COVID-19 and the assault on fundamental rights
A spectre is haunting the conscientious citizens of Bangladesh—the spectre of the Digital Security Act, 2018 (DSA). By now the law has become synonymous with curtailment of freedom of expression and repression. The recent developments of involuntary disappearance, re-appearance and subsequent detention of several commentators and social activists have raised the alarm if indeed we as a nation are shying away from upholding one of the cardinal principles of the Muktijuddher Chetona (the spirit of the Liberation War) to freely express our views.
A few recent cases will corroborate the above statement. On May 6, businessman Mushtaq Ahmed and cartoonist Ahammed Kabir Kishore were sent to jail and Dhaka Stock Exchange director Minhaz Mannan Emon and Rastra Chinta organiser Didarul Islam Bhuiyan were shown arrested a day after they had reportedly been picked up in a case filed under the DSA allegedly for spreading "rumours". Five persons based in Sweden and Germany and six more unnamed persons have been named for "tarnishing'" the image of the father of the nation, "hurting" the spirit of the Liberation War, and "spreading rumours" about COVID-19, army and other security forces among others, on social media.
Cartoonist Ahmed Kabir Kishore, began profiling "life in the time of corona" while Mushtaq started spreading anti-state propaganda, the complaint noted. It was further claimed that authorities had detected "anti-state chatting" in the WhatsApp and Messenger exchanges of Mushtaq, Minhaz and Didarul. The original complaint was annexed with 60 pages of screenshots and a compact disc as evidence, and a 2-page list of articles seized and details of their Facebook profiles, including the URLs.
The government move came at a time when citizens were reeling from the bizarre developments centring the involuntary disappearance of journalist Shafiqul Islam Kajol (March 10), his re-appearance in the border town of Benapole (after 53 days) and subsequent placement in detention. The authorities' attempt to present Kajol as an absconder from justice failed to gain traction. The CCTV footage of some people surrounding his motorbike just prior to his disappearance, the initial refusal of two police stations to register the family's attempt to file a case, the lack of progress in investigation, improperly detaining him under Section 54 of Criminal Procedure Code to secure time to frame other, publicly humiliating him by handcuffing his hands behind his back (a practice reserved for those accused of violent crimes such as rape, murder, terrorism and the like) and "law enforcement agencies' overdrive to keep him in prison" at a time when courts are dysfunctional, all point to the fact that Kajol has been deprived of due process of law and may perhaps be a victim for freely expressing his views on matters of public interest.
Detaining individuals on charges of "spreading rumours", "tarnishing image" and "hurting spirit of Liberation War" for an unstipulated period in a situation when they cannot seek protection of higher judiciary amounts to arbitrary action. It may be recalled that initially Kajol had been detained under Section 54, violating the guidelines framed by the High Court and upheld by the Appellate Division. As the hearing of the government's review petition is still pending those guidelines continue to remain in force. Therefore continued detention of Kajol under Section 54 appears to be in breach of the law.
It is a matter of the courts to decide whether charges brought against the above accused for "spreading rumour", "tarnishing image" and "hurting" a sentiment are tenable or not. In most instances of involuntary disappearances, including the ones above, does not the denial of law enforcement agencies of any knowledge of whereabouts of victims amount to making a false statement? Evidence is replete that in a number of cases victims are shown as under arrest if and when they are produced before the court, some weeks and even months after they were reportedly disappeared. Should not the errant members of law enforcement agencies be held accountable for such gross misconduct?
These recent actions of law enforcement agencies have triggered widespread protests. Rights groups documenting the excesses committed by state agencies have noted that following the outbreak of COVID-19, there has been an increase in instances of involuntary disappearance, extra-judicial killing and human rights violations. In most cases the actions were justified on ground of tackling rumours. The feeling is pervasive among rights activists that COVID-19 may have come as a boon to that section in the administration that is disposed to remain unaccountable and non-transparent, and thus quash dissent and public scrutiny.
The country is going through a testing time. It is the need of the hour to face the COVID-19 challenge in unison. The gradual rise in the infection curve with no sign of receding and the worsening conditions of the masses reinforce the fear that we are yet to chart out appropriate course of action. Framing a suitable response necessitates discussion and debate among all stakeholders and that entails tolerance of diverse views and free flow of information. The watchdog role of civil society only ensures transparency and accountability of the public functionaries and also of non-government initiatives engaged in humanitarian assistance. Those in the administration should not only welcome citizens' engagement but create enabling conditions to facilitate the process. At the very least, it entails state's unfettered pledge to uphold the fundamental rights of the citizens guaranteed by the constitution. All responses to COVID-19 must therefore be "evidence-based, legal, necessary to protect public health, non-discriminatory, time-bound and proportionate".
In order to do away with the prevailing dreary and fatalist frame of mind of the people it is incumbent on the authorities to immediately release those detained under the DSA, make every effort to recover those who became victims of involuntary disappearance, and not proceed any further with the frivolous cases of defamation. Scrapping the DSA and instituting a credible commission of enquiry with adequate authority to look into the cases of involuntary disappearance and extra-judicial killings will go a long way to re-establishing citizens' trust in the state.
As the custodian of the constitution, the Supreme Court may consider taking immediate measures to ensure people can seek its protection without any hindrance and (in the interim, until such a system is put in place) advise the executive branch to strictly uphold fundamental rights of the people guaranteed by the constitution and act in accordance with the law, and only in accordance with the law.
CR Abrar is an academic.