The ‘reformed’ CSA has given rise to the debate whether certain offences are bailable or non-bailable. But should these offences be criminalised in the first place?
On Monday, Jagannath University’s political science student Khadijatul Kubra completed one year in prison. She was arrested under the Digital Security Act (DSA) for hosting a Facebook webinar where a guest speaker made contentious remarks. In October 2020, police filed two cases against Khadija under the DSA.
“The year-long incarceration and repeated denial of bail to Khadija is a travesty and flagrant violation of the right to freedom of expression in Bangladesh. She should be in university, studying for her degree, and not in jail waiting for her fate to be decided under a draconian law,” Nadia Rahman, Amnesty International’s Interim Deputy Regional Director for South Asia, said in a media release on Monday – marking the one year arrest.
Khadija is not alone. Many had fallen victim to DSA provisions. However, the government said earlier this year that the DSA 2018 is being reformed into Cyber Security Act 2023.
The CSA draft was approved by the cabinet on Monday. “Vetting of the draft law is over and it will be placed in the next parliament session,” Cabinet Secretary Mahbub Hossain told reporters after the approval came at a cabinet meeting at the Prime Minister’s Office.
This begs the question, will Khadija’s fate be different now? Can CSA protect people from Khadija’s fate?
Is there a reason for relief?
On 7 August, Law Minister Anisul Huq said the new law would be a reformed version of the DSA with less harsh provisions. Huq’s briefing was met with questions and concerns from stakeholders and human rights organisations regarding the effectiveness of the changes — mainly if it negates the DSA’s contentious provisions or rather simply rehashes it.
On 9 August, the CSA draft was published on the website of the Information and Communication Technology (ICT) Department, seeking the views of stakeholders with a two-week deadline.
A commendable step perhaps because it offered a two-way dialogue, in some capacity, bridging the gap between the authority and the people which the law will govern.
A civil rights platform called Nagorik pointed out that 14 days is a very limited period for providing any feedback on the draft law, according to an English language daily.
Another platform, Forum for Freedom of Expression Bangladesh, said that 11 sections of the proposed act are inconsistent with the constitution, fundamental human rights and the rule of law.
So what about the 500-900 recommendations submitted to the ICT ministry? Abu Sayed Md Kamruzzaman, director general of the Digital Security Agency, told the media that 900 recommendations were received over the roughly two-week period in August. Were these incorporated in the approved CSA draft?
“None of the human rights organisations I spoke to today sent any recommendations. The recommendations received are from the government loyalists,” Saleem Samad, General Secretary at Forum for Freedom of Expression Bangladesh, told TBS.
He further explained how the recommendations received in August by the said ministry are basically praises. “But [the approved CSA draft] still remains a threat to the freedom of expression.”
“There’s a female student [Khadija] still in prison. And there are many more similar cases. There’s now a perpetual fear which has increased self-censorship – and that has happened because of these kinds of laws,” said Samad.
Additionally, Nur Khan, Human Rights Activist, explained how asking for the “views of the stakeholders” as has been done is not nearly adequate. For something as contentious as the DSA, which has a track record of doing substantial damage to Bangladeshi citizens, an open dialogue with the common people, or “the stakeholders” is vital.
“Our demand is that it is discussed with the people. And that the law is made people-friendly. However, the government has not taken any initiative to discuss this with the common people,” Khan told The Business Standard.
Still in murky water
The cabinet’s approval of the CSA draft makes all offences bailable except for those under four sections — which are illegal access to critical information and computer infrastructure, cyber terrorism offences, hacking-related offences and desecration of the national flag and the Liberation War.
But the point of the matter is not if provisions state offences as bailable or non-bailable – a prominent highlight of the “reformed” CSA which seems to be pushed up on the discourse – because “these offences should not even be criminal cases, rather should be civil cases,” explained Shahdeen Malik, a Bangladeshi lawyer and jurist.
Generally, less harsh provisions for punishment pertain to civil cases. It’s the criminalisation of certain offences under the DSA, and now the CSA, that remains the root of the problem.
“We are repeatedly saying that the CSA will have to be scrapped because it is against free and just journalism, critics and netizens. It is a threat to them. What is bailable or what is non-bailable, it is not the main thing,” explained Samad.
Jurist Shahdeen Malik said that civilised countries around the world have moved defamation and ‘hurt your sentiment’ [offences] to civil cases. [Meaning] if you think that my words have tainted your image, you can file a case in the civil court. In these cases, the state will not be involved.”
Malik further explained how civilised countries around the world scrapped these kinds of provisions from criminal laws 100 to 150 years ago because of the possibility of abuse of the provisions.
However, “we have brought back those offences in the Penal Code. If you count these offences as a crime, these are bound to be abused,” said Jurist Shahdeen Malik.
In the Cyber Security Act, if these provisions are kept in the law, they are bound to be misused, according to Malik. “Why are we doing it? It is not justified in a democratic country,” he said.
Amnesty International, in a letter to the ICT ministry, said, “The only changes the CSA makes are related to sentencing, which can be summarised as follows: lowering the maximum applicable prison sentence for eight offences, removing a sentence of imprisonment for two offences, increasing the maximum applicable fine for three offences and removing the higher applicable penalty for all repeat offences.”
To be more specific, for instance, Publication, Transmission of Defamatory Information (Section-29 (1)) in the DSA 2018 said punishment can be a maximum of 3 years imprisonment or a maximum of Tk5 lakh fine; or both. Now CSA says that for the same offence, punishment can be a maximum of Tk25 lakh.
“It will be seen that [fines] will stand at that amount in most cases. How many people in Bangladesh have the capacity to pay the fine of Tk25 lakh?” asked Khan.
“Everyone will agree that we need a law for cyber security. However, the government should have ensured that the law becomes people-friendly, [that] it does not create fear among its citizens,” said Khan, adding, ” [certain] people weaponise it to put others in trouble.
“There is a huge scope of abuse of the law in the draft law of the Cyber Security Act.”
The “reformation” is not enough because it fails to address the crux of the DSA. “In short, I will say it is old wine in a new bottle. The package has been changed only,” said Khan.