Cases pending under repealed provisions of Bangladesh’s Information and Communication Technology (ICT) Act should be dropped, the Clooney Foundation for Justice’s TrialWatch Initiative and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.
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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While Section 57 of the ICT Act and the DSA have been repealed, over a thousand “speech related” cases initiated under them are still ongoing, as per figures released by the interim government.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.
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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When a law is repealed, the general rule under common law is that it is as if it never existed.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.