The government has churned out yet another freedom-curtailing law for the parliament to legislate. The Cabinet approval of the updated draft Digital Security Act (DSA) came at a time when rampant abuse of the ICT Act, particularly of Section 57, has been widely acknowledged.
The high-ups in the administration, including the hon'ble law minister, on a number of occasions, promised rescinding the particular provision. The spin doctors' claim that Section 57 found no place in the latest draft law is an affront to people's intelligence. Citizens are quite aware that the provision in question has not only been retained under dispersed provisions (in some cases with minor changes) but in effect been further augmented.
Quite understandably, several provisions of the bill have generated a lot of discussion and drawn ire of the political opposition, rights activists and journalists. Various commentaries and analyses have convincingly demonstrated how those provisions are not only in sharp contrast to the principle of freedom of expression but also breach the great spirit of the Liberation War.
This piece argues that several provisions of the bill in all likelihood will undermine the much-desired accountable and transparent governance that is a pre-requisite of any democratic polity. It also argues that the draft law is not only a threat to journalists and thus only a matter for the journalist fraternity to contest, but also to academics and researchers who require an enabling environment of freedom of thought and expression to thrive, and historians, in particular, committed to explore new frontiers of knowledge in the light of emerging information and evidence.
The importance of investigative journalism cannot be underestimated by any rational being. Despite all odds, being supported by reporters and stringers at the local and national level equipped with simple recording devices, print and electronic media in Bangladesh have been playing a crucial role in collecting evidence to expose corruption and other malpractices of state functionaries at different tiers of the administration; excesses of law enforcement agencies, which, on occasions, amount to gross violation of human rights; and also of irregularities of non-government actors. Their sole intent is to bring to the fore the reality that ordinary people have to endure in interacting with these entities. It is also aimed at ensuring accountability and transparency so that the system functions as it is meant to and people reap the benefits of services of the institutions that are there to serve them.
To their credit, state authorities, taking cognisance of the facts and evidence presented in such reports, had taken corrective measures a number of times, often in earnest. Such positive responses of the state authorities not only earn them goodwill but also enhance citizens' confidence in the institution.
There is no reason to believe that an act of corruption by an individual or misconduct of a member of the law enforcement agency is a reflection of those in command of the state. When state authorities fail to institute investigation and take appropriate action against whom evidence has been gathered and presented, such negative perceptions begin to crystallise. This is when in citizens' perspective the state appears as an abettor of wrongdoing.
If the provisions of the proposed DSA are enacted as they are, then in all likelihood credible reporting on bank swindlers, bank defaulters, stock manipulators, manipulations and irregularities in public procurement, bribery and graft, involuntary disappearances, custodial deaths and torture, would disappear from the media. Bereft of information backed by evidence, the citizenry would only be the recipients of press advisories of the concerned agencies of the state, reminiscent of the days of military dictatorships.
Perplexed by the ploys of the authorities in retaining elements of Section 57 of the ICT Act in the new text, one may wonder whether the new law is being framed to promote institutionalised corruption and wrongdoing. By suppressing alternative and multiple channels of information for the citizenry to help them make the government accountable and transparent, is not the proposed law enhancing the insecurity of the real “owners” of the state i.e. the people?
Jurists have pointed out that in sharp contrast to the global trend in which offences of “defamation” and “hurting sentiments” are considered as civil matters, the proposed law has framed them as criminal offences. Some punitive measures incorporated are extremely harsh. Are we then to assume that generating fear of the likelihood to serve jail time was one of the motives behind criminalising the offences?
It is interesting to note that the journalist community took a lead role in resisting the controversial provisions of the proposed DSA from the very beginning. This is in contrast to the community's rather muted response when Section 57 of the ICT Act began to be put into use against bloggers and others. Journalists began protesting the draconian provision of the ICT Act only when members of their fraternity became a target.
It would also be wrong to assume that only journalists and online activists would suffer from the misapplication of the proposed DSA. Section 21 and 32 of the draft DSA will act as Damocles' sword over academics and researchers (particularly researchers of history) who dare to venture into new frontiers of knowledge. Thus far, the provisions have elicited very little concern among this group of literati. The apathy of university teachers' associations, organisations of historians and other learned bodies, including the famed Asiatic Society of Bangladesh, to engage in the ramifications of the provisions of the draft DSA, let alone express their disapproval, is quite alarming. Is the mainstream Bangladeshi intelligentsia, so proud and eloquent of its role in championing the cause of freedom, now abdicating its responsibility in upholding freedom of expression in this free land of ours?
We all agree that the law should be carefully framed so that privacy of critical and sensitive data is properly maintained without jeopardising the freedom of expression. In justifying the draft DSA the new minister for information has reminded us that journalists have “conditional freedom” and “violating privacy is unacceptable.” While there is little to dispute the fact that no freedom can be unrestrained, we respectfully submit to the minister that such restraints should be clear, logical and proportionate (which the provisions of the DSA greatly deviate from) and urge him to acknowledge that any law should be considered from a constitutional and international law standpoint.
There is a wealth of good laws and practices on the subject of the exercise of freedom of expression in the digital age. The UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression and the UN Office of the High Commissioner for Human Rights are important resources in this regard. The government may well serve itself and the people if it cares to take into cognisance—instead of brushing aside—the concerns that are being expressed by various quarters about the draft and to tap such resources before finalising the text of the DSA.
CR Abrar teaches international relations at the University of Dhaka.