imagesca6z9a2p.jpgThe following report came out in uttorshuri last year. As the key players in the behind the scene manipulation are getting exposed now, this report deserves a fresh look.

EKUSHEY TV – THE VISION

Mr. AS Mahmud, a pioneer entrepreneur in the field of media, realized that, in a country with a 60% literacy rate, impact of an audio-visual medium such as television would be enormous. In 1996, after having set up the immensely successful daily newspaper The Daily Star, he decided to venture into the electronic media. The potential of television in the private sector was not as well understood then as it is today.

He knew that the first terrestrial television station in the private sector had to be more than just television in order to be successful. It had to educate and entertain — both; it had to showcase the core values of our nationhood; it had to light hope and inspire pride in younger generations; it had to adopt a forward-thinking vision. Most importantly, it had to have a name that encapsulated all of the above. Hence the name, Ekushey TV [ETV henceforth]. Next he chose a motto that meant a lot for the younger generations: “Committed to Change,” or “Paribartane Angikaarbaddha”.

COLLABORATION WITH BBC WORLDWIDE
To make his dream a reality, AS Mahmud was aware from the get-go that he needed the best available technical know-how. Before the first lines were even drawn on his plan’s blue print, he approached BBC Worldwide. BBC is selective about placing their name next to any company’s for collaboration. Impressed by Mr. Mahmud’s vision and commitment, they agreed to become technical collaborators with ETV. Mr. Tony Troughton, Chief Engineer for BBC Worldwide, was deputed as the consultant for the project. With over thirty years of professional experience at the best television network in the world Tony Troughton visited Bangladesh several times, to understand local conditions in order to formulate an ideal proposal for the government on behalf of ETV. By then Mr Mahmud found an ally in Simon Dring, a good friend of his son Farhad Mahmud, both of whom later became co-managing directors of ETV. Simon Dring had just finished an assignment as a freelance producer and came to Bangladesh after twenty two years on invitation by the Liberation War Museum. Based on the ideals and values of AS Mahmud, both Simon and Farhad began laying the initial building blocks for the television station. Mr. Mahmud convinced Simon to work and settle in Bangladesh.

WHOSE FACILITIES DID ETV USE?

It was decided at the beginning that the new private terrestrial station must own all its facilities. Hence it is ironic that controversies arose later on — propaganda from some vested quarters — that ETV was using BTV facilities. We will prove it was false. The ETV project spent over 90 crores taka to procure their infrastructure and facilities. A project its size is considered large by Bangladeshi standards and was difficult for one private investor to shoulder alone. Another amazing feat of ETV many people may not be aware was the professional way the project raised its financing. Institutional investors and bankers that later became involved with the project knew very well the false nature of the other rumour stirred by the vested quarter. The rumour that alleged Shiekh Rehana or her family members owned ETV’s shares. Before becoming involved investors conducted rigorous due diligence, which dissolved such allegations.

It was a consortium of six banks led by Standard Chartered Grindlays Bank which provided a long-term project loan, 55% of the 90 crores taka. Two institutional investors including Citibank Investment Finance Corporation, the global venture capital arm of Citigroup, USA, took up 45% of the equity as direct foreign investment in the country.

ETV – WHOSE IDEOLOGICAL ENEMY?

ETV symbolized the values of a secular Bangladesh, the aspirations of the younger generation looking towards the future, a vision of equality and freedom. These were in head-on collision with the mores of the religious party, Jamaat.

Jamaat had regained prominence in the national political arena after years of languishing in oblivion. In addition, they had made some tactical progress in the last few years, chipping away at those core values upon which Bangladesh was founded. Predictably, ETV became its enemy even without any campaign against them. With their enviable reach into the hearts and minds of the general population and also just by being itself, ETV threatened to undo Jamaat’s recent political progress. ETV provided strong symbolisms, much needed to revitalize the weakened progressive sentiments. This backdrop is critical to keep in perspective to recognize the forces that ganged up against ETV, which led to manipulation of the court and justice system and caused ETV’s shutdown.

PUBLIC INTEREST LITIGATION CASE – A FARCE BY FAR

With several television channels in Bangladesh being granted ‘licenses’ recently, it might be a good time to investigate whether the ‘process’ of granting these ‘licenses’ was indeed fully transparent and whether everyone’s ‘papers’ were in order. After all, ETV was shut down through a “public interest litigation case,” allegedly due to its lacking of both.

Rather amusingly, the statement ‘immensely popular channel ETV was struck down by a public interest litigation case’ is a contradiction in terms. Different categories of cases reach the court for hearing, e.g., criminal, public prosecution (where the government files the case), civil, commercial, and the like. The case against ETV fit none of these. It was a ‘public interest litigation case’, but with some aberrant characteristics. Ordinarily these cases are filed by citizens representing the public, seeking to protect public interest. Let us identify the people that filed the case against ETV. In addition, let’s find out what public interest they indeed sought to protect.

How many of us are aware that the case against ETV was filed by two card-holding members of Jamaat? They are Dr. Chowdhury Mahmood Hassan of the Department of Pharmacy and Dr. Mohammad Abdur Rob of the Department of Geography. There was a third name: Mr. Gias Kamal Chowdhury, of Bangladesh Federal Union of Journalists. Their lawyer was Advocate Abdur Razzaq, who currently serves as Jamaat’s Joint Secretary of International Relations. Advocate Razzaq worked pro bono (unpaid). Jamaat was the party that collaborated with Pakistani army in 1971, causing a brutal and bloody genocide while resisting the independence and sovereignty of our country. Indeed it is little surprise that they will work against any progressive element of the country.

Interestingly, known members of a particular political party representing vested interest cannot represent the interest of the public in general. Yet the court chose to overlook it. The court also overlooked one of the primary prerequisites to accept a public-interest litigation case. Before accepting such a case, the court must ask the applicants if they had sought other recourse for grievance, such as, request relevant authorities (the government) to address their concern. In this case, the court did not do that. Instead, it accepted a ‘public interest litigation case’ filed by card carrying members of a political party. One may ask whether the court followed legal process and, if not, one can ask why it didn’t. Most likely, the only reason the court did not follow usual legal proceedings was because it was a politically-motivated case, camouflaged as a ‘public interest litigation’. The Judge who accepted the original case was none other than the now-infamous and controversial M. A. Aziz, the disgraced and partisan Chief Election Commissioner. More preposterous was that this injustice was pulled off in the name of the public, while the public was not given the option to protest.

Please see the article by Justice Golam Mohammad Rabbani published in Prothom Alo on 7/9/2002 (click on the link or copy the link on a separate page):

DUBIOUS ROLE OF THE NEW GOVERNMENT

Another important fact most people may not be aware of was the change in government role as the co-defendant of the case as soon as BNP-Jamaat came to power in 2001, which was pivotal in deciding its outcome. Instead of defending the case along with ETV, the government became passive and at worst counter-active.

During the tenure of the neutral Caretaker Government (before the election of 2001), its Advisor in charge of the Ministry, after reviewing all relevant papers, requested the Attorney General to dispel the petitioners’ allegation. On the Advisor’s instruction, the then Attorney General, Mahmud Ali, argued against the petitioners and also submitted his arguments in writing to the court, challenging every allegation. The conclusion of that submission stated,

“ All the formalities to establish a private TV channel was maintained. The tender formalities were done legally. All the matters were thoroughly discussed in the several interministrial meeting with Ministry of Finance, Ministry of Home Affairs,Ministry of Defence, Ministry of Post and Telecommunication, Ministry of Law, Justice and Parliamentary Affairs, and NBR. The Ministry of Home Affairs also gave the Security Clearance referring to clearance of K.P.I.D.C. The entire matter was then submitted to the then Honourable Prime Minister through a self contained summary of approval. So all procedures and the laws were maintained in allowing a private TV channel in this country. The License Agreement was lawfully and validly executed between the parties and it was executed for the interest of the Public”.

This took place not during the tenure of Awami League, but during that of a neutral caretaker government.
Here is a copy of the Attorney General’s official submission (please scroll down to the bottom):

Soon after assuming power, the BNP-Jamaat government dispatched an instruction to the new Attorney General, to not offer any arguments in the court. It did not stop there, but it also executed a policy of overt non-cooperation with the court, stooping to insert misleading information after the court had summoned the files, which might have been illegal. A key role was played here by the still serving Deputy Attorney General Adilur Rahman Khan. The government’s dubious role impelled the judge to attach the following statement to the judgment he handed down on the case,

“We passed two orders to produce the file but the file was not produced, even there is no explanation to what happened to that file. The file was withheld and the file produced before us contains only correspondence portion and not any note sheet containing any minutes or deliberations of the Committee”. ……… “In spite of our repeated orders, the file was not produced by the relevant respondents with whom those were lying. We are very much shocked that the file was withheld and as such constrained to apply the presumption under section 114(g) of the Evidence Act”.

THE ALLEGATIONS

In the case of ETV, the pot-pourri of allegations can be broadly grouped under four main categories. We will address each of these separately.

1. Lack of transparency in granting of the license, Ekushey was unfairly selected

2. State property was ‘given away’ incurring loss to the government

3. The license was issued in the name of Mr AS Mahmud

4. The paper work was faulty, insufficient documents

ALLEGATION : LACK OF TRANSPARENCY IN GRANTING LICENSE

The license of ETV was granted through a tender process. If the blame against ETV was about transparency in the licensing process, or the alleged lack thereof, it is interesting to note that calling a tender to grant such license is an additional step for transparency. The government has often entertained unsolicited offers — granting licenses as it sees fit, instead of open tender/bidding, as we have noted in cases of granting licenses by past and present governments for private airlines, mobile phone operators and indeed for television, before and after ETV.

If the blame against ETV was about Government’s wrongdoing in selection of the successful participant, it is interesting that none of the other 16 companies participating in that tender has to-date filed a letter of complaint, let alone a case against ETV, claiming unfair selection. They would have been the most aggrieved ones if indeed the selection process was unfair.

As for eligibility, no other contenders could claim technical collaboration from a world renowned television network, such as BBC Worldwide. The cover letter that BBC presented along with the tender documents of ETV stated, “This is to confirm the participation of BBC Worldwide in the preparation of the technical specifications for the tender document being presented by Ekushey Television for consideration by the Ministry.”

Here is the letter from BBC’s Chief Engineer Tony Troughton to the Secretary, Ministry of Information:

Needless to mention, ETV had proved its capability beyond the slightest doubt during the three years (April, 1999 – August 2002) of its broadcast, which was the tender’s sole purpose. Its goal was not to bestow financial benefits upon the winning bidder. Rather, it was simply to ensure that the winner could do the job, once they were awarded the license.

ALLEGATION: STATE PROPERTY GIVEN AWAY

A terrestrial ‘channel’ can not be the ‘property’ of Bangladesh Govt.. A terrestrial channel is nothing but a range of frequencies. As far as the television network and its facilities are concerned, ETV had paid for all its own facilities, eg.transmitters, studios, etc.. When frequencies (i.e., channels) were allocated (there were six channels allocated, a different one for each region so as to avoid interference with the 9 separate channels BTV was using), it was suggested by the then government that an unused channel (’frequency’) for Dhaka which was previously used by BTV be used by ETV as an optimal solution to avoid interference. This was BTV’s so called ’second channel’ (known as Choi number channel) that was lying unused since the early 80s and still is after the departure of ETV. Later in an effective campaign of misinformation launched by Jamaat/BNP propagandists, it was said that ETV became the “owner” of this channel depriving the government and this channel was given away.

Smart and intelligent people never asked (although the facts were there in the government books) why ETV invested 100 crore taka for importing transmitters for broadcasts (six in total), setting up ultra modern studios (that people by Karwan Bazaar watched every day) if they were to use ‘govt property’. They never asked what exactly is this ‘channel’ that was ‘given away’! They never asked why if ETV was using government facilities, armed police had to be sent in to seize its equipments in order to stop its broadcast.

Please see the news item on ETV’s equipmet that the government did not return:

“The Ekushey Television (ETV) is yet to get back its transmission equipment, as the government took no step even after the verdict of the court.
On a writ petition filed by the ETV for getting back the transmission equipment and licence, a division bench of the High Court gave judgement on August 20 directing the Bangladesh Telecommunication Regulatory Commission (BTRC) to decide on the application of ETV for licence and the government to return the seized equipment by 30 days.”

The frequency/channel was never ‘given away’, ETV paid three crore taka per year for that. Taka 3 crore was only the license and frequency fees. On top of it, they paid VAT of Tk. 25 crore every year for which ETV received a letter of appreciation from NBR (National Board of Revenue), interestingly during the time of BNP rule. Few people ever tried to find out how much NTV pays the exchequer. If there was some problem with the fee the government could have simply increased it.

If there was any problem with the frequency/channel for Dhaka they could have asked ETV to change it. Knowing very well how to resolve these issues, they did no such thing. Only because that would have meant that ETV could continue to project a secular and progressive view of the world to 120 million people.

Ignorance of the people (both educated and not so educated) is an important asset to the ideologues of Jamaat to capture and retain power. It has always worked and it is working even now. Misinformation is an effective tool in any propaganda.WMD was used to invade Iraq. It didn’t mater later that no WMD was found. The job was done. It was effective in ETV’s case too.

ALLEGATION: LICENSE ISSUED TO MR AS MAHMUD, NOT ETV LTD.

This particular allegation was deliberately designed to confuse the public. When ETV participated in the tender it was not registered as a private limited company for the obvious reason that the outcome of whether or not it will be successful in the bid cannot be known in advance. ETV participated in the bid as the sole proprietorship concern of A S Mahmud, and the cover letter stated that if successful in the bid, a private limited company will be formed. Under the law, Ekushey Television and Ekushey Television Limited are two separate legal entities. Also, under the law, a sole proprietorship is synonymous with the person. Both have the same TIN (Tax Information Number) and other legal status required to be submitted in the tender document. As the participant in the tender was Ekushey Television and not Ekushey Television Limited, the Licensing Agreement could only be signed with A. S. Mahmud, the sole proprietor of Ekushey Television. A sole proprietorship does not have a separate legal entity like that of a limited company.

Addressing the facts, the High Court, later, in its judgement stated the following:
“We have noticed that tender papers were submitted by Mr. A. S. Mahmud on behalf of M/S ETV because at that time ETV was not a registered company. As the proposal was submitted by Mr. A. S. Mahmud as proprietor of the firm, signing of that agreement with Mr. A. S. Mahmud can not be considered as illegal”.

ALLEGATION: FAULTY PAPERWORK, INSUFFICIENT DOCUMENT

When Ekushey Television was granted license in 1999, there was no Act in Bangladesh governing television operation. The license was based on Telegraph Act of 1885 and Wireless and Telegraphy Act of 1933 which came closest to television operation. These Acts, inherited from the British era, were subsequently amended in India to incorporate television. In Bangladesh, a new Act to govern television was created only in 2001, as the Bangladesh Telecommunication Act, which went on to form the Bangladesh Telecommunication Regulatory Commission (BTRC). Please note that this new Act was formed after ETV was licensed in 1999. However, the allegation against ETV simply stated, and quite cleverly, that the Acts of 1885 and 1933 were not the appropriate ones for granting of television license, without stating which Act is. The Court decided that the 2001 Act was the most appropriate one.

How ETV could be granted a license under an Act that came into reality in 2001, long after ETV was licensed to operate in 1999 is beyond comprehension. The court found that the license based on the earlier Acts was not appropriate and that it should apply for a fresh license to BTRC under the new Bangladesh Telecommunication Act of 2001. That is why the Court in its final judgement stated:

“The counsel for Ekushey TV Ltd. has submitted that it has filed an application with regard to TV license with Bangladesh Telecommunication Regulatory Commission under the Bangladesh Telecommunication Act 2001. Our Judgement will have no bearing in considering the application by Ekushey for license by the said Commission which is free to decide in accordance with law.”

As soon as BNP assumed power, the government side carried out a policy of overt non-cooperation with the court, even stooping to inserting misleading information after the files were called in by the court, which can be deemed illegal. It was this dubious role that compelled the judge to state the following in the judgement handed down by him in the case,

“We passed two orders to produce the file but the file was not produced, even there is no explanation to what happened to that file. The file was withheld and the file produced before us contains only correspondence portion and not any note sheet containing any minutes or deliberations of the Committee”…. “In spite of our repeated orders, the file was not produced by the relevant respondents with whom those were lying. We are very much shocked that the file was withheld and as such constrained to apply the presumption under section 114(g) of the Evidence Act”.

Why should ETV be penalized if it arrives somewhat before its times, before the archaic laws in Bangladesh are amended ? Does it mean that we should hold back in adopting new technology and entering the modern times simply because we are too slow in changing our archaic laws ? And why should ETV be penalized because of the non-cooperation of the government in power ? A public inquiry into the matter should take to task those people who had deliberately misled the people of Bangladesh.

ETV NOT ALLOWED TO APPEAL TO SUPREME COURT

Why was ETV penalized because of non-cooperation from the government in power? Had ETV been allowed to argue its case by way of an appeal in the Supreme Court, this question likely could have been addressed. But something quite strange happened, prompting well-known Barrister Rafiqul Haque to say , “In my forty years of legal practice I have not seen such a precedence.” ETV was not allowed to appeal its case.

It may still be unknown to many, but ETV did not lose its case. The Supreme Court simply did not grant it an Appeal hearing. Only in rare cases, the Leave to Appeal has not been granted. Generally, it is denied if the case is deemed insignificant, so the court’s time is saved. It could also be due to strong arguments, raised by the petitioners against the hearing. Neither was true for ETV: all parties, including the petitioners (for their own reasons, because the High Court had rejected several of their allegations), argued in favour of granting the Leave to Appeal.

Regardless, the Appellate Division of the Supreme Court rejected an appeal hearing. But why? It seems reasonable to surmise that, since granting of the hearing would have meant a stay on the High Court judgement, paving the way for ETV to continue broadcasting during the Appeal’s process which could be years. The fastest way to ensure its closure was not to accept the appeal in the Supreme Court.

So, this is what the ruling BNP government had wanted. One of the most influential judges–and the one who drafted the final judgement against ETV, was none other than controversial Justice K M Hasan, a founding member of BNP.

CLOSURE OF ETV

The popular TV channel ETV was closed down in the middle of broadcast. All its equipments had been seized by the government. Such a step was unprecedented. The ex Prime Minister called a special meeting on why the transmission was still going on, few hours after the verdict, even though the High Court never ordered to shut it down. The copy of the verdict was not even received by any of the parties. Yet, Police surrounded the ETV building and forced a shut off. There were plenty of writings in the paper mostly requesting the government to come to a reasonable compromise by fining the company if it did anything wrong. Although a particular government leaning weekly magazine Jai Jai Din, which has since been blessed by getting huge funding for their publications and media complex, along with government ministers harped on shutting it off in the interest of “rule of law”. They opined if ETV is allowed to operate, people will be encouraged to break the law even more.

However, since then, the same ministers have gotten new licenses to operate TV channels. Was proper tender procedure followed? Is that venerable weekly asking the question? Through this article we have tried to establish that the ruling against ETV, the most popular TV channel in Bangladesh’s history, was unjust and public interest was harmed by shutting it off. Over the coming days we will explore what happened post ETV closure.