Bangladesh Defense Forum
Cyber Protection Ordinance and our flawed law-making logic
FILE ILLUSTRATION: BIPLOB CHAKROBORTY
The interim government has decided to enact the Cyber Protection Ordinance, 2024. As successor to the controversial Cyber Security Act, 2023 and the more draconian Digital Security Act, 2018, the ordinance is now under close scrutiny. Due largely to the government's expressed commitment to human rights, I became quite hopeful following the CSA's scrapping, looking forward to a draft grounded in human rights. However, the draft has failed on multiple counts, including criminalising vaguely defined "cyberbullying" and "hurting religious values and sentiments." I want to limit my discussion, prioritising depth over breadth, to the criminalisation of the latter.
Freedom of speech certainly is a qualified right and may in fact be regulated, or in legal language, "subjected to reasonable restrictions." However, human rights jurisprudence suggests that no restriction is reasonable if the "minimum core" of an otherwise qualified right gets assailed. The draft provision on hurting religious sentiments and values strikes at the very essence of the right to freedom of speech or expression. The provision is not grounded in human rights standards but in the subjective interpretation of extremely vague, uncertain, and indeterminate words and terminologies. For instance, it is not clear what constitutes "hurt" or what comes within the lucid purview of religious values and sentiment. In fact, the broad-based criminalisation also unduly shrinks the scope for critical deliberation and constructive discussions having a bearing on religion. Such a provision can make religious divisions all the more prominent and essentially undercut a tolerant culture, which is both an essential feature and a pursued goal for liberal democracies.
A popular critique of our existing constitution is that it views socioeconomic rights (e.g. shelter, food, medical care) as judicially unenforceable, hence not as rights but as principles. Curiously, however, the constitutional jurisprudence emanating from our higher judiciary is quite saturated with explanations and expansive interpretations of the socioeconomic rights. Despite the unequivocal assertion of judicial enforcement for civil and political rights (e.g. speech, association, religion), we barely have any jurisprudence on these rights. In absence of any dense normative judicial guidelines, we, therefore, are left with the constitutional provision on free speech (i.e. Article 39), which is to be interpreted in the light of the international human rights standards. Interestingly, some rights advocates have routinely critiqued Article 39 of our constitution, too, for enumerating several vague grounds as reasonable restrictions (e.g. security of the state, friendly relations with foreign states, decency). Had we had rich constitutional jurisprudence or had there been amendments to Article 39 in line with the international human rights instruments, it could perhaps have evolved into a rights-oriented tool. On a personal note, despite being critical of large-scale top-down reform initiatives of constitutional nature, I was looking forward to changes in Article 39, particularly because actors within the interim government have expressed their commitment, in particular, to free speech and free press multiple times. But with the draft ordinance now on the table, one can barely remain hopeful.
I am mindful that any advocacy in favour of free speech can be thwarted on grounds of cultural relativism. It is often claimed that in our non-Western sociocultural context, speech or expression must be regulated. What falls through the cracks is that the so-called Western international human rights instruments, too, have historically favoured regulating speech, by instating a robust hate speech regime. However, such a regime has largely been grounded in equality or non-discrimination law. As we speak of a society of shammo, manobik morjada, and shamajik shubichar, and more importantly a society free from discrimination (boishommobihin), it is perhaps not unfair to expect that our policy-legal endeavours will be grounded in the normative ideals of substantive equality and non-discrimination.
The International Convention on the Elimination of Racial Discrimination requires state parties to declare as punishable "all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement of violence against any person or group of persons of another race, colour or ethnic origin." The International Covenant on Civil and Political Rights says that "any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law." In the domestic context, a sound legal approach arguably is prohibiting speech or communication that potentially exposes a person or persons to hatred, discrimination, violence or incitement of violence, on the bases that they are identifiable by one or more of the prohibited grounds of discrimination (i.e. race, sex, gender, religion). What constitutes gender-, race- or religion-based "hatred" in the context of speech has over the years been negotiated and judicially interpreted both in the international context and across jurisdictions. In fact, by operating within the framework of hate speech and grounding its anchor in the equality/non-discrimination law, the draft provision could easily pass the test of human rights, at least on paper. However, in the current form, the draft does a great disservice to both equality law/anti-discrimination jurisprudence, and the hate speech regime.
One may say, albeit for the sake of arguing, that the draft seeks to take a bottom-up approach and start with penalising "hurting of religious values and sentiment" to thereby take an all-encompassing approach. However, criminal law does not normatively work that way. They need to be precise and certain regarding what exactly they criminalise. An important element within the state-people relationship is ensuring that individuals know what conduct will jeopardise their freedom and authorise the state to rightfully curtail their liberty (i.e. by incarcerating them). In my opinion, the words used in the draft in the context of hurting religious values and sentiment are too uncertain, vague, and indeterminate to qualify as reasonable restrictions as per Article 39 of the existing constitution, read with the international human rights standards.
Thanks to our colonial past, we deem passing of criminal laws as a rather usual business. The state, the all-powerful leviathan, can define at its whims any conduct as crime and one can be easily incarcerated for noncompliance. If anything, "reforms" ought to improve and not maintain something under a different label; as a bare minimum, reform initiatives ought to undo our obsession with criminal laws and with muzzling critical voices. In any case, legal reform initiatives can never operate within the self-same anti-human rights logics that defined our law-making endeavours in the past.
Finally, the Cyber Protection Ordinance has to be judged on its own merit and based only on its seemingly "better" provisions, we cannot de-emphasise the potentially grave impact of its problematic provisions. Based on our lived experiences, thanks to the draft ordinance's predecessor cyber security and digital security regimes, the context becomes even grimmer now. In the context of the criminalisation of "hurting religious values or sentiment," among others, changing the term security to protection seems cosmetic at best and almost deceiving at worst.
Psymhe Wadud teaches law at the University of Dhaka and is in charge of Law and Our Rights in The Daily Star.
FILE ILLUSTRATION: BIPLOB CHAKROBORTY
The interim government has decided to enact the Cyber Protection Ordinance, 2024. As successor to the controversial Cyber Security Act, 2023 and the more draconian Digital Security Act, 2018, the ordinance is now under close scrutiny. Due largely to the government's expressed commitment to human rights, I became quite hopeful following the CSA's scrapping, looking forward to a draft grounded in human rights. However, the draft has failed on multiple counts, including criminalising vaguely defined "cyberbullying" and "hurting religious values and sentiments." I want to limit my discussion, prioritising depth over breadth, to the criminalisation of the latter.
Freedom of speech certainly is a qualified right and may in fact be regulated, or in legal language, "subjected to reasonable restrictions." However, human rights jurisprudence suggests that no restriction is reasonable if the "minimum core" of an otherwise qualified right gets assailed. The draft provision on hurting religious sentiments and values strikes at the very essence of the right to freedom of speech or expression. The provision is not grounded in human rights standards but in the subjective interpretation of extremely vague, uncertain, and indeterminate words and terminologies. For instance, it is not clear what constitutes "hurt" or what comes within the lucid purview of religious values and sentiment. In fact, the broad-based criminalisation also unduly shrinks the scope for critical deliberation and constructive discussions having a bearing on religion. Such a provision can make religious divisions all the more prominent and essentially undercut a tolerant culture, which is both an essential feature and a pursued goal for liberal democracies.
A popular critique of our existing constitution is that it views socioeconomic rights (e.g. shelter, food, medical care) as judicially unenforceable, hence not as rights but as principles. Curiously, however, the constitutional jurisprudence emanating from our higher judiciary is quite saturated with explanations and expansive interpretations of the socioeconomic rights. Despite the unequivocal assertion of judicial enforcement for civil and political rights (e.g. speech, association, religion), we barely have any jurisprudence on these rights. In absence of any dense normative judicial guidelines, we, therefore, are left with the constitutional provision on free speech (i.e. Article 39), which is to be interpreted in the light of the international human rights standards. Interestingly, some rights advocates have routinely critiqued Article 39 of our constitution, too, for enumerating several vague grounds as reasonable restrictions (e.g. security of the state, friendly relations with foreign states, decency). Had we had rich constitutional jurisprudence or had there been amendments to Article 39 in line with the international human rights instruments, it could perhaps have evolved into a rights-oriented tool. On a personal note, despite being critical of large-scale top-down reform initiatives of constitutional nature, I was looking forward to changes in Article 39, particularly because actors within the interim government have expressed their commitment, in particular, to free speech and free press multiple times. But with the draft ordinance now on the table, one can barely remain hopeful.
I am mindful that any advocacy in favour of free speech can be thwarted on grounds of cultural relativism. It is often claimed that in our non-Western sociocultural context, speech or expression must be regulated. What falls through the cracks is that the so-called Western international human rights instruments, too, have historically favoured regulating speech, by instating a robust hate speech regime. However, such a regime has largely been grounded in equality or non-discrimination law. As we speak of a society of shammo, manobik morjada, and shamajik shubichar, and more importantly a society free from discrimination (boishommobihin), it is perhaps not unfair to expect that our policy-legal endeavours will be grounded in the normative ideals of substantive equality and non-discrimination.
The International Convention on the Elimination of Racial Discrimination requires state parties to declare as punishable "all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement of violence against any person or group of persons of another race, colour or ethnic origin." The International Covenant on Civil and Political Rights says that "any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law." In the domestic context, a sound legal approach arguably is prohibiting speech or communication that potentially exposes a person or persons to hatred, discrimination, violence or incitement of violence, on the bases that they are identifiable by one or more of the prohibited grounds of discrimination (i.e. race, sex, gender, religion). What constitutes gender-, race- or religion-based "hatred" in the context of speech has over the years been negotiated and judicially interpreted both in the international context and across jurisdictions. In fact, by operating within the framework of hate speech and grounding its anchor in the equality/non-discrimination law, the draft provision could easily pass the test of human rights, at least on paper. However, in the current form, the draft does a great disservice to both equality law/anti-discrimination jurisprudence, and the hate speech regime.
One may say, albeit for the sake of arguing, that the draft seeks to take a bottom-up approach and start with penalising "hurting of religious values and sentiment" to thereby take an all-encompassing approach. However, criminal law does not normatively work that way. They need to be precise and certain regarding what exactly they criminalise. An important element within the state-people relationship is ensuring that individuals know what conduct will jeopardise their freedom and authorise the state to rightfully curtail their liberty (i.e. by incarcerating them). In my opinion, the words used in the draft in the context of hurting religious values and sentiment are too uncertain, vague, and indeterminate to qualify as reasonable restrictions as per Article 39 of the existing constitution, read with the international human rights standards.
Thanks to our colonial past, we deem passing of criminal laws as a rather usual business. The state, the all-powerful leviathan, can define at its whims any conduct as crime and one can be easily incarcerated for noncompliance. If anything, "reforms" ought to improve and not maintain something under a different label; as a bare minimum, reform initiatives ought to undo our obsession with criminal laws and with muzzling critical voices. In any case, legal reform initiatives can never operate within the self-same anti-human rights logics that defined our law-making endeavours in the past.
Finally, the Cyber Protection Ordinance has to be judged on its own merit and based only on its seemingly "better" provisions, we cannot de-emphasise the potentially grave impact of its problematic provisions. Based on our lived experiences, thanks to the draft ordinance's predecessor cyber security and digital security regimes, the context becomes even grimmer now. In the context of the criminalisation of "hurting religious values or sentiment," among others, changing the term security to protection seems cosmetic at best and almost deceiving at worst.
Psymhe Wadud teaches law at the University of Dhaka and is in charge of Law and Our Rights in The Daily Star.
