Dhaka: International human rights organization ‘Clooney Foundation for Justice’s TrialWatch Initiative’ and Bangladesh’s research organization ‘Centre for Governance Studies (CGS)’ have called for the dismissal of cases pending under the repealed provisions of Bangladesh’s Information and Communication Technology (ICT) Act.
According to Bangladesh Sangbad Sangstha, the two organizations jointly published a whitepaper on their websites on Friday evening as per Bangladesh Standard Time (Friday morning as per American time). The press release stated that with a political transition underway in Bangladesh, now is an opportune moment to review the nation’s succession of stringent cyber laws. The interim government’s recent announcement to withdraw all ‘speech offence’ cases under all three cyber laws is seen as a positive step forward.
Bangladesh has historically enforced laws criminalizing the dissemination of ‘offensive’ or ‘false’ information, or information perceived to ‘deteriorate law and order’ or ‘hurt r
eligious beliefs’ online. These provisions have appeared in a series of laws: initially in the 2006 ICT Act, which was replaced in 2018 by the Digital Security Act (DSA), and subsequently by the 2023 Cyber Security Act (CSA).
Although each legislative change has been presented as a reform, the essence of the criminal provisions has largely remained unchanged. Amnesty International criticized the CSA, labeling it a repackaging of nearly all repressive features of the DSA and Section 57 of the ICT Act. Despite the repeal of Section 57 of the ICT Act and the DSA, over a thousand ‘speech related’ cases initiated under these laws are still ongoing, according to figures from the interim government. One such case, monitored by TrialWatch, has been pending since August 2018.
Zillur Rahman, Executive Director of CGS, emphasized the need to prosecute cybercrimes like hacking and sexual harassment but criticized Bangladesh’s cyber security laws as draconian, urging for the repeal of cases filed under them.
The joint
report-the first in a series on Bangladesh’s cyber laws-argues that the principle of legality necessitates the dismissal of all cases pending under the ICT Act, as there is no legal basis for their continuation. The report points out that when a law is repealed, the general rule under common law treats it as if it never existed. Although the DSA had a ‘savings clause’ keeping ICT Act cases alive, the CSA’s similar clause applies only to DSA cases, not to ICT Act cases.
Rebecca Mammen John, TrialWatch Expert and Senior Advocate at the Supreme Court of India, stated that cases under the ICT Act have no legal basis to continue. She argued that even in cases of ambiguity, criminal laws should be construed narrowly and in favor of the accused, meaning ICT Act cases should be terminated. The resurrection of such cases, especially against journalists, activists, and political opponents, constitutes an abuse of legal process.
Globally, provisions against ‘offensive’ information, ‘fake news,’ or information that ‘de
teriorates law and order’ are increasingly being struck down by courts, including in countries like India, Uganda, Kenya, and Indonesia. UN bodies have also criticized vague laws that criminalize speech.
Bangladesh’s interim government has a historic opportunity to reinforce the rule of law in accordance with its human rights obligations by terminating all pending cases under the ICT Act immediately.