The decision to change the name of the much discussed, controversial and criticised Digital Security Act, has been dubbed by some media outlets on Monday as an abolition of the act. However, Law Minister Anisul Huq has clearly enunciated. “We are not abolishing this law. We are changing the law and making a new law under the name of Cyber Security Act. The new law will have almost all the provisions of the Digital Security Act.” So when discussing this issue, we must keep in mind that the sword that this law has had hanging over the heads of thousands and thousands of people for the past 4 years and 10 months, is not being removed.
From the experience of the victims of this sword who have lost their lives and livelihoods, it is quite logical to state that this announcement of the government evokes no hope. Quite to the contrary, it gives rise to many more questions and concerns.
I differ with those who seek some hope in the government’s announcement. The ICT act of 2003 was amended in 2013 and exacerbated the horror of Section 57. And as an alternative to that law, the Digital Security Act (DSA) was enacted in 2018. It may be recalled that there had been talk in 2018 of all sorts of changes to the sections in the draft law, but ultimately the parliament only took the police’s objections into cognizance. The commitment made by the ministers to the journalists and editors was forgotten.
There is another reason that the proposed law or amendment does not give rise to hope. This so-called amendment holds nothing for those who have already been convicted under this law and are behind bars. Those who have been convicted under this law and are languishing in jail without any trial per se, have no reason to be pleased. I see no reason for them to even ‘cautiously hope’ whatsoever.
The law minister said, “The sections where there is scope for this (DSA) to be abused, gave been amended.” Human rights activists, journalists and researchers from back in 2018 have said that the nature of this law is such that its very use amounts to ‘abuse’. In my capacity of heading an ongoing research project on this law for over the past three years on behalf of the Centre for Governance Studies (CGS), I can say that the DSA has been used the most to snatch away the right of expression in the country and to create an environment of fear.
The government has not given any clear explanation as to why it wants to ‘amend’ this law and make a new law. Those within the country and outside too, including human rights organisations, who want this law to be abolished, are calling for this abolition because this law goes against the fundamental rights of the citizens. The UN high commissioner for human rights Volker Turk in April made a call to the government of Bangladesh to immediately suspend the application of the Digital Security Act. There is no reason to think that the government arrived at this decision taking all this into cognizance. After all, whatever has been revealed so far about the proposed law, does not reflect even an iota of the UN’s recommendations.
As there is no explanation about why the government is changing this law, these questions are quite logical: “The law is bad, that is why it is being abolished, or is it because the law is failing to ensure justice because it has many inconsistencies? Or is it being changed in face of criticism?” As the government has not replied to these questions, we can assume it is because of the overall situation. But I will come to this later. Before that, let us focus on certain factors.
When the law minister declared a new law in place of the existing one, the summary of his deliberations was that the sentences in some sections will be lightened, some sections will be bailable. Sections 21, 28, 29 and 31 of the DSA were given as examples. But the degree of the sentences in these sections of the DSA was not the issue. So there is all reason to believe that this initiative aims at simply diverting attention away from the actual issues.
The entire contents of this proposed law of the government has not been revealed. But from reports in the news media it is learnt that Section 43 of the DDA will remain intact. This section gives the police the authority to make arrests without any want. The instances of the application of this law reveal that innocent people have been harassed by such use of authority, that this has been used for political purposes. While the police carries all this out under the cover of the law, this cannot take place without the knowledge of the top level of the government.
It is important to probe into why the government is so eager to change the name of DSA and present a law in a fresh façade
It is being said that journalists will be spared in the provisions kept to deal with defamation in the new law. Rather than being sent to jail, the new law will impose fines on them. In December 2021, law minister Anisul Huq had said that direct cases would not be filed against journalists under the DSA, they would not be detained immediately. The constitution gives all citizens equal rights, so it is questionable how the law minster made such a sweeping statement. After his meeting on 25 July with the EU special representative for human rights Eamon Gilmore, the Anisul Huq told the media, “The journalists will be pleased with the amendments in the DSA.” It seems from such words that the government aims at pleasing the media separately.
This propensity to please certain groups goes against the rule of law. The Public Service Act 2018 also has provisions to please the government officials. Section 41 of this law stipulates that, “approval from the government or employing agency is a must for arresting public servants before a court accepts the charges related to their official duties.” The amendment to this was passed in the parliament on 4 July this year, providing in effect, indemnity to the public servants of autonomous organisation, state institutions and local government organisations as well. So these attempts to ‘please’ journalists give rise to concern.
When the DSA was enacted in 2018, there were all sorts of recommendations from various quarters. The government claimed that there had been discussions with the stakeholders, that their views were taken into consideration. But we are well aware of the end result. And in the case of this new law, stakeholders were not even consulted. Yet the law minister expects that "this law will be passed’ in the national parliament session this September. What does it indicate when a law is being passed in such a hurry even though the citizens and the stakeholders haven’t even seen its draft?
It is important to probe into why the government is so eager to change the name of DSA and present a law in a fresh façade. The government is under pressure from the streets and from foreign quarters regarding the forthcoming election. The government is eager at the moment to show the foreigners that they are taking the objections of the foreign quarters into consideration regarding repressive laws. The government perhaps hopes this will lessen pressure from outside and the focus of discussions may veer away somewhat.
Also, while there are demands from more or less all quarters within the country to do away with this law, the government perhaps wants to make a few changes here and there to spark off a discussion that obfuscates the actual objective of such a law. We must recall again that the law minister stated, “Almost all provisions of the Digital Security Act will remain in the new law.”
* Ali Riaz is distinguished professor of the department of politics and government at the Illinois State University in the US, senior fellow of the Atlantic Council and president of the American Institute of Bangladesh Studies.