A Jhenaidah court rose to the occasion to protect a man who fell prey to abuse of power by a local public official and reminded that a citizen's right to privacy must not be violated even when prosecuting under the Digital Security Act.
The victim of another arbitrary abuse of the law, in this case, is Mohammad Ajijul Haque, 27, an ordinary man who on a fine morning witnessed the beating of a bus driver by a mobile court led by the local upazila nirbahi officer (UNO). He took a few pictures of the incident on his mobile phone and shared those to a private WhatsApp group.
For this "crime", Ajijul would be charged with defamation, publication of false information, and disrupting law and order – three non-bailable charges under the controversial Digital Security Act (DSA).
As soon as the mobile court found Ajijul taking the snaps, it held him, confiscated his phone and took screenshots of the group messages.
After being behind bars for 21 days, Ajijul was granted bail by the Jhenaidah court.
"The case charges are wrong," said the Jhenaidah District and Sessions Judge's Court in an order alongside granting the bail. "Those are contradictory to the constitutional rights too."
Acting judge of the court Md Showkat Hossain said, "Police should have carried out a proper investigation even before taking the sensitive case."
According to the court, a public servant like UNO cannot snatch the mobile phone of a citizen and see their private messaging contents.
On the accusation of defamation and disrupting law and order, the court said no one except the sender and recipient have access to a message since WhatsApp is an end-to-end encrypted private messaging application. Such communication can neither defame anyone nor incite violence.
"A false or defamatory information will only be treated as a crime only if it gets published. But end-to-end encrypted messaging is not meant for publishing. Rather, the Constitution guarantees the personal privacy of citizens," noted the court.
'Don't know about the law, don't even need to'
Lutfur Rahman, office assistant of Kaliganj UNO office and also the plaintiff of the case, told The Business Standard that UNO Sadia Zerin asked him to file the DSA case and he only followed the order.
"I do not know, and even need not know, what the court has ordered. The UNO will take care of it," said the plaintiff.
Asked whether he is aware of the DSA, Lutfur Rahman said he did not know about the law and "did not even need to".
UNO Sadia Zerin of Kaliganj upazila of Jhenaidah told The Business Standard, "The law has been formulated for use. I thought the case needed to be filed under the DSA."
Asked whether the grounds of the case were logical, she said, "It seemed the man needed to be brought to book for obstructing government work. Such obstructions affect the service."
The UNO said she had received the court order and did not want to comment on it.
Abul Kashem Biswas, sub-inspector at Kaliganj Police Station and the investigating officer of the case, said they sent Ajijul's phone to the Criminal Investigation Department (CID) of police seeking a forensic report.
'Be more careful about human rights in DSA cases'
Since a private WhatsApp message is not a public post like a Facebook post or published contents, no one else except the sender and the recipient has the right to see such personal communication, said the court referring to Article 42 of the Constitution.
The court also cited Article 43 of the Constitution that says citizens will enjoy the right to personal privacy.
Referring to the Bangladesh Telecommunication Regulatory Act, it said personal communication can be intercepted by authorised officials only for state security or to maintain public order. No one else has the right to see what messages an individual has sent to his or her friends or acquaintances.
To be eligible to be charged under sections 25, 29 and 31 of the DSA, the court said the criminal acts have to be publicised or disclosed.
"Unpublished or secret private messages that are not open to all can in no way be considered as publicising or disclosing in the three sections. A Facebook status with "only me" visibility option is not a publication, and similarly any private or group messaging does not fall in the publication category. Therefore, such messaging will not be considered as a crime," said the court.
"Moreover, since the seized image and the message mentioned in the case statement are not such contents that can incite violence or create anarchy, the incident should not be prosecuted under a strict law like the Digital Security Act," added the court.
As the three sections of the DSA are related to articles 39 and 42 of the Constitution, prosecution under these sections should be more careful and sensitive so that the action does not contradict the Constitutional rights, according to the court.
It appears that the case filing did not maintain the required cautionary measures, the court said and asked its office to send a copy of the order to the Jhenaidah district magistrate, superintendent of police, and officers-in-charge of all police stations in that district.
A power show by the executive magistrate, say amici curiae
During the bail hearing of Ajijul, the court sought opinions of local lawyers and legal experts on the case.
Khan Akhtaruzzaman, president of the Jhenaidah Bar Association, told the court that it appeared the executive magistrate of the mobile court had behaved very intolerantly and had violated the constitutional rights to privacy.
Advocate Ekramul Haque, a senior member of the bar, said the constitutional rights of the accused had been violated in the whole process.
Senior lawyer Rabiul Islam opined that the case had been filed illegally in the first place as the accused did not make any public post.
Senior lawyer Mofizul Islam said police should have investigated if anyone was actually beaten or assaulted by the mobile court before taking the case.
"In fact, the accused has only exercised the right to freedom of expression mentioned in Article 39 of the Constitution in case of an assault by the mobile court. The case should not have been filed without any investigation," said Mofizul Islam.
The public prosecutor told the court that the Digital Security Act should have been applied with more caution and prudence.
What exactly happened that day?
On 2 August, Ajijul Haque said he was on his way to Nimtala bus stand at around 11am. He saw people crowded around a bus driver who was fined Tk6,000 by a mobile court. The driver had been requesting the UNO to reduce the fine.
Subsequently, the fine was reduced to Tk2,000, but policemen who were with the court assaulted the bus driver.
As Ajijul took some pictures of the beating and sent them to his friends, he was dragged away by police. His mobile phone was taken away and screenshots of the messaging were collected.
He was pushed into the vehicle of the UNO and officially handed over to police at around 3pm. During the quizzing inside the vehicle, he was severely abused why he took the pictures.
The man was later arrested in the DSA case and produced before the court with a seven-day remand plea.
On 24 August, he was granted bail after a 21-day imprisonment.
"An accident had taken place in my life as now I am a criminal in the eyes of the society," Ajijul Haque told TBS Friday.
There is also a financial woe too as Haque had borrowed a hefty amount to walk out of the jail. He said the legal battle has cost him about Tk90,000 so far — an amount which his current income takes one and a half years to cover.
He, however, expressed satisfaction over the court's order in the case.
"Courts are the last hope for people like me. However, my fears still prevail as the UNO and her husband are powerful government officials," he added.
Ajijul said police are not cooperating with him even after the court order. Rather, he is not able to lead a normal life until the final report is submitted to the court.
The accused's lawyer Md Azizur Rahman said taking pictures of a mobile court is not a crime, rather the mobile court beating someone is.
"We often see such courts conduct drives in front of journalists while many media outlets broadcast those live.
"It is the civil duty and rights of the accused to take pictures and express his opinion on the judgment," he added.
Executive magistrate cannot avoid liability: Experts
Ali Imam Majumder, former cabinet secretary and a public administration expert, said, "Since the incident is no longer within the local administration as the judiciary got involved, I think the court has given the right decision."
He, however, declined to comment on whether the UNO could avoid the liability.
Noted jurist Shahdeen Malik appreciated the court order. He said the Ministry of Public Administration should look into whether the UNO had violated the code of conduct while running the mobile court.
"If she is found guilty for abuse of power, demotion, suspension or administrative action can be taken against her," added the Supreme Court lawyer.
Barrister Jyotirmoy Barua said, "Since no incident took place that suggests any violation of section 25, 29 and 31 of the Digital Security Act, there are no scopes for filing the case under the sections. Moreover, the High Court has already ruled that there will be no lawsuits under the Digital Security Act based on personal messaging.
"Without any heeding to the HC order, the magistrate violated the law. In this case, it cannot be the excuse that she does not have any understanding of law. So departmental action should be taken against her," the human rights defender noted.