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Orwellian Awami amendment

Bangladesh on 25 September 2013
Location : Bangladesh | Source : New Age. Image Source: New Age

The style and the content of the Orwellian Awami amendment to the ICT Act, 2006 without doubt conveys the scale of alienation of the government from the people. It is hoped that good sense will prevail and the government will reverse the decision. If past experiences were anything to go by, even though the opposition Bangladesh Nationalist Party has termed the amendment ‘politically motivated’ and a ‘tool to suppress freedom of speech and freethinking’, it would do little to change the law when and if it comes to power, writes Drabeer Chowdhury

OVER the past five years the nation has heard a lot about the spirit of the war of liberation. Bangladeshis are bracing themselves for a higher notch of campaign on that account in the coming months. The ruling Awami League, its allies, their front organisations of all hues and acquiescent intellectuals will mount yet another round of crusade to convince the people that those at the helms of the state today require at least one more term to complete the task of sending the war criminals to the gallows. They would argue that it is incumbent on all patriots to re-elect the government to make sure that the spirit of the war of liberation is held high.

It may be a good opportunity for us, as a nation, to engage in a bit of soul searching of what we mean by the spirit of the war of liberation. Although it may be a difficult task to measure how the diverse sections of the populace perceive that spirit, one would assume that exercising fundamental rights, including those of freedom of expression and freedom of association, would rank high in such perception. One would not be wrong to further think that a benevolent well-governed state, run by the duly elected representatives of the people, respectful to the latter’s aspirations for quality education, health care and employment opportunities would also rank high in that perception. As for this author, a person belonging to the middle class who has had the fortune to be reasonably educated at public expense, the spirit of the liberation war means enjoying full freedom of thought, expression and association, the right not to be forced to belong to either of the major camps of the party-political divide and the right to live (and die) in dignity.

Unfortunately, the successive ruling elites of Bangladesh have tenaciously jettisoned these essential elements of the spirit of the war of liberation. In their self-seeking project to dominate the state and its institutions, the ruling elites have managed to emasculate the basic principles for which Bangladeshis rejected the Pakistani state, in realisation of their dream of a genuine people’s republic that would at least strive to meet their core expectations.

Regrettably though, the people felt betrayed as soon after the liberation war the ruling party began to usurp the state apparatus and its resources for the gains of its own apparatchiks. As discontent and the opposition to the regime grew it created a paramilitary force, Jatiya Rakkhi Bahini (the National Guards), to quell those who stood up to challenge its authority. The alienation of the regime was further cemented with the passage of the fourth amendment of the constitution that took away the last vestiges of the democratic order.

Since then, Bangladeshis have had to endure various types of military, quasi-military, civilian and military-backed caretaker regimes. Such changes in the form of government meant little to the populace as the state continued to run along authoritarian lines, habitually undermining the fundamental rights of the citizenry. The anti-people repressive laws legislated by one faction of the ruling elite were not only retained by the other faction when it took over the reins of power, those were often reinforced. A plethora of so-called dark laws and practices continued to remain in existence belying the great spirit of the liberation war.

‘Special Powers Act’, ‘Section 54’, ‘remand’ all became integral pillars in quashing the opposition on the pretext of national security. Instead of upgrading the regular forces of law enforcement and gathering intelligence, special forces and specialised intelligence agencies were established often with questionable intent. Needless to say, unbridled political interference and patronage coupled with pliant judiciary and the media, created fertile grounds for these agencies to operate with near-complete impunity, again in complete negation of the spirit of the war of liberation.
It is in this context that the recent amendments to the Information and Communication Technology Act of 2006 need to be viewed. Under Article 57 of the amended act, if any person deliberately publishes any material in electronic form that causes to deteriorate law and order, prejudice the image of the state or person or causes to hurt religious belief, the offender will be punished for a maximum of 14 years’ and a minimum of 7 years’ imprisonment. It also made the crime non-bailable. The amendment also empowered the police to arrest the offender without authorisation of the court.

One cannot dispute the fact that cybercrime is on the increase and the government is very much within its remit to change laws to combat the phenomenon. This is because the laws and institutions of the state are there to protect the citizens and the latter is pledge-bound to ensure such protection. The government of the day justifies the amendment on the ground that it has been done on good faith. It wants us to believe that the well-being of the people is its paramount consideration. As common citizens, we want to have faith in what the government says; after all, we voted it into power. But, before we lay such trust on this omnipotent institution, would it be too improper for a citizen to demand explanation from the state on the circumstances that led it to effect those amendments and their contents?

Firstly, what was the urgency in amending the law through an ordinance? Why would the government not place the amendment before parliament and give the august body an opportunity to discuss a legislation that many feel infringes upon fundamental rights of the citizens? After all, parliament was due to meet within days. Therefore, by amending the law through an edict, has the government not denied the lawmakers playing their due role?

Secondly, why has the government not felt the need to engage the public in debating the proposed amendments? Is it not only fair and proper that in a democratic order people deserve to be consulted in the lawmaking process? After all, could the government that is committed to make the country digital not at least post the amendment on the ministry’s or parliament’s website and solicit opinion from other stakeholders?

Thirdly, why has the government found it necessary to augment the punishments without clarifying the vagueness that exists in the original provisions of the law? Is it not elementary that provisions of penal laws should always be clear and unambiguous? One may note that the legal process in Bangladesh is plagued by inordinate delays. Instead of putting in place measures to expedite disposal of cases, increasing the length of punishment will only undermine justice.

Fourthly, why has the government decided to make the offences under Section 57 cognisable, giving the police the authority to arrest alleged offenders without the court’s order? One fails to understand that how on earth did those in the government feel that this ill-equipped and ill-trained (let us not talk about partisan) police force should be given such blanket authority that requires specialised technical knowledge. Observers note that non-cognisable and bailable provisions of the original law provided a degree of protection against the vagueness that existed. However, the amendment has done away with that protection as well. Under the original arrangement, an alleged offender would have been entitled to securing bail. The amendment would make the individual stay in prison for the entire duration until he is proven innocent.

Fifthly, why would the government rush through the amendment of the specific provision of the law under which it has already charged a prominent human rights activist, Adilur Rahman Khan? Is one then justified in assuming that the amendment is directed to punish an individual, now a villain in the eyes of the executive arm of the state?

It is interesting to note the rationale provided by the secretary of the ICT ministry, Nazrul Islam Khan. He explained that the government took the original act as the pillar and proposed amendments to some of its sections. The secretary then resorted to a queer logic, ‘As nobody objected to the existing act there is no scope to challenge this amendment initiative’! In justifying the move, cabinet secretary Musharraf stated that, at a recently concluded meeting, the deputy commissioners asked for action against the perpetrators of cybercrime. The amendment, therefore, was in response to the felt needs of those who are on the ground. One wonders if the administration in Dhaka would have been so decisive and responsive had the deputy commissioners demanded action against the local goons of the ruling party, interference of the MPs and other party stalwarts in day-to-day running of the district administration and tadbirs of the high and mighty who hang around the corridors of power.

The amendment elicited sharp response from informed sections of the community. A member of the high-profile Digital Task Force, the highest government body in the ICT sector headed by the prime minister, was quoted as saying, ‘There is no doubt it is a black law … Not just ICT people, every citizen should join hands to protect their rights by preventing execution of the law.’ Others have gone on to note, ‘the government would not be able to tackle cybercrimes with this kind of “inefficient act”.’ The president of the Bangladesh Computer Society is reported to have stated, ‘The law was inadequate to deal with cybercrimes.’ Suggesting that ‘the law offers the scope for political misuse’, he also pointed out that it is in conflict with the country’s Evidence Act. Eminent jurist Shahdeen Malik has observed that Section 57 ‘will take the country back to the mediaeval age’ and has made the ICT Act ‘ridiculous’.

It may be noted that in 2010 a rule was issued by the High Court as to why Sections 46 and 57 of the ICT Act 2006 should not be held ultra vires (beyond the authority) of the constitution. Although the rule was returnable in four weeks, the government is yet to respond to it. Among other things, the petitioners in this case (Writ Petition No 4719 of 2010) argued that the provisions were vague and uncertain and provided the government with arbitrary powers, the penalties prescribed were disproportionate to the offences committed and they violated fundamental rights to freedom of expression, freedom of association, the right to be treated in accordance with law, guaranteed under Articles 31, 38, 39 of the constitution and Article 19 of the International Covenant on Civil and Political Rights. It would not be out of context to argue that upholding the spirit of liberation war entails that the government makes itself accountable to the higher judiciary and responds to the points stated above.

The style and the content of the Orwellian Awami amendment to the ICT Act, 2006 without doubt conveys the scale of alienation of the government from the people. It is hoped that good sense will prevail and the government will reverse the decision. If past experiences were anything to go by, even though the opposition Bangladesh Nationalist Party has termed the amendment ‘politically motivated’ and a ‘tool to suppress freedom of speech and freethinking’, it would do little to change the law when and if it comes to power. The true spirit of the war of liberation beckons everybody, including those much decorated and revered ‘guardians of national conscience’ who have thus far opted to remain silent, to stand up for the rights and freedoms of all persons.

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