What is wrong with the FIR against the Facebook-11

The prosecution in Bangladesh of 11 individuals is not only a serious infringement of freedom of speech, but a travesty in the use of the criminal law.

What is wrong with the FIR against the Facebook-11
May 10th, Dhaka — Bangladeshi activists campaigning for the repeal of the Digital Security Act (2018). Photo: Rashtrochinta.

On May 5th, a Rapid Action Battalion (RAB) officer filed a criminal case alleging that 11 individuals had committed offences under Bangladesh’s Digital Security Act (DSA) by posting or sharing comments on Facebook. Four of them — the cartoonist Ahmed Kabir Kishore, the writer Mushtaq Ahmed, a member of a citizens’ group Rashtrochinta, Didarul Islam Bhuiyan, and the managing director of BLE Securities and shareholder-director of Dhaka Stock Exchange, Minhaj Mannan Emon — have been arrested, refused bail and sent by the magistrate into police or prison custody. The other seven — the Sweden based journalist Tasneem Khalil (editor-in-chief of Netra News), the US-based journalist Shahed Alam, the blogger Asif Mohiuddin, and four others — named as Saer Zulkarnain, Ashik Imran, Shapan Wahid and Philip Schuhmacher — risk being arrested if the police can get their hands on them. 

All of them are accused of running propaganda or campaigning against the “liberation war of Bangladesh, spirit of liberation war, Father of the Nation, National Anthem or national Flag.”; publishing or propagating information with the intention of “tarnishing the image of the nation or spread confusion.”; and, publishing or broadcasting information which “will create hostility, hatred or adversity among people or destroys any communal harmony or creates unrest or disorder or deteriorates or threatens to deteriorate the law and order.”

The arrests and the case have been widely condemned by human rights organisations, nationally and internationally, as a serious infringement of the fundamental right to freedom of speech. The case seems to be a further significant escalation in the government’s attempts to clamp down on dissent — with a number of those accused being well known critics of the government.

The main criticism of DSA prosecutions against digital commentary is the nature of the criminal offences: they are vague and overbroad, and allow a wide range of comment, criticism and satire — ordinarily permitted in any democratic country — to be subject to a criminal prosecution. That is why so many argue that the relevant sections should either be removed from the Act or at the very least significantly amended.

However, an associated concern is the arbitrariness and politicisation of the enforcement of these offences. People are often prosecuted under the DSA even when the material they are said to have posted on Facebook or other digital platforms do not come within even the very broad reading of the DSA offences for which they are being prosecuted. It seems that the offences are commonly used as a means to arrest, harass and intimidate those who are seen by the government, politicians, and other politically connected individuals as a threat or inconvenient in some way.

The absence of proper justification for filing cases and arresting people under the DSA is often evident from a scrutiny of the First Information Reports (FIR) — the documents, filed in police stations, that set out why it is believed a person had committed an offence and should be arrested.

And the May 5th FIR against the 11 individuals is a prime example of the arbitrariness and politicisation of DSA enforcement

The first problem in the FIR involves allegations against four of the individuals — Minhaz Mannan Emon, Didarul Islam, Asif Mohidduin, and Shahed Alam. The central allegation against all eleven of the accused set out in the FIR is that by using the I am Bangladeshi Facebook page or their own Facebook profile, they have “for a long time been spreading rumours or propaganda or confusion about the father of the nation, the great liberation war and the Coronavirus [and] tarnishing the image of state/government” with the aim of “creating instability, indiscipline and confusion amongst the people of the country.”  Yet, the FIR does not state that Emon, Bhuiyan, Mohidduin, and Alam, are in any way involved in the, I am Bangladeshi page or provide any details of their own personal Facebook pages or any posts that they are said to have published. 

The second problem concerns alleged “conspiratorial conversations against the state” on Facebook messenger and WhatsApp. The FIR claims that Ahmed Kishore had these kinds of conversations with Tasneem Khalil, Saer Zulkarnain, Shahed Alam, and Asif Mohiuddin and that Mushtaq Ahmed was involved in similar conversations with Minhaz Mannan Emon and Didarul Islam Bhuiyan. But other than the vague general allegations of conspiratorial anti-state conversations, the FIR contains no information about their substance. Moreover, it is entirely unclear how any private digital conversations — assuming for the moment that they did happen — can constitute an offence under the DSA. Both sections 25(1)(b) and 31, the offences about “tarnishing the image of the nation” and creating “unrest or disorder”, requires the person to either “publish or propagate” or “publish or broadcast” the information. Whatever conversations that did or did not take place by these individuals were not “published”, “propagated” or “broadcast”, so at least neither of these offences can apply. 

This is a particularly pertinent point for Minhaz Mannan Emon, Didarul Islam Bhuiyan, Asif Mohiuddin and Shahed Alam as the only specific allegations against them set out in the FIR concern alleged involvement in these private conversations. And, notably Emon and Bhuiyan are now detained.

The third problem concerns the I am Bangladeshi page. A key allegation in the FIR is that six of the accused — Saer Zulkarnain, Ashik Imran, Ahmed Kishore, Philip Schuhmacher, Shapon Wahid and Mushtaq Ahmed are either administrators or editors of this Facebook page which contains illegal material. One would therefore expect the FIR to set out which posts on this Facebook page, constitute an offence of the law. However, the FIR provides the hyperlink to only a single post on the site which translates as: “Where and when will the special iftar mehfil for Mujib Year be held?”. Whatever one wants to say about this post, it is extremely difficult to see how one can contort its meaning so that it constitutes a DSA offence.

The FIR provided only one link to a post on the I am Bangladeshi Facebook page

The fourth problem concerns the allegations against Ahmed Kishore, Mushtaq Ahmed and Tasneem Khalil relating to their own Facebook profiles. As previously noted in an article published in the Bangladesh newspaper, The Daily Star, it is difficult to see how these men’s posts identified within the FIR come close to triggering the application of the DSA. In relation to Kishore, the FIR contains three hyperlinks, one of which does not work. Another hyperlink concerns a post, dated April 26th, containing two cartoons in a series called “Life in the times of Coronavirus”. Above the cartoons is a line stating, “The life which is poisoned by Corona shouldn’t be lived by anyone.”

The FIR provided a link to these cartoons on a Facebook page of the cartoonist Ahmed Kishore

The first cartoon shows images of two men. One with long white hair, holding a rifle, who could perhaps be the freedom fighter and health activist Dr. Zafrullah Chowdhury, founder of Gonoshasthaya Kendra, who has been involved over the past few weeks in making not-for-profit testing kits for Covid-19 and seeking government permissions in this regard. The second character appears to be the industrialist Salman F Rahman, who owns a private pharmaceutical company, and is the prime minister’s business adviser. The cartoon has Rahman stating “Zafar, you fool, we have created a kit to conquer space long ago. And you’re still stuck with your one for the earth.”

The next cartoon is titled “Kajol Kajol” in an apparent reference to the recent campaign regarding the alleged disappearance of the photojournalist Shafiqul Islam Kajol. In it, a person is shown interviewing the well-known academic and author, Professor Muhammed Zafar Iqbal. In the cartoon, the journalist asks, “Sir, when all the intellectuals are keeping their mouths shut, why are you raising your voice for Kajol?” Iqbal responds, “Don’t you know my brother’s nickname is Kajol. I thought that they were referring to my brother.”

There is nothing in these cartoons that fall within the offences for which the cartoonist is being prosecuted.

In relation to Mushtaq Ahmed, who uses the Facebook page, Michel Kumir Thakur, the FIR refers to two hyperlinks. The first one  links to a post, dated May 3rd, which shares an article (published by Prothom Alo) about a statement made by the health minister on the re-opening of garment factories. The translation of Ahmed’s Bangla comment: “After seeing this type of news, if you do not feel the anger inside, then understand that you have gone from being an ordinary person to the level of a holy man. A cockroach is also a bird and this man is also a health minister.” The last sentence is a rewording of a common Bangla proverb.

The FIR mentioned a hyperlink relating to the the Facebook page of Mushtaq Ahmed which connects to this post

The second links to a post, dated May 1st, when several newspapers had reported that an MP had tested positive for Covid-19, but had at that stage not made his identity public. The post translates as, “Is Corona a sexual disease that it affects social status? One MP is Covid-19 positive. This is why ordinary patients hide information.” 

The FIR mentioned a second hyperlink relating to the the Facebook page of Mushtaq Ahmed which connects to this post

Again, it is difficult to see how these comments justify the triggering of the DSA.

And in relation to Tasneem Khalil (the editor-in-chief of Netra News), who has lived in Sweden since leaving Bangladesh in 2007, there are three links. The first link goes to a post that translates as, “The liberation war of Bangladesh was fought under the leadership of Tajuddin Ahmed and others. Mujib of course had a symbolic leadership but it was not possible for him to lead the liberation war from the jail of Pakistan. The executive leadership of the liberation war was given by Tajuddin Ahmed and Syed Nazrul Islam. This history can be remembered on Mujibnagar day.” This is a historically accurate statement.

The FIR mentioned a hyperlink relating to the the Facebook page of Tasneem Khalil which connects to this post

Another link shares an article which appeared in Benar News, an online news portal, which has been blocked in Bangladesh. This headline of this article reads: “Leaked UN documents: 2 million Bangladeshis could die from Coronavirus” and refers to an earlier article published by Netra News about the leaked UN document. The Benar News article itself quotes the Bangladesh foreign minister saying that he had read the UN document.

The FIR mentioned a hyperlink relating to the the Facebook page of Tasneem Khalil which connects to this post

On the basis of the FIR, it is difficult to see what was the justification to arrest the four individuals under the DSA. It is therefore reasonable to assume that a case under the Digital security Act provided a pretext to arrest or intimidate these eleven people, for one reason or the other. It is of great concern that the magistrates court did not see through it and immediately provide the men bail. An independent judiciary would have seen this FIR for what it was, a means of stitching up dissenters and irritants for crimes that they did not commit.● 

David Bergman (@TheDavidBergman) — a journalist based in Britain — is Editor, English of Netra News.

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