Journalists should be worried about DSA exceptionalism
The extraordinary assurance that no journalist will be arrested immediately under the Digital Security Act (DSA) without a summon seems to be an attractive solution to the concerns and fears created by its random abuse to suppress critical voices in the media. Law Minister Anisul Huq recently gave this assurance to the members of Overseas Correspondents Association of Bangladesh (OCAB), when he said that journalists would be getting an opportunity to seek bail in court. In a significant shift in the government's position on this controversial law, he also acknowledged that there were incidents of misuse and abuse of the DSA. Though his sublime remarks made an eye-catching headline, the legal and moral questions of such exceptionalism should not be ignored.
It should be noted that this controversial law was passed in a hurry, just before the 2018 elections, brushing aside the concerns of journalists and human rights activists. Those apprehensions of widespread abuse of the DSA have now been proven correct. The international community—especially Western democracies and various organisations working on democracy, human rights and the rule of law—have also expressed their concerns about the DSA publicly and in private conversations. One may wonder whether the statement made to the representatives of foreign media was an attempt to allay some of the concerns of friends abroad.
Sadly, his assurances are even more troubling, because none of his words can be found in the law. Therefore, in order to afford this extraordinary exemption to a journalist, the officials and employees of the republic have to sidestep the letter and spirit of the law. This they are not expected to do; rather they should dutifully resist. Such verbal assurances, therefore, have no legal value whatsoever. Besides, who can forget the assurances given by three ministers to the Editors' Council regarding this law that were forgotten for political convenience?
This issue became even clearer when the law minister responded to a question about why there wasn't any office order issued in this regard. He responded, "We cannot give such instructions to the judiciary from the executive branch." But he added that he had been informed that internally every police station had been advised accordingly. Referring to his discussions with Home Minister Asaduzzaman Khan, the law minister said, "We have both decided that if a case is filed against a journalist under the Digital Security Act, the court will not immediately proceed with the case. We have decided that the case will be referred to a special cell formed under a different law immediately. If it is decided upon the investigation of that cell that there are ingredients of the crime that has been complained about under the Digital Security Act, only then the case will be accepted."
This part of his remarks suggests that the law is subject to the will of the ministers. Whatever has been written in the law, the ministers can make exceptions if they wish to. Doesn't it raise a serious question about the rule of law in Bangladesh? The promised exception for journalists means following two different policies in law enforcement, which is not only unconstitutional, but a gross contravention of the fundamental principle of the law that everyone should be treated equally. No wonder that the Transparency International Bangladesh (TIB) has called for making it a common rule for everyone.
As a journalist, some of us may find it convenient and too tempting to welcome this move. But a little warning for them is that these exceptions are entirely dependent on the goodwill or wishes of the government, and the price may warrant some compromise against our professional ethics. We can recall that Ruhul Amin Gazi, a leader of an anti-government journalists' union, is still in jail under the DSA after repeated denial of bail by a number of courts.
According to newly released figures from ARTICLE 19, an organisation that advocates freedom of expression, at least 15 journalists have been prosecuted and jailed under the law in 2021. Between January and November last year, lawsuits were filed under the DSA against at least 225 people, including 68 journalists. Journalists don't need special favours as an individual or working for some privileged media houses. What is needed, instead, is to ensure the protection of professional rights of journalists under any law. The misuse of DSA did not only affect journalists, but also a number of university teachers, authors, singers, and intellectuals. Author Mushtaq Ahmed died in custody under this law. This law has become a preferred tool of political harassment, intimidation and suppressing dissent.
As the law minister has admitted that there has been some misuse and misapplication of the DSA, we need fresh thinking and a new approach. Laws are meant to curb crime, not abuse anyone. Since DSA's abuse has already been proven in a number of cases, the only solution is to repeal it. The government's decision to seek expertise from the UN Human Rights Commission in reviewing the DSA should be expanded to replace the existing repressive law with a new one that promotes freedom of expression and protects citizens' privacy, and not persecute anyone for freethinking, dissent and criticism.
Kamal Ahmed is an independent journalist and writes from the UK. His Twitter handle is @ahmedka1