Freedom of expression, when 57 becomes 19

Kamal Ahmed | Update:

57

There is more or less a national consensus that Article 57 of the ICT Act is a repressive provision and a tool to misuse power. If not, then why would the ministers of the government repeatedly promise its abolition? They have also, however, said that a new law would be enacted, in keeping with the digital development. The digital security law would contain all clauses related to information technology.

On Friday night a journalist-academic friend of mine, incidentally facing charges under Article 57, asked me if I knew anything about a high-level government meeting that was supposed to be held on Sunday regarding the law. He was to appear in court on Monday. I didn’t know about the meeting and it was too late at night to make inquiries. I told him even if it was decided on Sunday to cancel the law, he wouldn’t benefit from the decision. He should just go ahead and appear in court on Monday, or else an arrest warrant would be issued against him. Surely it would not bode well if, at over 60 years of age and afflicted with diabetes, he would have to face the prospect of going to jail. If the government did take a decision to abolish the act, their decision wouldn’t reach the court within a day. And worse still, there was the apprehension that the old cases would simply be placed under the new law.

A meeting did actually take place on Sunday at the law ministry and the agenda was the digital security act. After the meeting, the law minister clearly stated that Article 57 would not be abolished until the new law was in place. And as long as this article was intact, charges could be filed under it. Any decision about the cases already filed under Article 57, would automatically fall under the new digital security act.

The draft of the digital security act states that alongside Article 57 of the ICT act, Articles 54, 55, and 56 would also be stayed and the measures taken under these four articles would then be placed under the digital security act. In other words, nothing will really change.

On Sunday, teachers and students of Dhaka University’s mass communication and journalist department formed a human chain, in protest of Article 57. Certain teachers spoke vehemently against this article. The students had taken up this demonstration in protest of a case being filed under this act against a newly passed graduate of the department, regarding a Facebook post of his. I don’t know whether it was under pressure of the students or whether it was on their own accord, but a number of pro-government (blue panel) teachers also spoke out sternly at the gathering. A leader of the Dhaka University teachers even spoke out in a manner not heard nowadays, saying, “It is a horrifying prospect that you cannot receive bail if charged under Article 57. Most of the cases under this article are done for harassment.” A few years ago a teacher away in Australia had put up a Facebook post criticising the prime minister. He was convicted in absentia for treason and could not return home. At that time, however, the students didn’t raise a hue and cry.

Around the same time, a teacher of the National University had to go to jail for an anti-government comment. At that time when those teachers were sentenced to imprisonment in 2014, the Supreme Court in India passed a significant verdict, abolishing their IT Act Article 66(A), equivalent to our 57, terming it as going against freedom of expression. I had written a piece in Prothom Alo about how the Indian court had shown the way, asking whether we would have the same good fortune as the people of India. Several cases had been filed challenging the legality of Article 57 in court, but none of the hearings of these cases have been completed so far. On the contrary, the application of Article 57 has stepped up alarmingly. Over two months ago, in Shiplakala Academy in the city, law minister Anisul Huq had said that Article 57 would not be retained. But since then, at least 20 people have been charged under this provision.

Over the past three years our so-called progressive citizen groups have failed to put pressure on the government to abolish this black law which poses a threat to freedom of expression. It is actually not that they have failed. It is that they did not want to do so as this would give leeway to the government’s political opposition Bangladesh Nationalist Party (BNP). In no way would they want to weaken the Bangladesh Awami League (AL) government. Because, to them, AL is not only a force for good when it is doing something good, it is also good when it is causing some real harm. 

And is there any cause to believe that the opposition BNP itself would stand up against the black law? The basic provision of this law was their creation and AL rendered it harsher. BNP perhaps feels that if they manage to come to government, they will be able to wield this powerful tool to their own advantage.

As I said at the outset, there is no room for doubt that Article 57 is a black law. Then why is the government not taking immediate measures to scrap it? Is it so difficult to do away with a faulty law? According to the media, the police want to retain this provision at all costs. That is why it is seen that the draft for the digital security act includes Article 19, which is just the same as Article 57 in different garb. This article too speaks of so-called defamation, attempts to socially humiliate, and hurting religious sentiments. The difference is just in the degree of punishment. At present it is 10 years imprisonment and a Tk 1 crore (Tk 10 million) fine, and in the new draft it is two years imprisonment and Tk 2 lakh (Tk 200 thousand) fine. There is another difference. The new law has scope for bail, the present one doesn’t.

The proposed digital security act has another deterrent to free thought and expression.  Article 15 (5) of the draft says that if anyone carries out any propaganda or campaign, or aids and abets such activities, against the liberation war of Bangladesh, or the spirit of the liberation war, of the father of the nation, it will be considered a digital citizens terrorist crime. There had been talk of a law to prevent distortion of the liberation war history. Some of this has been incorporated in the digital crime law. It will then be impossible to publish, discuss or write any liberation war research on the internet that does not tally completely with the government-approved narrative of the liberation war history. Students will then just learn history from government-approved books like parrots, with no scope to learn or think anything new. This is a serious matter of concern.

Digital security is undoubtedly a serious matter. Digital security covers protection of individual freedom, right to information, confidentiality and protection against many crimes. Internet has long been used to perpetuate crimes such as fraud, harassment, threats and more. Then added to that is the rise of terrorism. Undoubtedly, the spread of extremist ideology, distribution of training manuals and secret communication over the internet pose a challenge to security experts. But it is not acceptable to place the expression of opposing political views in the same category as cyber crimes and extremism.

We are aware that Britain is one of the countries in the western world where extremist violence is being perpetuated in the name of Islam. Amidst increasing threats of terrorism, prime minister Theresa May has spoken of turning human rights laws upside down if needed, in order to tackle the threat of extremism. In response to this, on 26 June the UN High Commissioner for Human Rights Zeid Ra'ad Al Hussein, in a speech at the Law Society of England and Wales, said that even a criminal has certain rights under the common law in Britain. He warned about the dangers of denying freedom of expression and fundamental human rights in the excuse of tackling terrorism, saying that this would simply give rise to autocratic rule.

Let’s go back to the verdict passed by the Indian Supreme Court on 24 March 2015 against Article 66 (A). After all, the laws of all countries in the subcontinent, including Bangladesh, have similarity and India’s Supreme Court verdict is exemplary. In this 200-page verdict, the Indian Supreme Court said that Article 66 (A) of the ICT act was unconstitutional and an obstacle to freedom of expression. It said that the people’s right to information was directly hampered by this article. The verdict also gave certain guidelines for online censorship. Before the Indian Supreme Court’s verdict, the West Bengal high court had also passed an exemplary verdict, where the state had to pay compensation for having imprisoned Professor Ambikesh Mahapatra on charges of publishing a cartoon about chief minister Mamata Banerjee.

Britain’s Sir Tim Berners-Lee, inventor of the World Wide Web, is a champion for the cause of freedom on the internet. He says that this is a fundamental right of the Net users which the government or any institution cannot infringe upon.

Those who have finally begun to understand the gravity of Article 57 against freedom of expression, should also stand up firmly against any move to present the same wine in an old bottle.


* Kamal Ahmed is a senior journalist and consulting editor at Prothom Alo. The article originally published in Prothom Alo print edition has been rewritten in English by Ayesha Kabir.

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