Jyotirmoy Barua, Bar-at-Law, is a lawyer at the Bangladesh Supreme Court and is associated with Dhaka Legal Practice. Writer Mushtaq Ahmed recently died in jail where he was incarcerated under the Digital Security Act. Cartoonist Ahmed Kabir Kishore is behind bars in the same case. Defendant lawyer in the case, Jyotirmoy Barua talks to Prothom Alo about legal protection for citizens and various aspects of the Digital Security Act.
Writer Mushtaq Ahmed, imprisoned under the Digital Security Act, recently died in prison. His death has given rise to protests home and abroad. As a lawyer in this case, what is your reaction?
This was a very unfortunate occurrence. He was in jail for 10 months. We do not have a sentencing policy here. There is no specific law as to how long an accused can be kept in jail without trial. We follow the criminal laws of the United Kingdom, but they have a specific law in this regard. Yet here people stay in jail for years before their trial. This is a clear violation of the law and human rights. Article 36 of the constitution states, “Subject to any restrictions imposed by law in the public interest, every citizen shall have the right to move freely throughout Bangladesh, to reside in any place therein and to leave and re-enter Bangladesh.”
A case was filed under the Digital Security Act against Mushtaq Ahmed. Under this law, the investigation report is to be submitted within a specific time. Has that been done?
The law says that the investigation report is to be submitted within 60 days. If necessary, the investigating officer can take permission from the authorities to extend this by another 15 days. But after 75 days, there is nothing they can do. Then it is in the jurisdiction of the tribunal. Pre-trial punishment cannot continue indefinitely. Say if the charges brought against a person are not proved and he is acquitted unconditionally by the judge, what will be done about the 10 months or more that the accused has spent in jail?
I feel there is scope to take legal action against the one who conducted the investigation against Mushtaq Ahmed. Legal action should be taken. Had Mushtaq been released earlier on bail, perhaps he would not have died in this manner. There is a huge difference between a free person and one behind bars. Mushtaq Ahmed was kept in jail for 10 months. According to the jail code, 10 months is equivalent to one year. The investigating officer submitted his investigation report on 11 January, though he was supposed to have submitted this on 20 July last year. According to Prothom Alo’s report, the six people whose statements have been mentioned in the investigation report, have said they know nothing about the matter. They had not given any statements to the police. A writer imprisoned for 10 months because of his writing, a healthy man, should not have died this way. We cannot accept this as a natural death. He was a successful businessman. He was a writer. A man like him died because of his writing. This is an irreparable loss for the nation. People’s security has been snatched away by the Digital Security Act.
So how does one address the crimes that are committed by using modern information technology?
There is no need for the Digital Security Act to ensure digital security. This law has not been able to protect anyone. If you talk about digital security, the 2006 ICT Act could be amended and used to provide this protection. Many human rights activists have demanded a repeal of certain clauses of the Digital Security Act. I feel the entire law should be annulled.
As a lawyer, tell us what is the basis of the charges brought about against Mushtaq Ahmed under the Digital Security Act?
These are vague charges, fake charges. Just to scare him. It has been said that he spread propaganda against the father of the nation, but it was not mentioned what he had said. This is just a strategy to keep mouths shut. And the allegations about anti-state propaganda are hardly plausible. The state and the government are not one and the same. Criticising the government cannot be sedition. Our courts may not have any specific ruling in this regard, but the Indian court does. In 2015, the Indian Supreme Court ruled that opposing the government and the state are not one and the same. The people have the right to criticise those who are paid with the people’s money, those for whom they vote. Cartoons regarding irregularities in Covid tests and healthcare cannot amount to treason. This is a citizen’s right.
Cartoonist Ahmed Kabir Kishore’s hearing was held on Sunday. You are fighting for him in court. The police wanted to take him on remand again. What justification is there to take an imprisoned person on remand?
After the first charge sheet if there is no further evidence, then there is no scope for further investigation. So they cannot ask to take him on remand. After submitting the charge sheet if the investigating officer receives new information, they he can ask the court to include this. There is a provision in this regard in Section 173(3B) of the criminal code. There are instances of this in Akkas Ali vs the State and Afia Khatun versus the State.
You opposed the police’s appeal for remand in court. The judge rejected the remand appeal. What was your argument?
It was not in their jurisdiction to ask for remand. If they want to ask to take anyone on remand, they have to bring him to court. The prosecution did not do so. There was no scope to ask for remand there. Kishore was in the government’s custody.
Many say that the Digital Security Act is necessary, but its misuse must be halted.
Many human rights activists say so, but I object to this. I feel that the use of this law is a misuse. The law has been devised in such a manner that that there is no scope for the accused person to receive justice. When a person is accused under this law, firstly he is socially humiliated and demeaned. Most of the clauses in this law are non-bailable. So the accused is even deprived of normal legal recourse. Most of the clauses of this law are repressive. Rather than getting into the debate of the use and misuse of the law, I will simply say this law is bad.
So how can digital crimes be prevented?
The ICT act of 2006 is still in effect. Four of its sections have been annulled. These sections can be amended and used against such crimes. The Digital Security Act has failed to prevent the use of IT to harass women and children. The relevant clauses of the ICT act can be amended to prevent digital crimes. But there can be no justification to keep the Digital Security Act.
*This interview appeared in the print and online editions of Prothom Alo and has been rewritten for the English edition by Ayesha Kabir