Why are the old tools of repression still in use?
Some incidents have raised fears that, despite the regime change, freedom of speech may still be under threat. In light of these events and the ongoing debate about free speech, The Business Standard reached out to experts to seek answers to whether the laws and mechanisms of control over public discourse have truly changed.
On 24 September, Hafez Md Saifuddin, joint secretary of Fatikchhari Upazila Chhatra Dal, filed a complaint in Chattogram against a 52-year-old man for making "indecent comments" in a Facebook post about the Quran, Chief Adviser Dr. Muhammad Yunus, Information Adviser Nahid Islam, and others. The case was filed under the Cyber Security Act 2023, citing Clauses 25, 28, 29, and 31.
During the Awami League regime, cases were often filed against dissenting journalists, writers, and social media creators under the Digital Security Act, which was later changed into the Cyber Security Act (CSA). One of the central demands of the mass uprising against Sheikh Hasina's rule was restoring freedom of speech. People hoped that the CSA would no longer target government critics and journalists.
However, recent events have sparked concerns about the persistence of these restrictive practices. On September 23, Information Adviser Md. Nahid Islam questioned whether media freedom should allow 'the promotion of fascists'. On the following day, playwright Rafat Majumdar Rinku was arrested for his work on transgender issues, and a case in Chattogram was also filed.
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These incidents have raised fears that, despite the regime change, freedom of speech may still be under threat. In light of these events and the ongoing debate about free speech, The Business Standard reached out to experts to seek answers to whether the laws and mechanisms of control over public discourse have truly changed.
'Can anyone just walk into a police station and file a case?'
Dr Iftekharuzzaman
Executive Director, Transparency International Bangladesh (TIB)
We cannot say that this particular incident was expected; however, it did not come out of the blue either. We must remember that while the authoritarian Awami regime may have fallen, the laws, regulations, and institutional infrastructure they established over the years still remain in our system.
If a person shares a video insulting someone, in this case, Prof Yunus and the students, the affected party should file a case against the content creator, not someone else on their behalf. Who is entitled to file a case is not clearly mentioned in the act. [According to Section 198 of the Code of Criminal Procedure, no one can sue for defamation except the aggrieved party. But in the Cyber Security Act, this is not mentioned clearly]
This is why, during the Awami regime, we saw people filing cases on behalf of others.
When it comes to insulting a particular religion or hurting religious sentiments, the CSA includes a clause for punishment (Clause 28). So, today, if someone feels their sentiments have been hurt, they can file a case against the person responsible, which is another preventive measure. But how do we define "hurting someone's sentiments"? The CSA Act does not clearly address this issue.
During the previous government regime, people's freedom of speech was restricted by exploiting these loopholes, and this became an almost institutionalised practice. The framework and regulations still exist, allowing anyone to take advantage of them.
Given the new political landscape, one of the first things I expect from the interim government is to reevaluate and reform these laws. Particularly the CSA (which is essentially a rebranded version of the DSA) should be abolished. There are other problematic laws, but the DSA, and now the CSA, were most frequently abused to suppress freedom of speech and the right to dissent. Under the guise of cyber security, this act instilled fear among the citizens of this country.
There's another issue here: can anyone just walk into a police station and file a case? There should be a system to justify or check whether a complaint has any merit before it is accepted as a case. We don't want another fascist regime to rise in this country, but to prevent that, we cannot use oppressive tools that suppress people's right to express their opinions.
"It should be repealed and replaced with a new, better-crafted law"
Barrister Sara Hossain
Advocate, Supreme Court
On August 12, Nahid Islam stated that the CSA clauses threatening freedom of expression would be reconsidered. It has now been one and a half months, and we have yet to see any action, which is concerning. So far, it remains merely a statement. Moreover, these controversial sections of the law continue to be used to harass people.
The case filed yesterday was also unexpected. The plaintiff cited religious sentiment and defamation.
On the positive side, no immediate arrests were made. The court has stated there will be an investigation, and once the report is submitted, further action will follow accordingly. This is a relief because we've seen cases in the past where individuals were arrested in the middle of the night right after a case was filed.
However, the larger question remains whether such cases should still be happening at all. At the very least, this law should be urgently reconsidered and repealed.
In the recent case, it was reported that the accused defamed students from the Students Against Discrimination movement, as well as allegations that the Chief Adviser and the IT Adviser were defamed.
There are two key issues here. First, both of these individuals are public figures, and by law, public figures are subject to criticism. There should be no defamation cases on this basis.
Secondly, a third party cannot file a defamation case on behalf of someone else. Therefore, there's no valid reason to investigate this aspect of the case. The court should clarify why it has ordered an investigation and on what legal grounds, as this is a legal issue, not one of factual investigation. Third-party defamation cases are not permissible.
It remains to be seen whether the court was directed to investigate both issues or just the aspect related to religious sentiment. My question is, if the court has also ordered an investigation into the defamation aspect, why is it allowing this, knowing that such cases cannot be filed?
For now, the government can issue an injunction. In the previous government's time, we saw that the IGP once stated there would be no immediate arrests even if a case was filed. They can consider issuing a similar directive regarding the CSA. Since the government has already mentioned that they will reconsider the law, taking immediate action on this is critical.
We've seen before how this law was used to suppress freedom of speech and individual liberty. People have been arrested and detained for simply making statements. We hope that such misuse of this law doesn't continue, but unfortunately, it's already happening. Fortunately, no one has been arrested yet in this case. This issue must be urgently addressed to prevent ordinary citizens from being harassed.
Many are calling for the repeal of the law. They are at the same time stressing the need for cybersecurity. Given how controversial this law is and the many issues surrounding it, it should be repealed and replaced with a new, better-crafted law.
"It is frustrating to see even the youngsters think like the old people"
Barrister Jyotirmoy Barua
Advocate, Supreme Court
We had suspected that the CSA (The Cyber Security Act, 2023) would be used in the same way the previous government had used the DSA. Despite some sections being made non-cognisable, several sections remain cognisable and non-bailable. There was a pattern of filing cases under the DSA by combining bailable and non-bailable sections with vague allegations. The CSA shares these same traits and seems likely to restrict freedom of expression and press freedom.
Nahid Islam's recent remarks confirm that those in power think similarly and aim to suppress dissent. It is deeply frustrating to see that there has been no change in this mindset, and even the youngsters think like the old people.
[In a recent discussion meeting, Nahid Islam said, "Of course, we want freedom for the media. But I want to leave a question with you all: to what extent should this freedom be allowed? We know freedom means freedom, and it shouldn't be controlled. But can we allow the media to use this freedom to promote fascists? Can we allow them to serve the purposes of fascists under the guise of freedom?"]
I demand the immediate repeal of this law, followed by the creation of a new one, after proper consultation with stakeholders, that ensures security rather than turning the law into a tool that fosters insecurity. Furthermore, the current laws have failed to address the most common cyber offences.
