Digital Security Act: Only abolition will stop its misuse
The government had said that the opinions of United Nations experts would be taken. And now five years have passed with visits, bureaucratic procedures and letters being exchanged between UN's Office of the High Commissioner (OHCHR) for Human Rights in Geneva
It is apparent from the studies run by non-government organisations and researchers concerning cases over the past four and a half years that the Digital Security Act has mostly been applied to suppress criticism of the government and free thinking. In most of these cases, the allegations are about defamation of leaders and tarnishing the image of the state. Then there is the matter of hurting religious sentiment.
While the injured party is not always the state or the government, these are persons backed by the government or of the ruling party camp. The reason that this law has become the most effective tool in suppressing dissension, criticism and free thinking, is that many of the sections in this law are non-bailable. So to teach anyone a lesson and place him or her behind bars, this law is the best weapon, as had been the Special Powers Act.
Before the Eid holidays, the tabloid Manabzamim published two reports under the headline 'Cases under the Digital Security Act'. The two reports had separate headlines too, 'Girl develops kidney problems' and 'Borrowing money to run son's case'. Both these were quotes from the mothers of a young girl and a young boy.
The girl is Khadijatul Kubra, a second-year student of Jagannath University, and she has been languishing in jail for the past eight months. Two days later, Khadija's mother spoke to Prothom Alo too, lamenting, "From the day that my daughter has been in jail, we have had no peace. How can I celebrate Eid with my daughter in jail?" Khadija had been accused of posting anti-government statements online and tarnishing Bangladesh's image. The High Court granted her bail in February, but the state prosecution's appeal against this awaits hearing at the Appellate Division.
And it was Khodeja Begum of Bhaluka, Mymensingh who said she had to borrow money to run her son's case. Her son Emon is only 17 years old. When he was sent to jail under the Digital Security Act, he had been only 15. He had been a student of Class 9 and, irate at a mobile phone company imposing some extra charges, he had posted an angry status on Facebook. That prompted a local Jubo League leader to file a case against him under the Digital Security Act. He was told that if he paid money, the case wouldn't be filed but he turned down the offer and the Jubo League leader went ahead with the case. He was kept in jail for around two weeks and then granted bail. Now they are having to sell their land to bear the case expenses.
The refusal to suspend the law indicates that not only will the government not abolish it, but it has no intention of reforming it in any way either
When the law was being drawn up, there was no need for a referendum to discern public opinion. After all, it had been approved in parliament, albeit a one-sided parliament. The 10th parliament, just before the end of its tenure, passed this law in such a hurry that suspicions arose about it being aimed at harassing and suppressing views of the opposition. In face of vehement protest from the people, a commitment was made to amend the law, but that was never done. The government had said that the opinions of United Nations experts would be taken. And now five years have passed with visits, bureaucratic procedures and letters being exchanged between UN's Office of the High Commissioner (OHCHR) for Human Rights in Geneva.
In June last year even though this UN organisation gave its final recommendations, the matter was further delayed with excuses of discussion and debate. Now that the head of OHCHR, Volker Türk, has called for the law to be suspended, it is being said that the law can in no way be abolished. The refusal to suspend the law indicates that not only will the government not abolish it, but it has no intention of reforming it in any way either.
After Volker Türk's statement, the publishing of the UN body's recommendations finally revealed the details behind their concern. They recommend that two sections of this act be completely abolished and another eight be amended. All of these are essential for freedom of expression, free flow of information and free journalism. The two sections which they recommended be abolished completely -- Sections 21 and 28 -- are essential and important for citizens' freedom of expression and free thinking.
Law minister Anisul Huq made it clear. He said that the controversial Sections 21 and 28 of the Digital Security Act will not be abolished. What is there in those two sections? Section 21 says, "If any person by means of the digital medium makes or instigates to make any propaganda or campaign against the liberation war of Bangladesh, the spirit of the liberation war, father of the nation, the national anthem, or national flag, then such act of the person shall be an offense. Such person shall be punished with imprisonment for a term not exceeding 10 years or/with a fine not exceeding Taka one crore (10 million) or/with both."
Section 28 states, "If any person or group made publication, broadcast, etc. of information on the website or in any electronic format that hurts the religious values or sentiment, with an intention to hurt or provoke the religious values or sentiments, then such act of the person shall be an offense. Such person shall be punished with imprisonment for a term not exceeding five years or/with fine not exceeding Taka ten lac (1 million) or/with both."
The main problem found by the UN organisation in the eight sections which they recommended for amendment, is the definition of offence. This definition is so expansive and ambiguous that it hands over immense power to the law enforcement agencies and the authorities to misuse the law at their will.
The UN experts also reminded us that as a signatory of the International Covenant on Civil and Political Rights (ICCPR), Bangladesh cannot violate the commitments of the covenant. The covenant gives the rights to criticise all public figures including the head of state and those wielding political authority. Also, the identity of the criticised person cannot determine the degree of punishment. On the question of expressing views on historical matters, the punitive act violates the right to the freedom of expression.
The Digital Security Act's section dealing with the question of hurting religious sentiment, is not in keeping with the ICCPR, because if disrespect towards any religion does not amount to instigating discrimination, adversity or violence, it is not an offence. And in recent times, there have been very vocal allegations that the members of the minority community that are being charged more with hurting religious sentiment.
In the sections important for journalism which they called for amendment, they recommended that defamation not be counted as a criminal offence, but as a civil offence that can be settled through fines, publishing the facts and recognising public interest, thus dismissing possible criminal charges. The recommendations also called for curbing the authority of the regulatory body to block the flow or removing information from the internet and ensuring judicial supervision in this regard.
The law is so riddled with flaws, calling for amendments is meaningless. It would be more logical to bin the law totally and consider a new one in light of the recommendations put forward by the UN body. Following the wave of protest from inside the country and outside after the death of Sultana Jesmin in Naogaon or the harassment of the Prothom Alo editor and correspondent, even the law minister was obliged to say that efforts would be taken to reduce and prevent the misuse of this law.
If a law becomes a tool for misuse rather than protection, how can this misuse be prevented other than by abolishing it? It is also essential to adhere to the UN recommendation to provide compensation to those who have been harassed by this law. Sultana Jesmin's family, Khadijatul Kubra or Emon surely deserve compensation.
* Kamal Ahmed is a senior journalist.
* This column appeared in the print an online edition of Prothom Alo and has been rewritten for the English edition by Ayesha Kabir