Murder or killing is the most serious criminal offence. The maximum sentence of this offence is death. Yet due to the misuse of a certain law in Bangladesh, ‘speech offence’ is now facing the most fearful consequences. This is the controversial DSA or Digital Security Act.
Even in the case of offences as serious as murder, persons of 18 years or below (defined as children) are tried under the Children’s Act 2013. Under that law, children face open ‘trials’ (not in detention) and in the juvenile court their ‘punishment’ is light, the ‘accused’ are not kept in jail but in juvenile correctional facilities or institutions approved by the government. The objective is not to mete out punishment, but to care for and correct the child.
However, due to the abuse of DSA, in many instances such young ones are not receiving such facilities. Some are not granted bail and remain in prison for extended spans of time. For example, Khadijatul Kubra has been languishing in jail for over a year now, for an ‘offence’ committed when she was 17 years old.
According to a report published in Manabzamin this year, cases have been filed against 68 children (under the age of 18) under the Digital Security Act. Many of them are schoolchildren who naively uploaded pictures or posts about certain influential persons and now are bearing the brunt, suffering ignominiously. It is because these were politically sensitive issues that the cases were filed with the intention of harassment and the ages of the accused have also been mentioned in the charges. Until these matters are tried by the court, the accused remain in prison alongside the adult convicts. Many of them have to remain similarly in detention at the police stations immediately upon arrest.
Once their ages have been determined, many of them are now undergoing trial at the juvenile court. It is still not clear under what law they will be sentenced for offences described in the DSA. According to the Children’s Act, even if an under-aged individual commits murder, the highest sentence can be 10 years imprisonment at the most. On the other hand, under the Digital Security Act, the punishment for speech offence can be 14 years imprisonment or even more. While it is specified that they will be tried under Children’s Act for murder, it is not clear to many whether this will apply in the case of speech offence.
II
Section 3 of the Digital Security Act 2018 is at the root of this problem. It says there that if any provision of any other law is inconsistent with any provision of this Act, the provision of the DSA shall apply. Such a provision exists in the Children’s Act 2013 too. But as a later law, the DSA provision is generally considered to be given precedence.
In a ruling by the Appellate Division’s Justice Imanuddin, however, as the Children’s Act has been enacted only for children, this remains special law even among other special laws and in that sense, it will be given due precedence. So according to this ruling, if there are allegations of any offences under the DSA, it is the Children’s Act that should be given precedence in the arrest, detention, bail, trial and everything pertaining to the accused. But when it comes to the actual application of the law, this does not happen mostly because of two reasons. 1. Many of the police are not aware of this ruling delivered by the Appellate Division. 2. While the age of the accused is entered at random in the complaint sheet, there is no provision under the DSA to hold the police accountable for this.
The problem is that the proposed Cyber Security Act contains a section almost identical to Section 3 of the DSA. In that section of the DSA, it is said that only in the case of right to information will the Right to Information Act get precedence. The Cyber Security Act which is being promulgated in place of the DSA, says the same. But if the suffering of children under this act is to be alleviated, then precedence to the Children’s Act must be specifically mentioned and in the case of muddling up the age (ignoring the birth registration or school certificate), the police must face punishment.
III
Another abuse of the Digital Security Act is the filing of innumerable cases for the same allegation all over the country. While in the case of a heinous offence like murder there is no instance of multiple cases, but dozens of cases are filed in a case as light as defamation and the accused faces immense suffering.
The Code of Criminal Procedure Section 198 stipulates that only an aggrieved person can file a defamation case. And according to Section 205 C, there is no scope for several cases to be filed against an individual on the same charges. Yet under the DSA, activists of the ruling party. ‘aggrieved’ by statements made against their leader, file innumerable cases against an individual. And even more strangely, the court accepts these politically repressive cases.
In the proposed Cyber Security Act, though defamation has been made a bailable offence, the remaining provisions are all in place and so the scope for abuse of the law is intact. The Cyber Security Act should have specific provision against such misuse (specific provision so only the aggrieved person has the right to file the case, that the accused is summoned to court rather than arrested and that there cannot be multiple cases in this regard) It would be even better if all scope for defamation cases are removed from this law.
The opinions of all law experts and stakeholders should be taken regarding the proposed new law. Surely these views and reports that appear in the main newspapers of the country do not escape the government’s eye
IV
There are a number of other large flaws in the Digital Security Act. The definition of defamation and all other offences in this act are vague and very generalised. For example, speaking against the spirit of the liberation war, against democracy is a punishable offence in this law. If anyone carried out research and indicates that the 2018 election could be considered illegal, then this too can be construed as anti-democracy and the researcher can be arrested. The second problem is the unlimited power of the police to file cases, carry out searches and investigate. These two problems can be resolved of authority is given to a pre-trial chamber headed by a judge to take a decision concerning the case and arrest.
In DSA, such harassment cases are basically carried out under seven or eight sections. Some of the offences mentioned in these sections have been made non-bailable in the proposed Cyber Security Act. Then again, offences mentioned in certain much used sections of DSA (like sections 26, 29 and 35) are also non-bailable in the proposed law. If people are to be freed of such unnecessary harassment, all speech offences mention in the Cyber Security Act must be made bailable.
V
There is no use of making mere cosmetic changes to any law under pressure from home or abroad. The actual objective of legal reforms should be to relieve public suffering or to ensure public welfare. If that is the government’s consideration, then the opinions of all law experts and stakeholders should be taken regarding the proposed new law. Surely these views and reports that appear in the main newspapers of the country do not escape the government’s eye.
* Asif Nazrul is a professor of law at Dhaka University.
* This column appeared in the print and online edition of Prothom Alo and has been rewritten for the English edition by Ayesha Kabir