A Latin proverb says “Experience is the best teacher.” In view of famous British historian James Anthony Froude: “Experience teaches slowly, and at the cost of mistakes.” However, our policy of learning is different. Experience seems to have taught us little. This seems to have been reflected again in offering the police arbitrary powers in the proposed digital security law to take action against alleged offences committed using digital devices.
Adequate safeguards are considered prerequisites to prevent abuse of wide arbitrary powers. It is understood that powers should be exercised in a just, fair and reasonable manner. Safeguards play a role in preventing the exercise of powers in an unreasonable, capricious manner. But the proposed digital security law provides law enforcement agencies with wide arbitrary and discretionary powers without any safeguards against possible abuse. Therefore, the apprehension of abuse of power remains in the proposed digital security law.
According to section 43 of the proposed law, police can arrest any person on suspicion that he has committed offences or is committing offences. They can also search any digital device on suspicion that evidence of offences which were either committed or are being committed may be erased or tampered or changed if there is delay in taking action. If they deem fit, they can confiscate any digital device allegedly being used for committing the offence. Exercise of the arbitrary powers under section 43 depends entirely on the “belief” of law enforcement agencies.
Law enforcement agencies have also been given the power under section 8 of the proposed law to ask the BTRC to block or remove any content from digital devices if they consider such content as a threat to national security, economy, security, public order and religious sentiments. The BTRC, Bangladesh Telecommunication Regulatory Commission, must act upon the request of law enforcement agencies.
Police have for long used, wide arbitrary powers in the exercise of the draconian section 54 of the Code of Criminal Procedure to arrest anybody on mere suspicion. Similarly, police have been given wide discretionary powers in the proposed digital security law.
A landmark judgement by the Supreme Court in 2016 put a cap on the arbitrary use of discretionary powers by police under sections 54 and 167 of the Code of Criminal Procedure, 1898 dealing with arrest on suspicion and subsequent remand. Amidst allegation of widespread abuse of power, the SC set some guidelines on enforcement of the provisions as it ruled that the sections were inconsistent with fundamental rights guaranteed by the constitution.
In face of a wave of criticism for random abuse of section 57 of the ICT Act, 2006, the police headquarters on August 2, last year, issued a circular asking police stations across the country to take advice from the legal wing of the police headquarters before registering any case under section 57. The police headquarters instructed police stations to demonstrate utmost caution in recording cases for offences committed under this section. If any suspicion arose about any complaint, the police station concerned would immediately register a general diary and then verify the authenticity of the complaint. Since then the number of cases under section 57 has sharply declined.
The circular itself seems to have appeared as an acknowledgement of widespread abuse of the cyber law and also the discretionary power of police given by the draconian section 57. The move came hot on the heels of the arrest of a Khulna journalist. That incident went beyond the limit of absurdity and abuse of the law as the journalist was sued and sent to jail under section 57 for a Facebook post over the death of a goat. The journalist was accused of “tarnishing image” of the state minister for fisheries and livestock who gave the goat to a poor man in his parliamentary constituency.
Two years before the shocking incident over the death of the goat, Probir Sikder, another journalist, who did not have a leg, was arrested in connection with a case filed against him under section 57 under the charge of tarnishing the image of a minister. He was handcuffed while he was taken to court in violation of Police Regulation and sent to jail—his bail prayer was denied.
In both cases, police took action hours after the cases were filed and arrested the journalists and produced them in courts. They were denied bail and sent to jail. Section 57 has been blamed as the root cause for their excesses as the law empowered police with sweeping discretionary powers to decide if they will arrest an accused immediately after a case had been filed. In face of widespread criticism of the way the arrests had been carried out, both journalists were granted bail and they walked out of jail. The incident following the death of a goat forced the police headquarters to take steps to curb random misuse of the cyber law against editors, journalists, social media users and free thinkers.
Such bitter experiences of the past should have been in the minds of the government officials and policymakers who were involved in drafting the digital security bill placed in parliament on April 9. Previous incidents, however, indicate a careful policy of excessive dependence on law enforcement agencies. One example may make this point clear. In 2011, the government limited the court's powers to directly issue arrest warrants against journalists, writers and others for writing or saying anything defamatory. An amendment to the Criminal Procedure Code (CrPC) introduced a provision for issuing summons against them. But in 2013, in an amendment to the ICT Act, the government further curtailed the courts' powers. Earlier under the ICT Act of 2006, police had to seek permission from the courts to make any arrest if there was no arrest warrant issued by the courts. But the amendment repealed this provision. After the amendment, police were given the power to arrest anybody after a case was filed under section 57. However, it depends on the discretion of the police whether they will make an arrest immediately after a case is filed on charge of defamation. The change led to a rise in the number of cases under the controversial section and abuse of power by the police.
The digital security law proposed to repeal the controversial section 57 of the ICT law. However, contents of it have been split into a few sections. One of them, section 29 will deal with defamation. In a positive move, this proposed provision on defamation did not allow the law enforcement agency the power to arrest an accused without warrant issued by the court. Police still enjoys such power under section 57. But the law enforcement agency need not worry about losing its arbitrary powers. According to the proposed digital security law it will have even more power than it will lose after the repeal of section 57 in regards to taking action against alleged defamation made using digital devices.
The Indian Supreme Court in March 2015 declared unconstitutional the same provision in the Indian ICT law which had provided the law enforcers with arbitrary and discretionary powers to make arrests. Our Supreme Court in the 2016 verdict on section 54 of the CrPC observed: “Absence of arbitrary power is the first essential of the rule of law upon which our constitutional system is based.” Yet the practice of empowering police with arbitrary powers go on unhindered as our policymakers seem to have learnt little from the bitter experiences of the past. It seems we have our own definition of the rule of law.
This is the final instalment of a three-part series on the proposed digital security law.
Shakhawat Liton is special correspondent to The Daily Star.