Digital Security Act to Cyber Security Act: An Analysis of its Compatibility with the Constitution and ICCPR

Anika Tahsina: Cyber security Bill 2023 is all prepared to replace the controversial Digital Security Act, (DSA) 2018. This Cabinet approved this replacement in principle on 7 August.

Amnesty International, the UK based non-governmental organization in its feedback report of CSA (Cyber Security Act) concluded that the draft CSA replicates the same repressive features of DSA threatening and restraining freedom of expression in Bangladesh. Let us examine the controversial aspects of the CSA and determine whether they are in line with the constitution of Bangladesh along with the ICCPR (International Covenant on Civil and Political Rights).

Freedom of expression is a fundamental right as it is essential for the protection of all human rights. “There’s really no such thing as the ‘voiceless’. There are only the deliberately silenced or the preferably unheard,” is a famous quote of Arundhuti Roy, the Booker Prize winner author and activist.

The decision of repealing DSA was welcomed by all human rights organizations but the only caution was to put a stop to weaponizing intimidation, harassment and arbitration. Only reducing penalties, increasing fines, making some offences bailable and, omitting higher penalties for repeat offenders prescribed in the CSA are incompetent to fight the miscarriage of justice.

Section 25 of the CSA, which criminalizes ‘publication of false and offensive information’ continues the legacy of DSA carrying  the overburden of undefined terminology, for instance, ‘affect the image of reputation of the state’ or ‘spread confusion’.  Article 19(1) of ICCPR denotes that Everyone shall have the right to hold opinions without interference. These terms without any proper comprehension can be used arbitrarily to harass and detain someone.

Section 29 of the CSA kept the minor changes of defamation making it punishable by a sentence of fine, rather than imprisonment but defamation still remains criminalized. However, the OHCHR has urged the government of Bangladesh to replace ‘criminal defamation laws with civil laws which include defenses, such as the defense of truth or a defense for public interest in the subject matter of the criticism’.

The lack of legitimacy in Section 31 has again invited whimsical applications of this provision as it punishes for ‘deteriorating law and order’ proposing five-year imprisonment instead of seven years.

According to an Amnesty international document titled ‘No Space for Dissent-Bangladesh’s Crackdown on Freedom of Expression Online (2021), eighty percent of cases relating to DSA recorded by the Cyber Tribunal in Dhaka between 1 January and 6 May 2021 were filed under Sections 25 and 29 of the DSA to criminalize “false, offensive, derogatory and defamatory information”, in contravention of the ICCPR.

Sections 21 of the DSA verbatim criminalizes for ‘making any kind of propaganda or campaign against liberation war, spirit of liberation war, father of the nation, national anthem or national flag’. Section 28 punishes for ‘publication, broadcast, etc. of information on a website or in any electronic format that hurts the religious values or sentiment’ are retained in the CSA without any material change.

The words and terminologies used in these sections seem not to meet the test of legitimacy, inconsistent with human rights law and can be a great tool of arbitration. These two sections could have followed the nuances of Article 20 of ICCPR as it puts requisite restrictions on ‘any propaganda for war’ and ‘any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence’.

Section 42 of the CSA is identical to Section 43 of the DSA which continues to authorize any police officer to search premises and body of a person and to seize computers and similar hardware, and to arrest a person present in that place – without a warrant. The power of invasive search, seizure or arrest without any definite guidance and proper set of rules makes this fresh enactment more repugnant owing to the representative cases of the DSA. Consequently, violations of right to privacy, holding opinions and liberty endangers the basic principles of  human rights.

The Constitution is the supreme law of the land and all laws must conform to the constitution. Freedom of expression including freedom of press is guaranteed under Article 39(1) of the constitution of Bangladesh subject to ‘reasonable restrictions’ imposed by law as prescribed under Article 39(2). Other than those specified grounds being reasonable, no restrictions can be imposed on this very right. The restrictions can be imposed by law in the interest of national security, friendly relations with foreign states, public order, decency or morality, and in addressing contempt of court, defamation, or incitement to commit an offence. The restrictions to be valid, the exercise of right must have a reasonable nexus with the possible breach of these grounds in serious form.

Renowned lawyer Mahmudul Islam argues in his book that security of the state is a matter of concern when public disorder is gravely deformed in an aggravated form. Nevertheless, the security of the state must be distinguished from the security of the government according to this scholar. So it is easily understandable that freedom of expression allows people to criticize the government.

When it comes to public order, the restrictions must be valid, no vague, minor or indefinite infringement of order can limit freedom of expression. The test of judging decency or morality should be that of a man of ordinary prudence not of an ‘out of ordinary and hyper sensitive man’ according to the case of Ajay Goswami v India AIR 2007 SC 493.

Addressing contempt of court, defamation and incitement of an offence, this freedom must be cautiously used so that it does not lead to the undesirable results of administration of justice. Generally, a restriction imposed will be unconstitutional if the facts and circumstances of the case can not reasonably desire it.

On the other hand, Article 19(3) of the ICCPR, considered as a seminal document in the history of international law and human rights, provides that freedom of expression is not an absolute right and it may be limited where those limitations can be demonstrated to be necessary for ensuring ‘respect for the rights and reputations of others’ and ‘for the protection of national security or of public order , or of public health or morals.’

According to the three-part test regarding the restrictions of Article 19(3) of the ICCPR, interferences with freedom of expression are legitimate only if they (a) are prescribed by law; (b) pursue a legitimate aim; and (c) are “necessary in a democratic society”.

Unregulated speeches in some cases may result in hate crimes, infringement of public order, national security of or the reputation of others. The CSA does not completely fall under the purview of the reasonable restrictions imposed by our constitution or successfully passes the legitimacy test prescribed by the ICCPR. There is little room to test whether it was legitimate and necessary because of its arbitrary provisions and previous practicality. In light of this, it is recommended the CSA shall fully comply with the Constitution of Bangladesh along with international human rights law, including the ICCPR to serve justice to the most basic human rights of the citizens of Bangladesh.

Writer is a Student of law, University of Dhaka.