Why Joy is wrong about the Digital Security Act

“Without the Digital Security Act (DSA) we would not be able to bring those who incited this violence to justice,” wrote Sajeeb Wazed Joy, the son of Bangladesh’s prime minister and the government’s ICT advisor, the day after attacks took place against the Hindu community and their temples in Cumilla.

Joy’s point in making these remarks was presumably to hit back against the journalists, human rights organisations, and foreign governments who have criticised the Bangladeshi authorities over the legislation, which contained offences that had resulted in recent years to the imprisonment of hundreds of journalists and others who posted on social media critical commentary about the government, its ministers and leaders of the ruling party on social media.

But is Joy right —  that without the DSA there would be no proper accountability for those who incited this violence against the Hindu community on social media?  

The attacks followed the posting of a live video on Facebook by Mohammed Foyez (now removed), a local man who recently returned from Saudi Arabia. The video showed a local police officer carrying a copy of the Quran, with Foyez narrating as voiceover the claim that the police officer had “rescued” the Quran from being “under the feet of the idol” in a temporary Hindu temple (Mandap). Referring apparently to Hindus, Foyez said that, “They have insulted our Quran,” and he ended the video, which lasted under a minute, by saying, “Muslim brothers, you wake up”. Another person is then heard shouting in the background, “Wake up! Wake up!” 

Mohammad Foyez had only 88 friends on his Facebook account. However, within a short time, the video was shared widely and within less than an hour, large numbers of men started to crowd around the temporary Hindu temple, soon expanding to hundreds of people. Police tried to control the crowds, but were unsuccessful. The temple was attacked, and the idols destroyed.

Later in the day, there were more processions in other parts of Cumilla, which ended in the destruction of other Hindu temples. Soon, the violence spread to other parts of Bangladesh. Temples were desecrated and hundreds of houses and businesses of the Hindu minority were vandalised and many set on fire. Seven people, including at least two Hindu men, were  killed, and many more injured in the subsequent days of violence. It has subsequently been reported that CCTV footage showed a man, identified as a Muslim, placing the Quran at the temporary Hindu temple in Cumilla.

So is the government’s ICT adviser right to claim that this incident shows the need for the DSA, as it allows the authorities to prosecute the  person who posted this video?

The first point to consider is whether or not Foyez’s conduct in posting this video should be criminalised.

While there is certainly a way of describing the claimed discovery of a Quran under the feet of the Hindu god which does not deserve criminalisation, the language used in this particular video does incite harassment and violence towards the Hindu community — and incitement to violence is a well-established category of criminal offence.

The second point is whether or not the Digital Security Act is required to bring the person “who incited this violence to justice,” as suggested by the prime minister’s adviser and son.

The DSA does include an offence that would apply to this situation. A person can be prosecuted under section 31 of the act if they publish something “that  creates  enmity,  hatred  or  hostility  among  different  classes  or communities  of  the  society,  or  destroys  communal  harmony,  or  creates  unrest  or disorder.” It is a “non-bailable offence” — meaning bail is at the discretion of the courts —  and allows for a punishment of up to seven years imprisonment, a fine or both.

But the country’s 1860 penal code already contains two offences that not only would allow prosecution over the Facebook post, but matches the conduct more appropriately.

Section 505 states that, it is an offence for a person to “make, publish or circulate any statement, rumour or report […] (c) with intent to incite, or which is likely to incite, any class or community of persons to commit any offence against any other class or community.”

And Section 505A of the Penal Code also states that a person who “makes, publishes or circulates any statement, rumour or report, which is, or which is likely to be prejudicial to […] public order” has committed an offence.

Both of these Penal Code offences are similarly “non-bailable” and allow for the same punishment as the offence under the Digital Security Act.

The two penal code offences do require the police to obtain a warrant for arrest while there is no such requirement under the Digital Security Act. However, this difference is not that significant as the police can easily obtain an arrest warrant quickly from the court — indeed it is an important judicial protection. 

So Joy is wrong to claim that without the Digital Security Act, this person could not be brought to account. Foyez could well have been prosecuted under the Penal Code offences — and indeed these offences contain additional judicial protections, which are important for the rule of law.

Moreover, Joy seems to misunderstand the criticisms of this and other offences contained within the DSA. While there may be particular incidents — for example, this one involving the attacks against Hindu temples — that justify the prosecution of a person for incitement under the DSA, most circumstances that result in imprisonment under the law are not justifiable. These prosecutions involving alleged “defamation” or criticism of the state or “father of the nation”, which happen on a daily basis, involve conduct that is simply journalistic or social media critique of the government.

So the government ICT adviser should not seek to opportunistically use this tragic incident of the attack on the Hindu religious minority in Bangladesh to try and justify a law that is primarily used to simply punish those who dare to criticise his mother — the prime minister — and those who work for her.●

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