CGS CFJ Whitepaper: Drop cases still pending under flawed cybersecurity law repealed in 2018
UNB
Publish: 02 Nov 2024, 04:57 PM
Dhaka, Nov 2 (UNB) - Cases pending under repealed provisions of
Bangladesh's Information and Communication Technology (ICT) Act should be
dropped, the Clooney Foundation for Justice's TrialWatch Initiative and Centre
for Governance Studies (CGS) said in a report released on Saturday.
With a political transition
underway in Bangladesh, the time is right for a review of the country's
succession of draconian cyber laws, said the report.
The recent announcement by
the interim government to withdraw all "speech offence" cases under
all three cyber laws is a step in the right direction, it observed.
Bangladesh has long had
laws criminalizing what is vaguely described as the dissemination of
'offensive' or 'false' information, or information that allegedly 'deteriorates
law and order' or 'hurts religious beliefs' online, according to the report.
These criminal provisions
have found form in a succession of laws: First, in provisions of the 2006 ICT
Act, replaced in 2018 by the Digital Security Act (DSA), which in turn was
supplanted by the 2023 Cyber Security Act (CSA).
Although each of those
changes was trumpeted as a measure of reform, the substance of the criminal
provisions remained the same.
Amnesty International said
of the CSA, the latest and, supposedly, the most reformed of these laws, that
it "repackages almost all repressive features of the DSA (and Section 57
of the ICT Act that preceded it)."
While Section 57 of the ICT
Act and the DSA have been repealed, over a thousand "speech related"
cases initiated under them are still ongoing, as per figures released by the
interim government.
A case under Section 57
that TrialWatch is monitoring has been pending since August 2018.
"While it is important
to prosecute cybercrimes such as hacking, sexual harassment, and other serious
offenses, Bangladesh's cybersecurity laws have been draconian and we urge the
repeal of cases filed under them," said Zillur Rahman, Executive Director
of CGS.
This joint report-the first
in a series on Bangladesh's cyber laws-concludes that the principle of legality
requires the dismissal of all cases pending under the ICT Act, because there is
no legal basis for them to continue.
When a law is repealed, the
general rule under common law is that it is as if it never existed.
The DSA, however, had a
'savings clause,' which 'kept alive' cases pending under the ICT Act at the
time of adoption of the DSA. While the CSA also has a 'savings clause', it
explicitly applies only to DSA cases and not to ICT Act cases.
"There is no basis for
cases under the ICT Act to continue. Even in the case of ambiguity, the
principle of construing criminal laws narrowly and in favor of accused persons
should mean that ICT Act cases stand terminated. Resurrection of old cases under
the draconian law, especially against journalists, activists and political
opponents, is an abuse of process of law", said Rebecca Mammen John,
TrialWatch Expert and Senior Advocate at the Supreme Court of India.
More generally, provisions
relating to 'offensive' information, 'fake news,' or information that
'deteriorates law and order,' likewise cannot survive scrutiny.
Courts around the world are
striking down 'offensive communication' and 'fake news' laws, including in
India, Uganda, Kenya, and Indonesia, and UN bodies have long criticised vague
laws used to criminalize speech, like provisions purporting to outlaw
information that 'deteriorates law and order.'
Bangladesh's interim
government has a historic opportunity to restore the rule of law in the country
in line with its human rights obligations: it should terminate all pending
cases under the ICT Act, with immediate effect.
END/UNB/MK/FH/1601 Hrs