A modest proposal to reform the DSA

It is true that prior to the passage of the Digital Security Act, the government met many times with stakeholders, including the Editors Council, of which I am a member, to discuss the forthcoming legislation.

However, despite what the government says about the act being drafted after consultations with stakeholders, with the implication that parties such as the Editors Council had input in the final form, when the act came into law, not one of our suggestions were heeded.

It is also worth pointing out that every one of the act's shortcomings was pointed out to the government, including the scope for abuse of the act.

Therefore, when government spokespeople now feign shock that the law is being abused and suggest that it is only after the law's passage that they realized the scope for such abuse, they are being less than candid.

We are at least glad that the government, through its spokespeople, has recognized the fact that the act is being abused. The question therefore is: what can be done?

Also read: Arrested in Digital Security case, writer Mushtaq Ahmed dies in jail

This question has acquired even more serious resonance with the recent death of the writer Mushtaq Ahmed in custody, the first martyr to the Digital Security Act, renewing calls for the act to be scrapped.

Unfortunately, the government has made it very clear over the past two and a half years, that it has zero intention of scrapping the act, however unpopular the law may be among the general public.

Furthermore, since the ruling party in Bangladesh is by definition in full control of the parliamentary process, there is really no way to get the DSA repealed if they dig in their heels, which they have shown every sign of doing so.

It doesn't matter what anyone says: it is clear that the DSA is here to stay.

What then, realistically, might be done to ameliorate its worst abuses?

Also read: Protest erupts over author Mushtaq's death in jail

The solution, it seems to me, made all the more urgent in light of the recent death of Mushtaq Ahmed in custody, is relatively simple: let us seek a compromise on the procedural aspects of the law.

The worst aspect of the DSA is that 14 of the 20 causes of action contemplated by it are non-bailable, and that even where bail is available, it is routinely denied, as was the case here, with bail being denied to Mushtaq a shocking six times.

So let us propose the following amendment to the DSA: (1) no provision of the DSA should be non-bailable, and (2) it should be stipulated in the law that the offences contemplated under the act are not the kind that warrant the denial of bail.

In this sense, it is not the DSA per se which is the problem, but the punitive use of denial of bail, which abuse is a cancer on our entire legal system, going far beyond the DSA.

Also read: Mushtaq death: 35 injured as police baton-charge demonstrators 

Right now our jails are filled with tens of thousands of accused who have been convicted of nothing yet are kept behind bars, sometimes for years on end. It is unconscionable. As a general rule, we should see the pre-trial custody of an accused as a rights violation that the courts should resort to in only the most serious of cases.

For bailable offences, bail should be granted as a right and it should require an extraordinary finding for bail to be denied. And for many crimes, including those contemplated by the DSA, it should not be within a judge's discretion to begin with.

Is this a compromise with respect to the DSA that all sides can live with?

It solves the very worst element of the DSA while leaving the government's beloved law otherwise intact, and if it had been in place Mushtaq Ahmed might very well still be alive.

One person dead as a result of the DSA is one person too many. Surely we can all agree that a simple step that would ensure that no one else ever has to die in custody as a result of this flawed piece of legislation is the very least we can ask for.

Zafar Sobhan is Editor, Dhaka Tribune.