Digital Security Act: Misused to muzzle dissent

Incarcerated for over nine months, writer Mushtaq Ahmed and cartoonist Ahmed Kishore were brought into the courtroom 11 days ago and produced before a judge.

Nobody knew they would suddenly be brought to court -- not even their families, who have not seen them face-to-face since their arrests, because of Covid-19 regulations about visitors at the country's prisons.

Their families say this was their first trip out of prison, since they were both produced before a courthouse last year on May 6 and arrested under the Digital Security Act (DSA).

This newspaper's court reporter, present in the courtroom, described them as looking gaunt and haggard, their clothes hanging loose off their frames, as they shuffled in. They were, however, not in handcuffs like many of the other prisoners.

"When I last talked to Kishore a month back, he told me his eyesight is failing," said Kishore's brother Ahmed Kabir.

The media and well-wishers rejoiced when photojournalist Shafiqul Islam Kajol was released on bail last year, but he is just one name among hundreds, including journalists, charged under the Digital Security Act.

Eleven days ago, as Judge Ash Sams Joglul Hossain of Dhaka Cyber Tribunal acknowledged the two prisoners -- the writer and the cartoonist -- in the docket, he also directed the investigators to launch a "further probe" into the case, and submit a report by March 23.

The week before, Mushtaq and Kishore had been officially charged by the police under a DSA case filed last year.

In its entirety, the case is a collection of 10 social media posts, as per the first information report filed last year on May 6.

The links submitted as evidence lead to Facebook posts and political cartoons made before the pandemic, which mock the prevailing health system of the country, and re-shares of various news articles which provided commentary on the coronavirus outbreak.

Some of the links were posts made by a satirical Facebook page called "I am Bangladeshi" of which Mushtaq and Kishore were administrators.

These 10 links were submitted as evidence into a litany of charges -- including spreading propaganda against the Liberation War of Bangladesh, Father of the Nation, National Anthem and National Flag; tarnishing the image of the nation; spreading confusion; creating hostility, hatred or adversity among people; destroying communal harmony or creating unrest, disorder; threatening to deteriorate law and order.

For these 10 links -- and the subsequent charges -- the duo were denied bail a total of six times, according to their legal team.

The first time was on May 17 last year, when a virtual court by Judge Sadbir Yasir Ahsan Chowdhury rejected their bail prayer because there was a pending remand application from the cops.

The last rejection was on January 6 this year, at the courtroom of Metropolitan Magistrate KM Emrul Kayesh, who had also denied journalist Kajol bail thrice.

DSA CASES, ARRESTS UP IN 2020

Last year, as many as 457 people of all professions were prosecuted and arrested in 198 cases filed under the Digital Security Act, notes UK-based Article 19 in its annual report.

Of this figure, 75 were journalists, while others included teachers, students, folk musicians and cultural artists among others. Nearly half of the journalists prosecuted, 32, were arrested. Most of these arrests were made in the month of May.

Compare this figure to that of 2019 -- only 63 people in total were prosecuted that year.

"The misuse of the law to muzzle opposing voices, in the name of quashing rumours, was noticeable last year," said the organisation.

The statistics back it up -- data from Article 19 shows that 33 of the complainants either held posts in the ruling party Awami League and/or were parliamentarians, upazila parishad chairpersons or mayors. Eight of the cases were filed by law enforcers.

"The law is being misused by the law enforcers because the government and administration cannot tolerate criticism about themselves," said ZI Khan Panna, a Supreme Court lawyer and chairperson of Ain O Salish Kendra, who was representing Kishore and Mushtaq at the lower courts.

He suggested the government be cautious so the provisions of the Digital Security Act cannot be misused.

On December 26 last year, the day after Kajol was released, a journalist from Pabna named KM Belal Hossain Shopon was arrested for sharing a photo on Facebook that was making the rounds on social media. Shopon is the editor of a periodical named Somoy Asomoy.

The post had a photo of a handwritten letter supposedly signed by one "Pushpo Rani" stating that she had been sexually abused by the councillor of Chatmohar municipality's ward-4. The photo was unverified, and Shopon said as much when sharing the content, adding that it should be investigated whether this is true or not.

Around seven hours after the post was shared by Shopon, he retracted the post, and shared a new announcement stating that he deleted his previous post because even after trying, he could not verify the authenticity of the letter being shared.

Seven hours of keeping up an unverified Facebook post left Shopon in jail for over a month.

Raj Ali, a pro-Awami League councillor candidate of Chatmohar municipality's ward-4, filed a case against him under DSA on December 25 last year. He charged Shopon under sections 25, 29 and 31 of the act.

The Detective Branch of police promptly moved to arrest Shopon from his house the very next day.

In addition to defamation, these charges include "creating enmity, hatred or hostility among different classes and communities of the society, destroying communal harmony, creating unrest and disorder, and deteriorating the law and order situation."

"I had even retracted my post because I did not know with certainty if this was true, but I never thought I'd have to go to jail over this. A certain section of society who I do not pander to, have used this as a tool to harass me," said Shopon.

Facebook has provided a fertile ground for journalists to get prosecuted. Gleaning from the cases mapped out by Article 19, as many as 31 cases were filed against journalists specifically for their Facebook activities -- which include wall posts, comments on posts, and things said during live videos.

But at least Shopon was released, even though he still faces charges.

Freelance journalist Jamal Mir from Barguna has been in prison since May 7 last year.

On April 7, 2020, he and a group of journalists and locals entered into what they claimed was the den of a sex-work and drug-peddling racket. A month later, Mir published that video on his personal YouTube channel and on a web TV channel.

A woman named Ruby, who was present at the location, filed a case under DSA against him alleging defamation -- since defamation is a criminal charge, Mir was arrested.

Since then, his bail was rejected a total of five times by different courts, his legal team informed The Daily Star.

Last year, on November 10, there was a glimmer of hope when the High Court granted him bail, but the public prosecutor got a Chamber Judge to stay the order five days later.

Even the law codifies that Jamal Mir's offence is non-bailable. He was charged with Section 31 which criminalises any publication or broadcast of material that creates enmity, disrupts communal harmony or causes a deterioration in the law and order situation.

As the Sampadak Parishad has repeatedly pointed out through various statements, as many as 14 of the 20 sections of the act are non-bailable.

"The excuse that if a person is given bail he will repeat the same crime does not stand. Bail is given with pre-conditions, violations of which could scrap the bail," said Barrister Jyotirmoy Barua, who has dealt with numerous DSA cases.

He is also Jamal Mir's lawyer -- and he calls a bail a subjective test. "Even if the law says that the charge is non-bailable, the judge can make a judgment for himself and decide to give bail. Similarly, the defendant has the right to seek bail thousands of times."

HC RULE ON DSA

On February 24 last year, the High Court issued a rule asking the government to explain why sections 25 and 31 of the Digital Security Act should not be declared unconstitutional.

Section 25 criminalises anyone who uses a website or digital device for the deliberate distribution of information "that is attacking or intimidating in nature", or false information intended to "irritate, humiliate, defame, embarrass or discredit a person" or publishing of material that defames the state or publishing of "fully or partially distorted information or data despite knowing that it is false".

The court came up with the ruling following a writ petition jointly filed on January 19 last year by nine people, who said the two sections imposed a blanket prohibition on publication of materials and thus violate the fundamental right of freedom of speech and expression guaranteed under article 39 of the constitution.

They added that the sections conferred arbitrary and uncontrolled powers upon the executive and the prosecuting authorities to determine whether a particular act satisfies the vague and unspecified ingredients of offence.

The government is yet to reply to the rule and the High Court is yet to start hearing of the rule, Mohammad Shishir Manir, a lawyer for the writ petitioners, told The Daily Star recently.

He added that they will take initiatives for the hearing of the rule after the regular functions of the HC resume following the ongoing Covid-19 pandemic.

Barua added he will be vigilant about the HC proceedings on the rule.

The DSA was passed in parliament on September 19, 2018. The journalist community has since been protesting it and demanding that several sections be amended to safeguard freedom of the press.