Another threat to free speech?

Bangladesh Law Commission has drafted proposals for a law to criminalise the distortion or denial of any documents or events connected with our Liberation War. 

The proposed legislation says the distortion or denial of any of the events that took place in the period between March 1 to December 16, 1971 will be a criminal offence.

Misinterpretation or undermining any of the documents published and publicised by the government in between March 1, 1971 to December 16, 1972 will also be treated as a criminal offence, according to the proposed law.

Presenting false, half-truth or misleading information about the history of the Liberation War in any media including text-books and making statements to national or foreign media to undermine any events of the Liberation War will also be a criminal offence.  

It allows any individual to file a case against distortion or denial or misinterpretation of any events or documents in the said periods.

An individual, according to the proposed law, may be punished with a jail term of up to five years and in addition, a monetary fine of Tk 1 crore if convicted under the law.

The law commission drafted the proposal following remarks made by a few BNP leaders, including Khaleda Zia, questioning the number of martyrs in our Liberation War in 1971. 

It has also sent the draft to the law ministry to take necessary step to translate it into law.

Apparently there are some justifications for such a law. However, a careful scrutiny of the proposed law shows its vague and draconian character. 

It is vague because it does not specifically identify events and documents which should neither be distorted nor be denied.

There are numerous incidents that directly or indirectly relate to the time span of March 1 to December 16 in 1971. Not all incidents took place in the territories of Bangladesh [the then East Pakistan] and West Pakistan.

Incidents, many yet unknown, in connection to our Liberation War simultaneously took place in many other countries including India, USA, the Soviet Union, China and at the UN during that time.

World super powers were engaged in frenzied diplomatic actions around our Liberation War.

More new information about the diplomatic war is still being discovered as researchers and historians keep working. This may continue for many more years to come.

Their efforts have been contributing immensely to a more accurate picture of the history of Bangladesh's Liberation War. Their works help the future generation to improve the veracity of facts as they learn to assess various kinds of historic evidence.

Now the crucial question to ask is: can the law commission by itself prepare and tag a list of events related to our Liberation War with the proposed law?

Is it possible for an individual to keep himself informed and updated of all events before making any comments or writing anything without risking a criminal offence?  

No list of documents published by the government in exile or by the one in independent Bangladesh from March 1, 1971 to December 16, 1972 is available in the public domain.

The law commission should also disclose a list of documents published by the government in between March 1, 1971 to December 16, 1972 to keep the citizen informed and safe from the threat of lawsuits.

Will the government publish any such list of all the published documents before the enactment of the law?

If people do not know about all of them, how will they keep themselves free from the risk of undermining or misinterpreting those documents?

A MAJOR THREAT TO FREE SPEECH

If the proposed law is enacted, making any comments or writing new articles or giving interpretation afresh on the basis of new findings of any event connected with the Liberation War will be a risky venture.

Writers and researchers may face accusation of either distorting or denying any events related to the Liberation War if their works do not match with accepted descriptions of events or documents published and publicised by the government in the said period.

There is another dangerous provision in the proposed legislation which allows anybody to file case for distortion or denial of Liberation War events.

The question can be asked, who will determine whether there has been any distortion or undermining of facts before filing the case? This will open the floodgate for vexatious litigation to harass otherwise innocent persons.

So, things will be very complicated and difficult once the proposed law is enacted. It will also pose a major threat to people's freedom of speech and expression guaranteed by the constitution.

Once the proposed legislation is enacted, it may even halt the present trend of studying history.

JUSTIFICATION FOR NEW LAW

The law commission says some people have been publicly questioning our independence and the young generation is being misled. Even distorted history is being printed in text books. Besides, it is easy to mislead a large number of people by spreading distorted facts through electronic and social media.

"Our independence will be questioned if we can not fight this menace successfully," says the law commission in justifying the proposed law.   

The law commission also cites the Holocausts Denial law and some legislation enacted in some European countries.

It says denial of genocide or supporting such crime committed during the regime of socialism after the Second World War in different European countries, particularly in some countries in Eastern Europe, has been criminalised through enactment of laws.

Currently, such legislations exist in 22 countries and genocide, crimes against humanity, crimes against peace and supporting war crimes have been brought under trial through existing legal system, says the law commission.

Austria, Belgium, France, Poland and Romania have made special legislation to hold trial of such offences, it adds.

ARE ITS REASONS JUSTIFIED?

It looks like the law commission is either acting on faulty premises or has distorted the facts to justify the enactment of the controversial legislation in Bangladesh.

The enormous suffering inflicted upon the world by the Nazi regime has prompted a number of European countries to enact laws criminalising both denial of the Holocausts and the promotion of Nazi ideology.

In fact, those who denied Holocaust have done it to promote and profess Nazism. [Nazism is the body of political and economic doctrines held and put into effect by the Nazis in Germany from 1933 to 1945 including the totalitarian principle of government, primacy of especially Germanic groups assumed to be racially superior, and supremacy of the fuehrer.]

"The aim of these laws is to prevent the resurrection of Nazism in Europe by stamping out at the earliest opportunity- or to use the phrase "to nip it in the bud"- any public reemergence of Nazi views, whether through speech, symbols or public association," says Michael J Bazyler, professor of law, who has done extensive research on Holocausts in WWII. 

Prof Bazyler is the "1939" Club Law Scholar in Holocaust and Human Rights Studies at Chapman University School of Law in Orange, California. His study titled "Holocausts Denial Laws and Other Legislation Criminalising Promotion of Nazism" examines laws around the world that are similar to what the law commission proposes.

Not all European countries have anti-Nazi laws. Austria, Belgium, the Czech Republic, France, Germany, Liechtenstein, Lithuania, the Netherlands, Poland, Romania, Slovakia, Spain and Switzerland have legislations criminalising the Nazi message and denial of Holocaust, the killing of millions of Jews and other people by the Nazis during World War II. Holocaust denial is also illegal in Israel.

Of those countries, Germany and Austria have taken these laws very seriously and vigorously prosecute both speech and behaviour having reference to Nazism and Nazis--a member of a German political party that controlled Germany from 1933 to 1945 under Adolf Hitler. Other countries like Lithuania and Romania enforce the laws sporadically.

In the aftermath of World War II, the National Socialist Party [the Nazi Party] of Germany was branded a criminal organisation and therefore banned. The International Military Tribunal at Nuremberg in 1946 likewise ruled that the Nazi Party was a criminal organisation.

Professor Bazyler writes: "German law, however, does not just stop at banning the Nazi Party. As part of efforts to overcome its Nazi past, Germany has criminalised denial of the Holocaust and also banned use of insignia to Hitler's regime and, as mentioned above, written materials or images promoting the Nazi message."

He says, despite this strict interpretation of the German so-called Holocaust denial law, promotion of Nazi ideology in Germany is growing in two important areas-- music and the Internet.

Germany's neo-Nazis are increasingly using music to spread their message, particularly among the unemployed youth of the former communist East Germany, according to experts on extremism in  Germany.

In Germany, Holocaust denial was outlawed in 1985 terming it as an insult to the personal honour of every Jew in Germany and a crime under the 1985 law. In 1994, Holocaust denial and approval of Nazism became a criminal offence.

Alongside the Western European countries, the Eastern European nations, after their liberation from Communism, have also followed suit, although, with some modifications. In November, 2006, the Estonia government enacted a law making it a crime to display Nazi-era symbols in public and prohibiting the public display of Soviet-era symbols, such as the hammer and sickle-- because of its history of being under Soviet occupation.

Other former communist nations including Latvia, Hungary and Poland also enacted laws banning the use of both Soviet and Nazi symbols at public meetings.

Poland, one of the most serious sufferers of Nazi barbarity, has criminalised the denial of both Nazi-era and Communist- era crimes.  

In the UK and the USA, denial of Holocausts and promotion of Nazi ideology are not criminal offences as these are not prohibited.

The laws enacted in the European countries are very specific; they have not kept anything vague like the law proposed by the law commission.

Given the above references, is the law commission's justification for the draconian law strong enough? 

SHOULD WE STOP STUDYING HISTORY?

Nobody can deny the importance of studying history. The American Historical Association, the oldest and largest society of historians and professors of history in the USA, says a study of history is essential for good citizenship.

But once the proposed law is enacted, studying the history of our Liberation War will face a major threat. Will it be good for people wanting to be good citizens? Should we stop studying history to keep ourselves free from the risk of committing criminal offence?

Only a few people have questioned the number of martyrs during our Liberation War. There are some people who make comments that undermine our glorious history. Those people have been severely condemned and chastised for their comments.

All evidences show, the conditions in Bangladesh and in the European countries are not the same.

Therefore, will it now be wise to punish a whole nation by the enactment of the draconian law only to criminalise the comments of a handful of people?