Repeal the draconian law of our time

Blog, Op-ed

This Op-ed was published in Dhaka Tribune on 16th September 2013

Author: Syeed Ahamed

Article 57 does not explain what type of online publication will be considered to fall within the scope of the very general description of “possibly” worsening the law and order situation.

There has been a lot of talk lately about the recently amended Information Communication and Technology (ICT) Act, 2006.

The controversial ICT Act was introduced towards the end of the last BNP government. Article 57 of the law has been criticised for creating the opportunity for authorities to criminalise virtually any type of online publication.

Although the act was challenged in the High Court for undermining the constitutional right to freedom of speech, political leaders still need to be persuaded some of the act’s provisions are excessive.

It had been hoped that the current AL government would abolish Article 57 of the Act as it is a clear obstacle to its vision for “Digital Bangladesh.” Astonishingly, however, the law has now been amended for the worse.

All offence under that article has now been made “cognisable,” so a police officer can arrest anyone without a Court’s permission if the officer thinks that any sort of writings including a poem or a story in any online publication can “create the possibility” to worsen the law and order situation, or “may harm” someone’s religious feelings.

It has also been made non-bailable, so a person arrested on suspicion of breaching these provisions will not have any right to bail and will remain in jail until tried. Furthermore, punishment for this offence has been set at a “minimum” of seven years (and maximum of 14 years) of imprisonment and a fine of up to Tk1 crore (10m).

Not surprisingly the law has already been dubbed as draconian. Draco was the lawgiver of ancient Athens who codified oral laws into a written constitution, and was particularly known for registering unusually harsh punishment for minor crimes. Thus “draconian” laws refer to disproportionate and unforgiving rules or laws. For example, Draco believed that even some minor crimes deserved the death penalty and thus, in many cases, people convicted of both major and minor crimes faced unflinchingly severe punishment.

Article 57 of the ICT Act is draconian in many ways. A good way to illustrate this is to contrast it with Bangladesh’s Penal Code (article 148) which provides a maximum of three years of imprisonment for rioting with a deadly weapon.

But Article 57 of the ICT Act suggests far harsher punishment, (notably the minimum of seven years and maximum of 14 years in prison) for simply publishing anything that can “create the possibility to worsen the law and order situation.”

Whilst Draco was at least specific about the acts he wanted laws to forbid – to ensure that people clearly understood what the law said so they could stay away from criminal acts – Article 57 does not explain what type of online publication will be considered to fall within the scope of the very general description of “possibly” worsening the law and order situation, or damaging the state’s image. Thus, in Bangladesh, until the act is amended or cases are decided, any online authors could be at risk under the ICT Act’s provisions. An author will only understand his/her crime after they have been arrested.

Furthermore, even though the Bangladesh Penal Code and laws on defamation ordinarily take into account the authors’ intentions and seek to avoid vagueness, Article 57 on the other hand criminalises online publications that “harm or may harm religious feelings,” regardless of whether the author intended or did not intend to hurt religious feelings.

Even Draco used to consider the “intention” of the accused when measuring the severity of a crime. For instance, he ruled unintentional “manslaughter” to be a lesser crime than intentional “murder.” Don’t the draconian laws appear better in this respect than Article 57 of the ICT Act?

We do not know who influenced the BNP government in 1994 to turn down a proposal for connecting Bangladesh with the international submarine cable network free of cost. But it has had to carry the blame for that decision.

Similarly, we also do not know who influenced the current government to amend the ICT Act for the worse in this draconian manner.

The government should accept common sense opinion about the draconian nature of this provision and repeal article 57 from ICT Act. Otherwise, it will be responsible for undermining the spirit of digital Bangladesh which it has promoted to the nation.

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