Investigation and Trial

Legal shortcoming in addressing electronic issues

Gazi Mizanur Rahman | Published: 00:00, Nov 18,2019 | Updated: 00:14, Nov 18,2019

 
 

— Thales

THE Digital Security Act 2018 has primarily given its attention to a number of harmful activities that may be carried out through electronic means. The law, which has declared such activities as punishable offences, has also tried to protect the commission of such crimes through some measures. The act has prescribed the procedure of the investigation and trial of offences punishable under the law.

It has, moreover, given statutory support for establishing government agencies to combat cyber crimes. But little has been said regarding the inclusion of electronic transaction or electronic records within the periphery of other laws followed in civil or criminal justice system. Electronic communications or the handling of electronic devices may not be offences by themselves, but they may be relevant in proving people’s innocence or guilt in other cases. This flip side of the reality has not been attended to in the Digital Security Act 2018. We may consider it to be a limitation of the law.

There were rows at the time of the formulation of the Digital Security Act regarding the issue of its being repressive against the free movement of thoughts and ideas. But there was, perhaps, a small discussion on the issue of amending other criminal and civil laws. Neither of the Information and Communication Technology Act 2006 and its subsequent version promulgated as Digital Security Act 2018 has any provision that says anything about amending the other existing laws such as the Penal Code 1860, the Evidence Act 1872, the Code of Criminal Procedure 1998 or the Code of Civil Procedure 1908.

As a result, doubts surfaced as to how, when and where electronic documents on compact discs or CDs, digital versatile discs or DVDs, flash drives, hard drives, telephonic recording, video recording, sound recording, e-mails, picture files, closed-circuit television camera footage, mobile communication recording and the like may be proved as admissible facts in the court of law. Several articles and reports have been published in newspapers expressing concern about the absence of such intervention in the laws.

If we look at the legal system of neighbouring India, we find a comprehensive initiative to address the need to bring necessary changes in all relevant laws through India’s Information Technology Act 2000, enacted on June 9, 2000 and further amended in 2008. It had four schedules through which relevant sections of the Indian Penal Code 1860, the Indian Evidence Act 1872, the Bankers’ Book Evidence Act 1891 and the Reserve Bank of India Act 1934 were amended. The first schedule amended the Indian Penal Code. In most of the amended sections, provision has been made to include ‘electronic records’ within the definition of ‘documents’. The second schedule deals with the Evidence Act 1872. The definition of ‘evidence’ (Section 3 of the act) has been amended to include electronic records. The definition of ‘admission’ (Section 17 of the Evidence Act) has been changed to include electronic forms. The new Section 22A has been inserted into the Evidence Act to provide for the relevancy of oral evidence regarding the contents of electronic records. The new Section 65A says that the contents of an electronic record may be admissible. The new Section 65B lays out how the contents of an electronic record may be proved. Section 67A and 73A introduced the method of proving and verifying digital signatures. As for presumption to be drawn about such records and digital signatures, Sections 85A, 85B, 85C, 88A and 90A were added.

Now it is a point of consideration for us whether we should make necessary changes in other laws. As both India and Bangladesh follow the laws enacted during the British era, it is advisable that we should follow the process India has followed. We may examine Indian amendments and use them as far as they are applicable to the Bangladesh context. The amendment to the Evidence Act, the Bangladesh Penal Code, the Code of Criminal Procedure or other minor special laws may be proposed by the ICT Division as it is the focal point of the government’s information technology issues. Alternatively, the ICT Division may advise the ministries concerned to propose amendment to related acts to bring about the changes so that modern society can feel comfortable with them after the digital issues have been well addressed.

 

Gazi Mizanur Rahman, a former civil servant, is a writer.

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