One Mushtaq, a Digital Security Act and the freedom of speech

Constitutionally it seems Bangladesh accolades unlimited freedom of thought and conscience and it muzzles any sort of pre-censorship on freedom of speech and expression with some reasonable restrictions considering the security of state, communal and religious harmony, decency or morality and public order etc. What amounts to reasonable restrictions can be found in article 39 of the constitution of Bangladesh. Firstly, the restrictions shall have close connection with public order and security, secondly, the restrictions shall not be excessive. And the court shall have to judiciously interpret the interest of the state.

Theoretically in a country of constitutional supremacy, a law shall uphold the constitutional spirit while getting enacted. But sadly, in Bangladesh the legislature at times endeavours to bypass constitution when enacting a law. Digital Security Act 2018 is such a bypass among a lot of other bypasses. A law which was passed to ensure digital security has turned into a mechanism for suppressing our expression of thoughts over digital platforms. Apparently, the Act is the last nail in the coffin of freedom of speech and expression in Bangladesh. With flawed and draconian provisions within it, the Act is subverting fundamental rights of the citizens of our country.

Primarily, the Act has failed to give a comprehensive definition of digital security by merely defining it as the security of digital devices or system (Section 2k). Following the preamble, the Act was supposed to ensure digital security of the citizens and citizens should have been the subject-matter of the Act as well. Functionally digital rights of the citizens was supposed to be safeguarded under the provisions of the Act. But unfortunately, the Act did none  and came up as a resort for the government  to suppress dissenting voices and even constructive criticisms  of the government.

The death of Mushtaq, an activist and a critique of government stirred the whole nation.  He was arrested under four provisions of the Act i.e. 21, 25, 31 and 35 of the Digital Security Act 2018. Two of the sections (25, 35) are bailable whereas the rest of the two are nonbailable. The Code of Criminal Procedure makes scope for bail even in nonbailable offences if the investigation continues for longer period (more than 180 days). Mushtaq was in custody with and without trial for about 10 months which obviates the ground for bail not as of right but as of practice if not punishable by death sentence or life imprisonment in the criminal justice system of Bangladesh under Section 497 of CrPC. Notably, here section 40 of the Digital Security Act says the investigation shall be concluded within 105 days grossly and section 52 directs the trial shall be concluded within 180 days. Mushtaq was in custody for more than 300 days; neither the investigation ended in 105 days nor the trial in 180 days. Though it availed him the right of seeking bail under section 339(C) of the Code of Criminal Procedure, but he was denied bail by the court, that too for six times.

There is no proof beyond reasonable doubt that he was tortured to death, but this is presumable that being in jail for a crime far less grievous than murder or rape led to his death. Whether there are some other contributing factors or not remains the question of investigation. The same investigation mechanism that could not be accomplished within the prescribed days may deliver justice to the dead if duly maneuvered or may subjugate justice in the vicious cycle of legal hegemony created by state under the vices of the Digital Security Act.

The writer is Lecturer, Feni University Bangladesh.