DSA goes against int’l rights treaty

The Office of the United Nations High Commissioner for Human Rights (OHCHR) recommended over 11 months ago that the government scraps two sections and amends eight others of the Digital Security Act but the government said it will not scrap them and is reviewing the sections.

Experts said the DSA has become the government's and ruling party activists' favourite tool to muzzle critics. Despite harsh criticism from the media, rights bodies, and experts, filing of cases under this law and arrests of journalists continue unabated.

The OHCHR made the call as the sections concerned failed to meet the standard for upholding article 19 (3) of the International Covenant on Civil and Political Rights (ICCPR), which protects the right to freedom of opinion and freedom of expression.

Law Minister Anisul Huq made it clear by saying that they have no plans to scrap the sections.

"Almost all countries across the world have laws like the Digital Security Act. The Digital Security Act has been formulated in Bangladesh to combat cybercrimes including hacking, and therefore, there is no question of scrapping the sections, let alone the law," he said.

More than 2,000 cases have been filed under the act, which came into force on October 1, 2018.

The abuse of the law came to the fore again on early March 29 when Samsuzzaman Shams, a journalist of Bangla daily Prothom Alo, was picked up from his home hours after a case was filed against him under the law.

Another DSA case was filed that night against Prothom Alo Editor Matiur Rahman and Shams. Shams was sent to jail the next day. He got out on bail on April 3.

The High Court on April 2 granted a six-week anticipatory bail to Matiur.

UN Human Rights Chief Volker Türk on March 31 called upon the Bangladesh authorities to immediately suspend the application of the DSA.

"My office has already provided detailed technical comments to assist with such a revision," he said.

The OHCHR, in June last year, submitted its recommendations titled "OHCHR Technical Note to the Government of Bangladesh on Review of the Digital Security Act".

Bangladesh has been a party to the ICCPR since 2000 and thus has obligations to uphold article 19 of the treaty. 

Article 19 (2) says: "Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice."

Article 19 (3) says: "The exercise of the rights provided for in paragraph 2 [article 19 (2)] of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order, or of public health or morals."

REPEAL

The OHCHR proposed repealing sections 21 and 28 of the DSA.

Section 21 says that if any person by means of the digital medium, makes or instigates to make any propaganda or campaign against the Liberation War of Bangladesh, the spirit of the Liberation War, the father of the nation, the national anthem, or the national flag, then such an act of the person shall be an offence.

The OHCHR said that given the overly broad language, section 21 risks criminalising legitimate expression that cannot be limited under article 19 (3) of the ICCPR.

Moreover, its lack of precision renders it difficult for individuals to regulate their conduct to avoid prosecution. The harshness of the penalty, including life imprisonment for repeat offences, could serve as a deterrent to legitimate public discourse, it said.

Section 28 of the DSA says that if any person or group willingly or knowingly publishes or broadcasts or causes to publish or broadcast anything in website or any electronic format which hurts religious sentiment or values, with an intention to hurt or provoke the religious values or sentiments, then such an act of the person shall be an offence.

The OHCHR said this section also appears to lack the precision required by article 19 (3). In addition, OHCHR notes the nature of the sentence is harsher than it is for a similar offence under the Penal Code.

The Penal Code indicates a punishment of two years and/or a fine while the DSA has provisions for five to 10 years with a fine.

The law minister said section 21 ensures protection of the dignity of the Liberation War, the spirit of the Liberation War, the Father of the Nation, the national anthem or the national flag. "People have feelings about these things. Leering that, anti-liberation forces try to create anarchic situation. That's why the government will not repeal this section," he said.

On section 28, Anisul said there have been attempts to create an unstable situation by hurting religious sentiments through posts on social media. As a result, the government believes that this section cannot be abolished in any way.

He said the government was reviewing the law to stop misuse of the two sections.

AMENDMENT

The OHCHR proposed amendment of sections 8, 25, 27, 29, 31, 32, 43 and 53.

The OHCHR is concerned about the blocking and removal power, given to the authorities under section 8, of any data-information published or propagated in digital media that threaten digital security, hampers the solidarity, financial activities, security, defence, religious values or public discipline in the country or information that incites racial hostility and hatred.

The power is extremely broad and given to the executive body BTRC. And take-down orders do not require the content to be unlawful or criminal, thus it unduly restricts freedom of expression and access to information, it said.

Sections 29 criminalises "defamatory information", and section 25, criminalises "offensive, false or threatening data-information". Both are considered civil liability issues in other countries, it said, adding that the DSA also has provision for harsher punishment in comparison to the Penal Code.

The OHCHR said defamation should be decriminalised as it discourages the media from publishing critical information.

It said that section 27 (d) criminalises a broad range of acts of accessing or interfering with computers and computer networks and data-information without establishing any clear link to the elements commonly understood to define "terrorism".

The section carries the potential for arbitrary application and misuse of the term "terrorism". It is recommended that in defining terrorism, the definition directed by the Special Rapporteur of Human Rights and Fundamental Freedoms is used.

Moreover, the possibility of data-information to be used against friendly relations does not constitute a sufficient basis for the criminalisation of accessing such information, it said.

Section 31 relates to an offence of "deteriorating law and order, etc" for the publication of material that "creates enmity, hatred or hostility among different classes or communities of the society, or destroys communal harmony, or creates unrest or disorder, or deteriorates or advances to deteriorate the law and order situation."

The OHCHR notes the vague and broad nature of the language and the harsh nature of the sentence.

Section 32 refers to "breaching secrecy of the government" for the commission or assisting the commission of an offence under the Official Secrets Act.

The OHCHR is concerned that the broad scope of this section, coupled with the harsh penalty of a maximum jail term of 14 years and/or a fine, could have a negative impact on investigative journalism.

Its note said section 43 allows warrantless searches, seizures and arrests by police officers and they are afforded "unfettered discretion".

Section 53 refers to offences that are cognisable and nonbailable.

"This means that the default approach is to keep the accused persons in pre-trial detention. It is reported that 80 percent of detainees in Bangladesh are in pre-trial detention," the OHCHR said.

Under international human rights law, pre-trial detention shall be the exception rather than the rule.

On the amendment request for the eight sections, Anisul said the government is reviewing those. He, however, did not say when the reviewing will end.

Dhaka University Professor Emeritus Serajul Islam Choudhury said the DSA is curbing the freedom of the media and it should be scrapped immediately. "This law is being misused and journalists are being arrested."

Supreme Court lawyer Jyotirmoy Barua said, "… We are not calling for an amendment. Rather, our demand is repealing the law. Because the DSA is contrary to the constitution and fundamental rights."

A law is made to meet the needs of citizens. "If the citizens themselves say that there is no need for this law … it is an oppressive law…. Then how can someone impose such a law? People are the owner of the state," he said.