On 5th September, the legislature passed the new Cyber Security Act 2023 (CSA) repealing much criticized Digital Security Act 2018 (DSA). However, the CSA 2023 has also been subject to somewhat unfair criticism similar to its predecessor. U.S Embassy Dhaka on 14th September issued an official statement on the passage of the CSA criticizing its features stating that the new law “retains many aspects of its predecessor” and that it “continues to criminalize freedom of expression, retains non-bailable offenses, and too easily could be misused to arrest, detain, and silence critics.” While criticism to any change is necessary in a democratic society to explore ideas and improve on it, any sincere criticism must address the positive sides of that change too. Dhaka US Embassy’s statement on the CSA in that sense is not much sincere. They have mentioned that the new law “retains non-bailable offenses”, without justifying this criticism, as the offences retained as non-bailable are serious offences of cybercrime also recognized worldwide. The non-bailable offences under section 17, 19, 27 and 33 are related to illegal access to any critical information infrastructure, damage of computer, computer system, cyber terrorism and hacking respectively. As a general rule, Bangladesh’s criminal justice system makes offences of serious nature cognizable and non-bailable which allows the law enforcement agency (LEA) to take immediate preventive action by arresting the accused without obtaining an arrest warrant. In respect to bail, the court may grant bail in case of a non-bailable offence as a general rule with only one exception. The court has been instructed not to grant bail only in case there appears reasonable grounds for believing that the accused has been guilty of an offence punishable with death or imprisonment for life. Therefore, it is tough to understand the embassy’s criticism on the point of retaining non-bailable offences. The criticism was however justified in case of DSA where the LEA did actually have a wide power due to most of the offences made cognizable and non-bailable which included 3 instances where speech related crime was the subject matter. But the new law has widely reduced law enforcement agency’s pre-emptive detention authority and scope of its misuse by making all speech and expression related offences non-cognizable and bailable. This means, under CSA, the police will have to obtain arrest warrant from the court before arresting someone for any offence related to speech or expression and the accused will get bail as of right and shall not serve any prison time unless convicted with the offence accused of. As far as the question of bail is concerned nobody can be anything but happy with the CSA in respect to what we had under DSA.
On the question of suppressing free speech, it is true that Bangladesh law criminalizes certain speech and expression. There are 5 provisions of the CSA which criminalizes speech or expression. Those are section 21[offences of making any kind of propaganda or campaign against liberation war, spirit of liberation war, father of the nation, national anthem or national flag], section 25[offences of transmission, publication, etc. of offensive, false or threatening data-information to insult, annoy, malign any person or to spread confusion and damage reputation of the country], section 28[offences of publication, broadcast, etc. of information in website or in any electronic format that hurts the religious values or sentiment], section 29[defamation] and section 31[offence of deteriorating law and order].
The first step of solving a problem is acknowledging that there is one. Yes, the provisions of the DSA had the scope of its misuse and in some cases it was so. Due to cognizable nature of section 21, 28 and 31 in the DSA, overzealous individuals had the opportunity to lodge complaints which empowered the police to arrest the critic without going through any judicial measure beforehand. And the non-bailable nature of those offences empowered the court to use discretion in not granting bail to those accused. That scope of misuse has rightly been curtailed by the new Act. However, on the question of whether these provisions should stay at all, unlike unwavering support of netizens behind the embassy’s statement, sadly most of these people ideologically do not align with the concept of absolute freedom of speech in reality.
On our hypocrisy and selective morality
When the USA advocates for freedom of speech and we stand behind them, some clarity is needed. US doctrine of free speech makes the right absolute unlike Bangladesh where we have qualifications given in the Constitution. So, when the US advocates for free speech, that includes abolition of section 57 of the ICT Act, section 295A of the Penal Code and section 28 of the CSA too. These provisions of the law are related to offences concerning hurting religious sentiments by speech. And Bangladesh has a bloody history of religious fanatics’ terrorism on atheists and critics also demanding criminalization of religious critics. Criminalizing the victims was the worst blow on free thinking in Bangladesh. But the government was forced to include this provision in the law (in section 28 of the DSA and subsequently in CSA) due to massive movement from the major religious groups. That is why it is necessary for all those who stand behind the embassy’s statement or concern regarding curtailment of free speech in Bangladesh to know what their stand means. And if they are knowingly standing behind USA and advocating for absolute free speech in Bangladesh, that stand would be based on an established principle of free speech which can be applauded. However, the reality is vastly different. AL government has been nothing but an obstruction in the way of religious fanatics and fundamentalists over the years. As USA today, for various geopolitical reasons is trying hard to influence Bangladesh’s politics, those fundamentalists who do not even believe in most of the basic human rights have stood behind USA in praising their statement on the CSA. It is equally shameful that the US Embassy Dhaka before issuing a statement on the CSA did not even care to assess the positive changes and rather even criticized it due to “retaining non-bailable offences” which has no connection with speech or expression.
Today we concern ourselves with the abusive government practice of silencing critics. But we fail to look at the deeper end of the pool, where our hypocrisies lie. The concept of a free marketplace of ideas has been compromised by our own selective morality when it comes to religious sentiments.
All the free speech advocates today should therefore make it clear of what degree of freedom of speech they wish to achieve in our laws. They should make it clear whether they wish to keep or abolish offences under section 57 of the ICT Act, section 295A of the Penal Code and section 28 of the CSA. Otherwise, the hypocrisy of criticizing a law standing on the idea of free speech just to create a smoke screen for achieving some ulterior motive must be exposed.
