With the hope of an amendment of DSA by September 2023, can people expect judicial probes into the pending cases?

The Digital Security Act is not the first of its kind to add fear and restrictions among the people.

In Bangladesh, it was preceded by the infamous Information and Communication Technology (ICT) Act 2006 (later amended in 2013). Since 2014, the ICT Act has come under harsh criticism as it was widely used to arrest and persecute individuals for expressing their views online.

According to Human Rights Watch, Bangladeshi police filed nearly 1,300 charges under the ICT Act from 2013 to April 2018. Most of these cases were filed under Section 57 of the act, which authorises the prosecution of anyone who “publishes or transmits . . . in electronic form any material” deemed “fake and obscene,” defamatory, or otherwise likely to “deprave or corrupt” its audience.

It also allows for prosecutions stemming from any online material that may cause “law and order” to “deteriorate”, “prejudice the image of the State or [a] person or “hurt religious belief.” In 2018, the government finally decided to repeal five controversial sections of the ICT Act, including the offending Section 57.

But this repeal did not result in a freer environment. Instead, the DSA incorporated these sections with even harsher penalties.

The preamble of the Digital Security Act 2018 states that this is an Act to make provisions for ensuring digital security and identification, prevention, suppression and trial of offences committed through digital devices and for matters ancillary to that. However, it has become a silent tool of the people in power to establish control over the media and oppress the dissenting voices.

This is mainly because the Act’s provisions are poorly structured and vague, which leaves wide scope of misinterpretation with overly harsh sentences, including life imprisonment for repeat offenders.

According to Ain o Salish Kendra (ASK) documentation, based on the media reports, 429 cases were filed under this act from October 2018 to June 2023. Law Minister Anisul Huq revealed that under the Digital Security Act, over 7,000 cases have been lodged nationwide as of January 2023.

The DSA has imposed an environment of self-censorship, curtailing the right to Freedom of thought, conscience and speech, a fundamental right guaranteed under Article 39 of the Constitution of Bangladesh.

Being widely bashed for lack of precision and punitive nature, in May 2018, Bangladesh’s Minister of Law, Justice and Parliamentary Affairs stated that the planned Digital Security Act would be amended and changed in cooperation with the journalistic society. However, despite promises, the revised Digital Security Act did not include the modifications proposed in nine sections of the law.

The law violates the guarantees of freedom of expression and freedom of the press enshrined in the Constitution of Bangladesh and the international conventions accepted by the state.

According to Reporters Without Border, in 2022, Bangladesh dropped 10 points on the World Press Freedom Index, positioning it 162nd out of 180 countries, translating the fear of limiting the space for independent journalism into reality.

Investigative journalism has come under great threat following the wide provision under “breaching secrecy of the Government”, mirroring the age-old provision of the Official Secrets Act with rather harsh punishment withdrawing the opportunity to hold the government accountable and transparent in state affairs.

The DSA’s most deadly element is the broad spectrum of crimes it regards as cognisable and non-bailable, granting the government enormous power. The act gives law enforcement agencies the power to arrest anyone, search any premises and seize any equipment without a warrant, requiring only suspicion that a crime has been committed using social media.

Also, the act allows the government to order the removal and blocking of any information or data on the internet that it deems necessary, suppressing those critical of its policies or those who share information on human rights violations in the country. Therefore, the charged person has no option but to remain in custody until his case is heard.

As per the account of freedominfo.net, starting from 1 January 2020 to 5 July 2023, 432 politicians, 379 journalists and 134 students have been arrested under the DSA. Some other professionals are also arrested under the act, ranging from businessmen, private employees and educators to government employees and NGO activists.

These arrests often lead to custodial torture and even custodial deaths. Mushtaq Ahmed, a writer and social activist, died in prison on February 25, 2020, after being imprisoned under the DSA. He was detained for ten months and was denied bail six times by the courts.

Ahmed Kabir Kishore, a cartoonist and social activist, spent more than ten months in prison for posting satirical cartoons and comments on Facebook criticising the health system during the outbreak and the government’s response to the Covid-19 before being released on bail on March 4, 2021. He was not granted bail multiple times until being released in the aftermath of widespread protests and an international uproar. He claimed that he endured abuse in detention.

The journalists, including Prothom Alo Editor Matiur Rahman and reporter Samsuzzaman Shams, faced legal action in a case filed under the Digital Security Act with Ramna Police Station.

On 31 March 2023, 2 days after the arrest of Samsuzzaman Shams, UN Human Rights Chief Volker Türk called for an independent judicial panel to review all pending cases brought under the Digital Security Act by issuing a press release.

Moreover, misuse of the act is seen in the recent Sultana Jesmine case, a government employee who was picked up from her residence. The recent lawsuits under DSA are filed against the local government representatives, leaders or activists of the ruling party, and even the university administration, providing a new dimension to its use.

Hridoy Chandra Mandal, the Munshiganj teacher whose detention sparked outrage across the country for teaching science in his classroom, spoke about how his life altered when he was released from jail.

“My family and I are now living in fear,” he said. “People continue to mock and abuse us. Just two weeks ago, I received a threat over a phone call to my daughter.” Hridoy Chandra is now hesitant to teach each science topic in his class and avoids many things. The students who agitated and organised the march against him continued insulting him behind his back.

Shankar Debnath, the founder and teacher of Blue Bird Kindergarten and the main victim of the Nasirnagar incident in Cumilla, is still hiding with his wife after a group of extremists burned down their ancestral home on the pretext of insulting religious sensibilities.

“After that attack, everything, including the respect, dignity, and recognition I had earned in the past 22 years of teaching, turned to ashes,” he said. Fire destroyed his house and school, yet the police kept him in jail for four months and eleven days in the name of safety. On the other hand, those who perpetrated the crime are roaming freely,” Shankar stated.

According to the Act, an investigation report must be submitted within 60 days. If required, investigators can request a 15-day extension.

The willful violation of this norm means that the accused will be subjected to pre-trial horrors such as arrests and extended stays in police custody, which is entirely contrary to the spirit of justice. However, defendants in DSA cases are frequently confronted with roadblocks in their bail applications.

Shafiqul Islam Kajol, the editor of Pokhsokal magazine and a photojournalist, has had eight bail applications denied. Those facing prosecution under the harsh law are not only being punished for simply exercising their right to free expression but their physical wellness is also being jeopardised by attempts to keep them in custody, even though they pose no threat.

These are significant dangers to journalists’ freedom to pursue their careers freely and independently.

If a false case is filed under the Women and Children Repression Prevention Act, the victims can seek legal help. However, a victim of a false case under the Digital Security Act has no such protection.

According to Amin Uddin, the Supreme Court Bar Association president, when final reports are prepared, it is assumed that the lawsuit was brought without substantive evidence. He suggested introducing a provision allowing the defendant to sue the plaintiff if the claim is not proven.

Leaving no room for further discussion on abolishing the Act, the Law Minister has repeatedly announced the plan for amending it by the coming September, admitting the misuse of the same. If maintained, we are on the verge of the amendment of the DSA.

Can we now hope for judicial probes into the pending cases?

Author: Santa Islam, Human Rights Researcher
Published link: Would it be too much to hope for judicial inquiries into pending cases under DSA?