In the last week, a number of thinkers, cartoonists, journalists have been arrested and sued under the Digital Security Act 2018 which drawn criticism from the concerned quarters of the citizens. It may be argued that it is rather unconstitutional to legitimate laws like Digital Security Act 2018 to confine freedom of expression of the citizens. The government should stop harassing the free thinkers and instead they should consider the criticisms, work on it to uphold their administrative transparency, and materialise the constitutional pledge to safeguard freedom of thoughts, conscience, and of expression, writes Nafiul Alam Shupto
FREEDOM of thought and conscience is essential to the development of human personality and every person should be free in his thought and conscience. On the other hand, freedom of speech is essential for the development and functioning of democracy.
The relationship between democracy and freedom of speech reflected significantly in Farid Ahmad vs West Pakistan, PLD 1965 Lah 135 where the court opined that without freedom of speech there cannot be any democracy. Even though freedom of the press is implicit in the freedom of speech and expression, considering its importance, the Constitution of Bangladesh has specifically mentioned it.
Recently 11 individuals including a cartoonist, two journalists, and a writer were held accountable under the controversial Digital Security Act 2018. The charges suggest that they were mostly held accountable for criticizing the current ruling political party leaders in different mediums. As a consequence, substantial outrages among the netizens have taken place.
However, this write-up will illustrate jurisprudential discussions of current practices of freedom of thought, conscience, and of speech in Bangladesh in the light of our constitution.
According to the Constitution of Bangladesh, Article 39(1) guarantees the freedom of thought and conscience, article 39(2) (a) protects the freedom of speech and expression of every citizen, while freedom of the press is assured under article 39(2) (b). But in terms of each enjoyment of each right article 39(2) has envisaged reminded seven to eight reasonable restrictions subject to the law for the interests of state security, friendly relations with foreign states, public order, decency or morality, contempt of court, defamation and incitement to an offense.
In case of Bangladesh, such restrictions often have crossed the ambit of reasonableness as the colonial mindset of government powers, resulting in vulnerability in nourishing the cultures of democracy, division among journalists and their partisan attitude have taken the grip of the press. It is perceived that all the recent arrests were made mostly under the sake of ‘state security’ to avoid constitutional accountability.
Before going further into the discussion it is necessary to take into consideration the distinction between the terms ‘state’ and ‘government’. The terms state and government are often used interchangeably in political discourse, but they can also refer to very different entities. In political geography, a distinction between the two is often not made or made weakly. The state refers to a type of political organisation in which a group of people is governed by a system of government.
The government can be differentiated from the state because the term refers to the grouping of people or the bureaucratic political structures that run the state. It is through governments that the power of state is exercised. Essentially, a state is an abstract concept describing a political unit, while a government is a body of individuals who exercise state power by creating and enforcing laws.
Constitutional interpretation of ‘state security’ generally refers to the situation when there is the apprehension of endangering state security. If the words, ideas, and actions intended to endanger the security of the state by crimes of violence, conspiracy to overthrow the government, waging of war and rebellion against the government, external aggression or war, et cetera then in the interest of state security, freedom of expression or press may be restrained.
In the case of the State of Bihar vs Sailabala, AIR 1952 SC 329 it is mentioned that advocacy of revolutionary socialism cannot be restricted on the ground of security of state unless it is accompanied by the use, or threat, of violence.
The provisions of sedition and criminal libel are also practiced to arrest and prosecute journalists and free thinkers. Sedition laws can be applied broadly with harsher penalties ranging from fines to death sentence or life imprisonment if the accused is found guilty to have undermined the Constitution. To some extent, it is clear that the concept of ‘criticism of the government’ and ‘sedition’ are fraternised by lawmakers to achieve the political advantage and also to justify their action as constitutional.
In Hector v. AG of Antigua and Barbuda,  2 All ER 103, 106 Lord Bridge of Harwich said, ‘In a free democratic society it is almost too obvious to need stating that those who hold office in government and who are responsible for public administration must always be open to criticism. Any attempt to stifle or fetter such criticism amounts to political censorship of the most insidious and objectionable kind.’ However, it is noteworthy to mention that the interpretation of our constitution nowhere suggests that the government is beyond public criticism.
In Douglas vs Jeanette, 319 US 157 case, the Supreme Court of the United States denoted that freedom of speech and expression is not confined to any particular field of human interest, but guarantees the broadest exercise of the right for religious, political, economic, scientific or informational ends. Moreover, in Schacht vs US, 398 US 58, the court hypothesised that the right to discuss public affairs includes the right to criticise the government including its defense policy and the conduct of the Armed Forces. Therefore, it may be argued that it is rather unconstitutional to legitimate laws like Digital Security Act 2018 to confine freedom of expression of the citizens under the veil of ‘state security’.
On the contrary beneath the protection of freedom of expression, sometimes yellow journalism, embedded journalism, aggressive journalism also causes restrictions of press freedom and on such occasions, journalists cannot avoid responsibility. At the same time, social media users also need to learn the limits of their means of freedom of expression. Spreading false, fabricated or distorted information or image, defamatory comments, hate speech, issuing threats through posts and messages in various forms of social media including Facebook, Twitter, LinkedIn, Instagram et cetera.
Lastly, freedom of thoughts, conscience, and of expression cannot be restricted on the ground of reasonable restriction. Without substantial freedom of thoughts, conscience, and of expression, the existence of people’s rights and privileges in all spheres of society is unimaginable in the modern era.
The government should stop harassing the free thinkers and instead they should consider the criticisms, work on it to uphold their administrative transparency, and materialise the constitutional pledge to safeguard freedom of thoughts, conscience, and of expression.
Nafiul Alam Shupto is a law graduate from North South University and currently an apprentice lawyer.
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