Jyotirmoy Barua, Bar-at-Law, is a lawyer at the Supreme Court of Bangladesh and is also associated with Dhaka Legal Practice. In an interview with Prothom Alo, he speaks about the human rights situation in the country and legal recourse for the people.
BGB has filed a Tk 1 billion (Tk 100 crore) defamation suit against a woman employee of BLAST (Bangladesh Legal Aid and Services Trust). What is your reaction to this?
A criminal offence was committed against an individual, but here the defamation suit has been filed by Border Guard Bangladesh (BGB). According to Section 499 of the penal code, a defamation suit can be filed if any person defames an individual. There is no mention of any organisation. There is no precedence of such a case in the past.
Journalist Shafiqul Islam alias Kajol, detained under the Digital Security Act, has been granted bail in a case. Will he be released from jail?
There are three cases against him under the Digital Security Act. He has been granted bail in the case filed by the Magura member of parliament Saifuzzaman Shikhar. Then a Jubo League leader filed two cases against him. The first was on 9 March and he went missing from 10 March. He was later picked up at Benapole. Though he was granted bail in the case filed under Section 54, he has not been released. We have argued that the entire arrest procedure was unlawful.
What does the law say about the investigations?
The Digital Security Act maintains that investigations must be completed within 60 days. This can be extended by 15 days with permission from the authorities. If that is not possible, an appeal for time can be made in court.
There is one investigating officer in all three cases. The investigating officer was appointed on 11-12 March and 75 days were completed in May. He did not appeal to the court for further time and so he cannot investigate the case. The police do not have the authority to extend the time. The court asked the IO to appear along with the evidence. Evidence has been collected in the case under a law that is from the British times. The rules followed globally for digital evidence collection has not been followed here.
The Digital Security Act says that if any person publishes any matter on a digital format that is defamatory, that will be taken into consideration. If the accused does something that can be seen on the Internet worldwide, there is no need to collect information from his laptop. And if there is need to collect proof from the accused, he must be given a copy of this and they will keep a copy.
You want the Digital Security Act to be abolished. So how can a person seek redress in the case of defamation?
There are certain unnecessary structures built into the Digital Security Act. The ICT act is sufficient to deal with an individual’s defamation. Journalists have been vocal against Section 32 of the Digital Security Act. It particularly hampers those who are involved in investigative journalism. If there is a matter of bribes being taken in an office, a journalist can’t ask for information in advance. Section 32 has curtailed rights of the media.
It is not only journalists who face problems with this act, but researchers too. It closes the doors on pursuing knowledge. But more cases have been filed against journalists outside Section 32. During these coronavirus times, many UP chairmen and members have filed cases because of reports about relief pilferage and misappropriation. If they were defamed as they claim to have been, then cases can be filed under Section 499 of the penal code. But there is more interest in filing cases under the Digital Security Act because the accused can be detained indefinitely. Punishment is being given in less than 3 per cent of these cases.
The highest penalty in the cases filed against Shafiqul Islam is a three-year-prison sentence. He was missing from 10 March and then was sent to jail. If he is proven to be innocent, who will compensate? The lower court does not grant bail under the Digital Security Act. Shafiqul is unwell, yet he has not been given bail.
If the state commits wrong, how will the people seek justice?
The National Human Rights Commission could play a role in this regard. In India and other countries, these commissions do so. But in our country, this commission is just for show. Instead of being active, they remain silent. The objective of the British rule was to curb people’s rights. They created oppressive laws wherever they went. Some laws were enacted during Pakistan times too. We came up with a new constitution in 1972 where Article 149 stated that all the laws that had come into effect so far, would remain in force. That means we are ruled by the British and Pakistani laws. We must get rid of this situation.
There has been no ‘gunfight’ over the past two months and no one has been killed. Don’t you think, from a human rights angle, this is a positive development?
There have been all sorts of discussions about gunfights ever since the Sinha killing. A kind of pressure has been created. After a former officer of the security forces was killed in police fire, they are being cautious in applying the law. Even so, I will say it is positive that there have been no gunfights in two months. Hopefully it does not resume under any other excuse. If you create a Frankenstein, it will only turn back on you.
But many heinous criminals are being released through loopholes in the law.
If we accept that the prevailing laws are not effective, then updated laws and judicial system can be a solution. Extrajudicial killings cannot be an answer.
What do you think about the Speedy Trial Act?
This is selective justice and I am never in favour of this. It is discriminatory for some cases to be conducted under the Speedy Trial Act, and some not. Anyone seeking legal redress has the right to justice.
Questions have arisen regarding the jurisdiction of the mobile court and the issue of freedom of speech has also been raised in this regard.
Firstly, it has not been right to include the 1973 printing press act with the mobile court. It will not be able to stand if anyone challenges this on behalf of journalists. It is possible to get proper directives in this regard. However, highlighting this argument would lend legitimacy to the mobile court. I am in favour of entirely removing mobile courts. This act is contrary to the verdict in the Masdar Hossain case. It curbs the independence of the judiciary. The verdict in the Masdar Hossain case separated the judiciary. Some authority to mete out justice remained in the hands of certain persons. The judicial system changed after 2006. There are questions concerning the competence of those given authority in the name of the mobile court.
What is the state of freedom of speech in these corona times?
The freedom to speak out is extremely important, particularly in these times. People would benefit from a free flow of information. But restrictions on information have increased in these times. Many have been oppressed. A group of our friends were monitoring relief distribution. We had drawn up a comparison with the 2016 household survey, on the economic situation and state of relief in various places. There were more poor people in Kurigram, but less relief was distributed there. We spoke about providing proportionate relief. Two of the reports were posted on social media and so one of our friends spent a long time in jail under the Digital Security Act. This is where the steady shrinking of the freedom of speech has reached.
Have public interest litigations decreased in the upper court?
Such cases have decreased due to the coronavirus situation. Then there is a matter of fear too. Difficulties in communication have also hampered filing such cases.
The 16th Amendment was abolished, but there is no Supreme Judicial Council either. Hasn’t this shut the doors on the accountability of constitutional bodies?
The problem here is that if a law is abolished, the previous law does not automatically come back into effect. It must be reinstated through a gazette notification. The Supreme Judicial Council was dissolved and the 16th Amendment was brought about. The court abolished this. Until the government issues a notification, a sort of vacuum remains. The state has filed a review but even after so long, there has been no decision. So a lack of accountability prevails.
