Amid COVID-19 pandemic in Bangladesh, increasing number of cases were filed against writers, cartoonists, artists, teachers, students, political activists and journalists under the Digital Security Act for criticising the government. Sarwar Tusher writes about the present state of freedom of speech
BANGLADESH is passing an unprecedented difficult time. The people of Bangladesh today are facing a catastrophe as a result of the dangerous decisions of the government. Their lives, livelihoods and dignity have been taken hostage by an extremely suffocating regime.
Every day we see cries for oxygen, intensive care unit and testing facility on the pages of newspapers. We see images of the affected people lying face down in front of a hospital going viral on social media. We see face of the state failing to provide minimum health care to the people. That face is horrible.
The citizens of Bangladesh have been the victims of various forms of persecution of the state for criticising the state failure to keep people safe with health and livelihood since the beginning of the COVID-19 pandemic. They are being prosecuted, arrested and even made disappeared.
Journalists are being prosecuted under the Digital Security Act and arrested for reporting on government’s corruption. There have already been a number of lawsuits and arrests for criticising the government on social media. It seems criticism of the government in social media under the current regime is a ‘crime’. Writers, cartoonists, artists, teachers, students, political activists, journalists, activists none are excluded from this list of arrestee. The Digital Security Act is being used as a tool to repress all dissents and criticisms.
In other words, the people of Bangladesh today cannot breathe both in terms of biologically and politically. The lives of the people in Bangladesh have been exposed before the oppression of an extremely violent sovereign power in an unprecedented way. Again, all the ideological tools to legitimise this oppression are more active than ever. There are also examples of government critics being compared to ‘beast’.
In this context, the question of freedom of speech and expression are being relevantly discussed in public sphere. What is the current state of freedom of speech in Bangladesh? Why and how does freedom of speech get linked with the questions of life and livelihood? Why can’t we deal with any political crisis in Bangladesh without ensuring freedom of speech? These questions involve all the ontological relationships of the people of this land.
Freedom of speech and human agency
FIRST of all, it is not possible to make any compromise on the question of freedom of speech. Because the freedom of speech is not just the freedom of talking. Freedom of speech is intertwined with human existence. Freedom of speech is the thing that has taken human being beyond his biological existence and turned him into a political animal. That is, freedom of speech and freedom of language are intertwined with human existence. Without it human cannot be imagined at the stage of development as a species s/he is at today.
Human civilisation has developed with the combination of creativity and physical labour by means of language and imagination, and all the imaginative talents and creativity of human beings have become possible because of language. No language means no transition from human biological level, no human creativity, no technical ability. So, freedom of speech is inherent in human existence. It is not ‘given’ to people by any ‘liberal’ political system. Instead, people make various social contracts, laws and constitution to facilitate this inherent freedom of speech.
These words need to be said because many people think that freedom of speech is a by-product of the ‘liberal’ political system. Of course, there is no reason to call a political system ‘democratic’ without freedom of speech, but the problem to associate freedom of speech just with the political system makes it just an affair of generosity of any ‘legitimate’ authority.
If a ‘legitimate’ authority is generous enough, we will have the right to speak, and if the authority is authoritarian, it will ‘deprive’ our freedom of speech. Such is the dominant discourse. On closer inspection, it becomes clear that the seeds of the deprivation of human innate freedom of speech are rooted in such an argument.
In this case, the desire to get back the deprived freedom of speech has to be reported to the court of those who took it away. First of all, making the unconditional element (freedom of speech) of our human existence is a matter of political claim, then we apply for a return after losing that thing. There is no doubt that in this way human agency also turns to be a matter of political will or reluctance.
Standing on this theoretical ground, we want to address all the discourses for and against freedom of speech. This is why it is so important to change the common-sense about freedom of speech and the human agency as a whole. If we begin to believe today that what is an integral part of human existence, cannot be taken away by any ‘legitimate’ authority under any circumstances, then we will realise even our basic rights as human beings do not wait for political control or approval.
Human agency is something that is beyond any kind of political condition. This agency of human being cannot be compromised for the interest of ‘absoluting’ any so-called ‘great’ political regime and without language there is no human agency. So, acknowledging freedom of speech as basic human instinct, it is acknowledging human agency.
Freedom of speech and expression has to be understood in relation to human agency. Then we can challenge the political authorities that we are not dependent on politics for the right to speak. Talking, thinking and expressing opinion is a part of our very existence. It is very important to understand the significance of these words, keeping in mind the recent political situation of Bangladesh.
Freedom of speech and constitution
AS WE mentioned earlier, no political system can give people freedom of speech. Rather, the purpose of formulating the rule of law (if any) in the modern political sphere is to enable it to contain unconditional freedom of speech. At this stage, we will examine the relevant article of the Constitution of Bangladesh regarding freedom of speech.
This is important because while the Digital Security Act is notorious for suppressing freedom of thought, conscience, speech and expression and is being sharply criticised by all quarters. Many oppose the act as they find it ‘conflicting’ with the constitution and this law seems to them ‘deprivation’ of the freedom of speech guaranteed by the constitution.
With due respect to their intention, we must say that they have assumed that the constitution inevitably guarantees freedom of speech and that there can be no provision in the constitution that can legally restrict freedom of speech!
In fact, the way in which the fundamental rights of citizens are confiscated in the constitution with ‘if’, ‘but’, ‘subject to’; if one looks a little deeper, it will be clear that; in fact, even without the Digital Security Act all arrangements have been made to take the basic rights of the citizens in the relevant section of the constitution regarding freedom of thought, conscience and freedom of speech.
The Article 39 of the Constitution of Bangladesh states how freedom of thought and conscience and freedom of speech will be ensured. According to that section:
1. Freedom of thought and conscience is guaranteed.
2. Subject to any reasonable restrictions imposed by law in the interests of the security of the state, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence —
(a) the right of every citizen to freedom of speech and expression; and
(b) freedom of the press, are guaranteed.
It has given us freedom of expression and speech subject to ‘reasonable’ restrictions imposed by law on ‘security’ of the state, ‘friendly’ relations with foreign countries, ‘public order’, ‘in the interest of decency and morality’.
Who knows what will be the disruption of the ‘security’ of the state? What will be the disruption of the ‘friendly’ relations with the foreign state? What will be the disruption of public order? And what will be the standard of decency and morality?
If all the powers are consolidated in one person, if the various institutions of the state do not have minimum autonomy, if the chief executive decides who will stay where, then the ‘insecurity’ of the government can be considered as the ‘insecurity’ of the state!
What is the point of ‘friendly’ relations with foreign countries? To say, if a Bangladeshi citizen criticises India’s ‘shoot at sight’ policy at the border, what is the guarantee that it will not be considered as destroying ‘friendly’ relations with a foreign country? India is not just a foreign country to us, it is a ‘friendly country’ too!
In the same way, if one stand by the rights of the women who have returned as corpses from Saudi Arabia and being sexually abused, criticising the Saudi state, it can also ruin the ‘friendly’ relationship with the foreign state.
Why would freedom of speech be conditional on the ground of decency and morality? No universal definition of decency and morality is possible. Arresting freedom of speech and thought subject to such a provision means keeping alive the diversity of people of different values, tastes, beliefs and disbeliefs as conflict and hatred.
If people of any ideology are in exclusive power today, they may think the thoughts and practice of any section of people is against ‘decency’ and ‘morality’. If the people of another ideology will come tomorrow, they may want to punish the previous ideology by law by declaring their various practices as ‘indecent’ and ‘immoral’.
If the lower courts are directly subordinate to the executive branch, the judges of the high courts, the chief justices are appointed by the president and eventually by the prime minister with absolute power, then you cannot expect the court to be always correct on deciding ‘decency’ and ‘morality’ in its ‘independent’ consideration. Even if it can ensure to determine ‘decency’ and ‘morality’ correctly by the law, it actually paves the way to misjudgement today or tomorrow.
So if you think when your ideology or party is in power, ‘decency’ and ‘morality’ will be the ‘correctly’ interpreted one, and if any other party is in power, it will be the ‘incorrect’ interpretation, that is not the case at all. Even if you explain it ‘correctly’, there is still a chance that someone else will come to power and explain it incorrectly.
Because, no one’s power is eternal. Today you are in power, tomorrow someone else will come. The conditional law that you think is ‘correct’ on the strength of your ‘purity’ may be used as an armour of oppression against you tomorrow.
Thus, we should challenge the monopoly of power, without judging the decision of power as ‘good’ or ‘evil’ seeing who is in power. We should understand the danger of a total unbridled authoritarian power structure. Conditional rights under such a power structure are not really rights, the whole matter becomes a matter of will or reluctance, generosity of those in power. We are certainly not willing to be dependent on those in power for any fundamental rights, are we?
Freedom of thought and freedom of speech, conscience have been arrested in this way by a regular section of the constitution! There are ‘special’ laws like the Digital Security Act as a stepping stone to our death!
Therefore, it is good to accept that the Constitution of Bangladesh does not necessarily guarantee the freedom of speech of the citizens.
We may be able to repeal the Digital Security Act with all our efforts, but we will not be able to change the anti-people legislation system by maintaining such a centralised power structure in a state system and a system of government that does not have minimum accountability to the people. Today we must go to the source of the power that makes such draconian law.
The Section 57 was abolished amid serious criticism and opposition, but only to be replaced with even more draconian Digital Security Act. We must remember that centralised unaccountable power structure is one of the preconditions of fascism. Therefore, the people of this country will no longer be liberated by keeping such a centralised and unaccountable power structure intact.
So our fight today against fascism is as much a fight against repealing anti-people laws as it is a fight against centralised irresponsible power structure. We must work for a highly democratic power structure, the power structure that will hold unconditional fundamental rights, such as freedom of speech, without being trapped in a tight chain of conditions. Corona and post-corona political situation seems to be revealing that truth to us.
Sarwar Tusher is a member of Rashtrochinta.
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