Column by Mahfuz Anam: Why is personal freedom such a plaything of the law enforcers?

Isn't personal freedom one of the most cherished and universally celebrated principles of our civilisation? Isn't guaranteeing this freedom the most sacred task of a modern state? Hasn't individual freedom been recognised as one of the fundamental rights of every person, and as such enshrined in the UN's Universal Declaration of Human Rights? Hasn't that right been pledged to each and every citizen in every constitution of every modern state? Doesn't this—the guarantee of freedom to all—form the very basis of our own constitution? If all the above questions reflect irrefutable truths, then why are we so indifferent, so disrespectful, when it comes to assuring this fundamental right to our citizens?

One of the realities of the present-day administrative and justice systems that worries us deeply is the utter disdain with which personal freedom is treated by people who are in a position to decide whether a citizen will be free or in prison—the government, its law enforcement agencies and, we're afraid, even the justice system. We arrest people so easily, deny bail so swiftly, grant remand at the asking, and care nothing about what it means to the individuals who are at the receiving end of this seriously questionable process.

The provision for bail in our laws is there to ensure the freedom of the accused (not to be confused with a convicted person) while the investigation and trial are on. The bail is a right because the person has still not been found guilty. He has only been accused and the judicial process may find him innocent. So, denying an accused bail is actually punishing him before the judicial pronouncement has been made. Doesn't it amount to miscarriage of justice?

We make the above points not to point out the deficiencies of our justice system—which must also be addressed if justice is to have a real meaning for our people, especially the poor—but to underscore the more fundamental and vital flaw of our habit of undervaluing the notion of individual freedom.

Take the three recent cases for example. Photojournalist Kajol got bail on his 14th attempt while being in jail for seven months and "missing" for two. Cartoonist Kishore got bail on the 7th attempt after being in jail for 10 months. Poor Mushtaq tried for bail seven times, unsuccessfully, and later he died in prison, after 10 months since his arrest.

Whatever may be the official findings about the cause of Mushtaq's death, it was the system that condemned him to it. Imagine the judicial process that would be needed to mete out death penalty to the most vicious of criminals. Consider the appeal process that would be available to him to further seek justice. Writer Mushtaq was "condemned" and his punishment implemented without the minimum due process of law being available to him. In a sense, we are all guilty for his death. We should avoid making light of his death by saying no unnatural cause was found in relation to his death. His being in jail was unnatural—his failure to procure bail was unnatural. The whole circumstances of his incarceration depressed him. The unjustness of it all further affected him psychologically and mentally. On top of it all, physical and mental torture added to a burden that he was unable to cope with.

We must immediately move away from the casual and cavalier attitude we take in granting and not granting bail. Personal freedom should only be denied when a person is an "immediate" danger to society and when his staying "free" poses some sort of a threat to others for which the person concerned needs to be denied his freedom and put into prison.

Did any of the above fall into that category? The RAB members who arrested him, the police that kept him incarcerated, the public prosecutors who pleaded against their bails, and the judges who repeatedly denied them bail must answer the question as to what necessitated their being in jail while their cases were being investigated.

Even the dreaded DSA, in section 40, specifies that the investigating officer must complete his work in 60 days. Then, with due permission, it can be extended to an additional 15 days. A further 30 days can be granted by the Tribunal, making for a maximum time of 105 days that an investigating officer can take to complete his investigation.

Kajol got bail after more than 210 days in prison, and Kishore after over 270 days.

When the honourable judge denied bail to Mushtaq, was the fact that he was already in prison for 270 days, and that the investigating authority had gone way past the legally allowable time of maximum 105 days, taken into consideration? Should this failure of the investigating officer be seen as the "weak" nature of the case? Shouldn't this have almost automatically qualified Mushtaq for bail?

According to available information, the investigating officers in all the three above cases did not seek any permission from the higher authority or from the Tribunal for the extra time they took for investigation. Therefore, the only legally allowable time available to the officers concerned was 60 days. The extra time they took were all outside the scope of the law. Instead of denying Mushtaq bail, the judge may have seen it fit to upbraid the investigating officer for failing to do his duty on time.

To us, this is a very important point and we urge our respected higher judiciary to take it up suo moto as it concerns the constitutional question of guaranteeing for fundamental rights and implementation of the law. If we still believe in the fundamental principal of our law that a "person is innocent till proven guilty", then we must stop treating "accused" persons as "guilty" and punishing them by denying bail, which is a right of an innocent person.

We think Mushtaq's death should compel us to work together to prevent its repetition. The government, the law enforcement agencies and the judiciary must put their heads together to make the process of arrest and bail more aligned to the global standards of fundamental rights.

The Digital Security Act (DSA) has not only been a cause for serious injustices to many of its victims but also an example of how self-defeating we sometimes can be, and how we end up damaging our own international image that could have easily been avoided. 

Just the other day, the UN recommended Bangladesh for its graduation into the group of developing countries from 2026, and at the same time, the UN High Commissioner for Human Rights, Michelle Bachelet, said, "Bangladesh urgently needs to suspend the application of the Digital Security Act and conduct a review of its provisions to bring them in line with the requirements of international human rights law." One was a global acknowledgement of our success, and the other a criticism of a draconian law that has done us more harm than good.

Let there be no doubt that moving away from the LDC status is a tremendous success for Bangladesh. Given its severely challenging development hurdles and dysfunctional politics of the eighties, nineties and early twenties, few people had expected Bangladesh to rebound as it did. The stability and continuity provided by the present government—which needn't have come at such denigration of democracy—contributed significantly to our present robust economic growth.

However, in the midst of that successful and creditable journey, the government suddenly decided to institute the Digital Security Act, the ostensible reason being the expanding digital universe and the need to control cybercrimes. Our journalistic instinct alerted us to the fact that the real purpose was something else. Though we—representatives of Sampadak Parishad, BFUJ and ATCO—were invited to address our concern to the relevant Parliamentary Standing Committee (we were not invited at the ministerial-level drafting stage, though we were a vital stakeholder), the draft that was finally sent to the House for approval contained none of our suggestions. In fact, in some respects, the proposed Act was made harsher.

Being totally ignored by the legislative process, we felt forced to go public with the following collective statement:

"We notice with great concern that the Parliamentary Standing Committee, without holding the promised final meeting with us, completed the draft and sent it to the House for approval. As a result, this draft does not reflect the opinion of the journalist community."

Considering the above, we demanded: 1) removal of the inconsistencies of this law with existing laws; 2) ensuring that this law will in no way impede freedom of expression and freedom of the press; and 3) that the law be amended to safeguard the interest of journalists. We believe that while formulating the rules for this law, opportunity exists to meet many of our demands and make the law acceptable to all."

Now, looking back over two and a half years since the enactment of the DSA, it appears our apprehensions have proved to be more than justified, and the whole process appears to be drenched in bad faith. There was not even an iota of sincerity in what was being said. The promises that were made by Law Minister Anisul Huq and then-Information Minister Hasanul Haq Inu—that this law would not be used to curb the free press and against professional journalists—have all proved to be hollow. I recall the express commitment by the aforementioned ministers: that during the process of formulating the "Rules" for this law, provisions would be made to accommodate the fears and concerns expressed by the media representatives so that misuse does not occur. In fact, the "rules", as they now exist, maintained all the anti-free press provisions, and in some instances, have made the implementation even harsher.

Our protest against the DSA has been continuous and unrelenting since its enactment in September 2018. Yet it needed the death-in-custody of writer-commentator Mushtaq to stir some rethinking. We welcome the granting of bail by the High Court to cartoonist Ahmed Kabir Kishore on his 7th attempt. There are credible claims of torture on Kishore that we demand be investigated.

While we welcome the comments made by our law minister to the BBC, that no one will be arrested or sued under the Digital Security Act (DSA) before investigation, we saw one person arrested under DSA on the same day, Tuesday, in Dinajpur, for allegedly spreading "fabricated information with ill intention". On the same day, a court in Khulna rejected the bail petition of a person belonging to a socio-political group. He was picked up on February 26 and sued under the DSA. The minister's comments will have to be backed up with some immediate and credible actions for us to have faith in his words.

As Bangladesh aspires—and we all rejoice at it—to become a developing country, and at a later stage, a developed one, we must not only build infrastructure for the economy, but must also build "infrastructure" for good governance and justice. We must make our legal system modern so that it can dispense justice fairly, expeditiously and without political influence. A modern judicial system is just as important and necessary as anything else we do to modernise ourselves.

The way the government and the justice system have flouted the right to freedom of Kajol, Kishore and Mushtaq should set us all thinking about how sacrosanct personal freedom is and how never to allow it to be abused so easily and frequently. 

Let Mushtaq's death not go in vain. Let it make us doubly aware of the importance of protecting individual rights. We hope that his agony, pain and sufferings will be a constant reminder that every citizen has some fundamental rights guaranteed by the constitution and that nobody has the right to deny them those rights. We hope that the law enforcement bodies will respect the constitution and our laws more sincerely, and the judiciary will come to the aid of the citizens when those rights are violated.

Mahfuz Anam is Editor and Publisher, The Daily Star.