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Bangladesh High Court Show Cause on Government re Constitutionality of ICT Act Powers to Block Websites

by sacw.net, 26 July 2010

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Press Release

26 July 2010

High Court Show Cause on Government re
Constitutionality of ICT Act Powers to Block Websites

Arafat Hosen Khan and others v Bangladesh and others

Writ Petition No 4719 of 2010

The High Court today directed the Ministry of Information Communication Technology among others to show cause as to why Sections 46 and 57 the ICT Act 2006, allowing for blocking of websites and electronic communications, and providing for prosecution of certain offences, should not be held to be ultra vires (beyond the authority) of the Constitution, and in violation of fundamental rights to freedom of expression and freedom of association. The Rule has been made returnable in four weeks.

  • Section 46 of the Act provides powers for the Government to block any website on the grounds of sovereignty, integrity, security of the state, public order and safety and ‘ the prevention of incitement of any offence under the Act’
  • Section 57 establishes several offences under the Act including among others acts whereby any person who ‘sees, hears or reads any website or electronic communication and is thereby encouraged to become immoral or dishonest’ or ‘any harm is caused to the image of the country or of any person’

The petitioners are Arafat Hosen Khan, Barrister, Kazi Ataul-Al-Osman, LLM, and Rokeya Chowdhury, an LLM student at Dhaka University.

A Division Bench comprising Mr Justice Md Imman Ali and Mr Justice Obaidul Hasan issued the Rule. Ms Sara Hossain and Mr Moin Ghani represented the petitioners. Md. Motahar Hossain (Sazu), Deputy Attorney General appeared for the state.

Background: The petition was filed on 06 June 2010 challenging the ban then imposed on access to the social networking site, Facebook, and also challenging the constitutionality of Sections 46 and 57 of the ICT Act. As Facebook access was restored at 11pm on the day before the writ was filed, the petitioners did not pursue the issue of the ban in the hearing. They however continued their challenge to the ICT Act provisions, comparing it to similar, but far less draconian, legislation from other countries. They asked the Court to strike down these provisions as being unconstitutional, focusing on its being a breach of the fundamental right to freedom of expression.

Art. 19 of the Constitution guarantees the right to freedom of expression. It clearly provides that while this right may be restricted, any such restriction must be ‘reasonable’, ‘prescribed by law’ and further have a nexus/connection to specific constitutionally permissible grounds (for example, that it does not amount to defamation or incitement to an offence).

Analysing the challenged sections, the petitioners pointed out that these provisions are vague and uncertain in their terms, and incapable of definition; they provide the government with arbitrary powers as there is no objective standard or guideline to ascertain when these offences have been committed; they are unreasonable and there is no objective basis or guideline for determining when these provisions would apply; the penalties prescribed are disproportionate to the offence; they violate fundamental rights to freedom of expression, freedom of association, the right to be treated in accordance with law, guaranteed under Articles 39, 38 and 31 of the Constitution, and Article 19 of the International Covenant on Civil and Political Rights

For further information, please contact
- Arafat Hosen Khan: email: nls1081 at hotmail.com or Mobile: +8801714130360
- Kazi Ataul -Al Osman: email: kazi_osman at hotmail.co.uk or +8801711138057
- Rokeya Chowdhury: email: c.rokeya at gmail.com

Sara Hossain, Advocate, Supreme Court, shossain at khossain.com