the provisions … shall be applied without completely and unconstitutionally violating the fundamental rights of the citizens.’
It went onto argue that ‘It is only in grave public emergencies that the security of the state can be said to be compromised to the extent that requires such an inalienable freedom to be so drastically interfered with.