Shahid Islam
The future of democracy looks bleaker than any time before. Amidst lingering fear that the next general election too may be a one - party show — hence a non-inclusive parliament — a slew of new laws is destined to slam total gauge on freedom of expression too. And, that may hammer the last nail in the moribund democracy’s coffin.
As if the existing laws are not draconian enough, the cabinet had on January 29 approved the draft of what is dubbed as the Digital Security Act (DSA) 2018, incorporating within it much of the controversial section 57 of the ICT Act; splitting offenses in four separate sections; making some offenses non-bailable; and, allowing police to search and arrest suspects without any warrant. The draft law is expected to be approved in the next session of the parliament.
Tougher and tougher
That makes practice of democracy, and democratic governance, harder and harder. Before the ICT act’s amendment in 2013, maximum punishment for offences under section 57 was 10 years’ imprisonment and a fine of Tk 1 crore. Besides, police had to solicit permission from the concerned authorities to file a case, or arrest any person under the law. In subsequent amendments, maximum jail term was raised to 14 years while law enforcers were empowered to make arrests without warrant.
Section 57 dealt with defamation, hurting religious sentiments, causing deterioration of law and order and, instigating against any person or organisation through publishing or transmitting any material in websites or in electronic form. It stipulated maximum 14 years in prison for the offences.
Despite repeated demand from rights group and journalists to repeal section 57 following the arrest of journalist Probir Sikdar in 2015, following his posting of a status on the Facebook, over 300 cases have been filed under section 57 in the first seven months of 2017 alone, according to Cyber Tribunal sources. And, according to reports, the cases filed under the ICT Act were processed, almost 90 per cent of them, under Section 57, initiated mostly by ruling AL stalwarts.
Draconian DSA 2018
The draft law, DSA 2018, kept the provision of revoking sections 54, 55, 56, 57 and 66 of the ICT act, although the cases already filed under section 57 will continue, according to police and the concerned ministry. As of now, 701 cases, filed under section 57, are pending with the Cyber Tribunal, according to reports.
A newly constituted Digital Security Agency, led by a director general, will ensure national digital security to combat cybercrimes, as per the newly devised blueprint. The new law also stipulates some crimes under sections 17, 28, 31, 32 and 34 as “non-bailable,” considering the gravity of the crimes committed, and the severity of the punishment imposed, the cabinet secretary said.
As per section 43 of the draft law, a police official can search or arrest anyone without any warrant issued by the court, if he or she believes that an offence under the act has been committed in a certain place, or is being committed, or, there is a possibility of crimes, or, there is a possibility of destroying evidence.
Other gauging provisions
According to section 17 of the new act, if anyone illegally enters any critical information infrastructure, he or she will face maximum seven years of imprisonment, or Tk 25 lakh fine, or both, and, he or she may face up to 14 years in jail or 1 crore in fine or both; for causing any harm to the infrastructure.
Section 21 says: if a person, through digital or electronic devices, spreads or helps spread any propaganda against the spirit of the 1971 Liberation War, or the Father of the Nation, he or she will face life imprisonment, or a fine of Tk 1 crore, or both.
Section 25 says: a person may face up to three years in jail or Tk 3 lakh fine or both, if he or she is found to have deliberately published or broadcast in the website or electronic form something which is attacking or intimidating.
Section 27 says: if any person or group deliberately publishes or transmits on a website, or in any other electronic form, any material which hurts anyone’s religious sentiment, the activity will be considered a crime, and the offender will face a maximum five years imprisonment, or a fine of Tk 10 lakh, or both. If any person commits the offence twice or more, he or she will face a maximum punishment of seven years’ imprisonment, or a fine of Tk 20 lakh, or both.
Section 28 says: a person may face up to seven years in jail or Tk 10 lakh fine, or both, if he or she is found to have deliberately published or broadcast something in the website or in electronic form to hurt someone’s religious sentiment and values. That person will face up to ten years in jail, or Tk 20 lakh penalty, or both, for committing the offence for the second time.
Section 29 says: a person may face maximum three years in jail or Tk 5 lakh fine, or both, if he or she commits offence stipulated in section 499 of the Penal Code through website, or in any other electronic form. He or she will face up to five years in jail, or Tk 10 Lakh fine or both, for committing the offence for the second time.
Penal code supplanted
Section 29 suggests that the penal code’s provision of libel, described in BPC section 499, still holds relevant and, the new act is an overkill. Section 499 says: “Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm the reputation of such person, is said to defame that person.”
Section 30 of the draft act says: if any person or group deliberately publishes or transmits on a website, or in any other electronic form, any material which creates enmity and hatred among different sections or communities, or hurts communal harmony, or creates instability or anarchy, or the possibility of deterioration in law and order, the activity will be regarded as a crime.
Section 32 says: a person may face up to 14 years in jail or Tk 20 lakh fine or both, on the charge of spying if he or she illegally enters the offices of government, semi-government and autonomous bodies, to gather information and uses electronic device to record something secretly. A person may face up to 14 years in jail or Tk 1 crore or both for hacking, according to section 34 of the new act.
Precedence of abuse
Precedence of such laws being almost invariably abusive is many. For instance, on November 23, 2017, a defamation case was filed by the cousin of a state minister, who is also a member of Madaripur District Council, accusing professor Asif Nazrul of an insulting Facebook posting. The complainant claimed that the accused had “willingly tarnished the image of the minister socially and politically by uploading the post.” The court ordered the concerned professor to appear before the district court on December 14, 2017.
The defamation case falls under the purview of BPC 499, yet, the nephew of the concerned minister lodged another complaint against the professor under Section 57 of the ICT Act for the same post that had allegedly exposed some irregularities in recruitment process in Chittagong port, at the behest of the concerned minister. As the complaint was forwarded to the police headquarters in Dhaka for clearance, the approval came in an instant, on November 26, without any authentication of the crimes committed. The minister also threatened the professor of consequences in a TV talk show.
The cases got initiated and processed despite the professor’s persistent denial that he ‘was not responsible for the post.’ That claim needed a forensic expert to authenticate, which never happened. The professor claimed, backed by convincing evidence, that, ‘people running fake pages used his name and were responsible for the misdeed.’ He urged the concerned authorities to verify the authenticity of the ‘culprit Facebook page’ before pressing charges against him.
And, fearing trouble and persecution, the professor applied and secured anticipatory bail from the High Court on November 28, 2017; claiming that, he could be arrested anytime and get locked up for an indefinite period of time while the law was being used against him only to cause harassment and suffering to him and his family. In another bizarre twist, on December 4, the government lodged an appeal against the High Court order that granted the ad-interim anticipatory bail.
We don’t have words to describe such misuse of power. But another famed academician of the Dhaka university did something close to our heart: “This episode is a blatant manifestation of how members of the ruling party abuse draconian laws against those who do not toe the official line and are not in cahoots with the party in power. It also lays bare the ways in which the state agencies have been made subservient to the ruling regime. All these do not bode well for a polity that has paid such a heavy price for independence and the establishment of democracy,” the academician wrote.
As for us, we’re more concerned now about the future of democracy, and of free expression, than any time since the war of liberation was fought to make democracy the guiding beacon of our nation.
- Courtesy: Weekly Holiday/Feb 2, 2018
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