Freedom of press vis à vis contempt of court law in bangladesh

Freedom of Press vis-Ă -vis Contempt of Court Law in Bangladesh

Submitted By:Shimu Biswas ID NO-LLM 090100348 Semester: Fall Program: LL.M (1 YEAR) NUB

Submitted To:S.M.Masum Billah Assistant Professor of Jagannath University, Dhaka & Visiting Faculty, Dept.of Law Research Monograph Course Code-LLM 6400 NUB DATE- 1st January 2010

Chapter 01 Introduction

South Asian countries have had a variable democratic history since their respective emergences from British colonial rule in the late 1940s. It was reflected in the region’s political diversity such as monarchical rule in Nepal, long-running civil war in Sri Lanka, alternating military and civilian regimes in Bangladesh and Pakistan, and India’s established democratic system. The wave of democratization that swept across South Asia in late1980s and early 1990s heralded a resurgence of the debate on press freedom. As Bangladesh started its democratization process through the transition from military rule to civilian rule in late 1990s, the fundamental relationship between press of the freedom and emerging democracy was realized and integrated in the debates that the growth of democratic institutions depends upon an independent press because it is the press which can pursue democratic goals and objectives only in the ways that are permitted by the environment in which they operate.

Davis asserts that ‘‘restrictions on the press which hamper the press’s functioning are believed also to hamper the functioning of the democratic system itself. The primary goal of this paper is to focus on the nature and operation of press regulations in Bangladesh. The majority of the regulations used to limit press freedom of Bangladesh have their origins in the colonial period’’. 1 During the process of desalinization, the major governing instruments were retained and are available to the Bangladesh government for control of the press. This study is historical and archival in nature and seeks to investigate how these regulations limit media freedom and how they impinge on the media’s roles in advancing the interests of democracy. In this regard, this study examines only key press regulations in Bangladesh. Salam states is that press freedom valued in democracy because of the inherent value it has in safeguarding democracy. There is an intricate link between democracy & press freedom. Legal constraints are presently a tropical issue to the nature and composition of the media fraternity in Bangladesh. Successive governments in the country have moved to consolidate power and to promote policies, which were retained from the colonial period in a number of statutes. Most of the current laws were passed during the British colonial regime. Hence their intentions are not necessarily suitable for a society striving for democracy. Some laws have a tendency to prevent disclosure of information embarrassing to the government, information that has nothing to do with state security or 1

Jeff Haynes, Democracy in the Developing World: Africa, Asia, Latin America and the Middle East (Cambridge: Polity Press 2001), 107.Visit date-02-10-2009

public order. In this regard, scholars should not ignore those laws, which can in effect perform the function of major press regulations such as Official Secrets Act, The Special Powers Act, The Printing Presses and Publication Act, The Code of Criminal Procedure, The Penal Code and so forth. 2 Freedoms of the press are the guaranteed right in our constitution subject to some limitation for the interest of the security of the state and securing the administration of justice. Even where such press freedom is constitutionally guaranteed the question may arise what is meant by such freedom. It must no doubt include printed matter of all kinds and not merely newspaper but it also include other printing and or reading materials “Including books, pamphlets, small poster, magazines, booklets etc’’. Which are or may be printed in the press. This freedom extends to the editorial comments, discussion of the government affairs, and conduct of the public authorities the form of government and the manner in which to operate.3 In democratic society press and the media play contemporary role for mobilizing the opinions of the people to ensure justice. Article 39(2) of the constitution of Bangladesh guaranteed the right to freedom of thought and conscience, freedom of speech or expression and freedom of press subject to reasonable restriction imposed by law in relation to contempt of court. These rights ensured by the constitution are inalienable right of every citizen. In our constitution ensures freedom of speech and freedom of press under article 39 of the constitution. It is an in alienable right of every citizen and it is only subject to a reasonable restriction imposed by law and subject to contempt of court. It has been held that freedom of speech is a valuable right to every citizen in a democratic policy but it is not an unfettered right but subject to creation limitation and reasonable restriction imposed by law. 4 The constitution of Bangladesh guaranteed one side the right freedom of press and another side restricts their right making provision of the contempt of court. Even-though the Contempt of Court Act 1926 does not define as to what substantially tantamount to contempt But every individual citizen have the right to know what is the state of organ of each organ of the republic including the judiciary in respect of their functions and in discharge of their duties. Because such power of the state functionaries in different organs of the republic have been delegated by the sovereign people of the public through the constitution embodiment of the solemn expression of the will of the people. In American Chief Justice Wilmot note (Edn. 1802) stated that, the contempt powers ought not be used in attempts to silence the voice of the sovereign people of the Republic and their right to uphold their state functionaries 2

Jeff Haynes, Democracy in the Developing World: Africa, Asia, Latin America and the Middle East (Cambridge: Polity Press 2001), 107.Visit date-02-10-2009

3

4

New York Times v U.S.713; Mills v Adabama, 384US214

Salimullah v State, 44DLR (AD) 309

accountable, including these that are in the Judiciary by misusing and misinterpreting the laws on contempt so as to use it shield or cloak against the sovereign people. No doubt about to say role of press is inevitable in modern society. It plays a significant role as a “watch dog” for the law enforcement machinery of the republic and the role of law .The former chief justices Latifur Rahman in a article title a “Accountability of judges” published in 1999 BLD 96, reconfirmed the role not the press as a watch dog over the Judiciary. 5 But they should refrain from publishing anything which demeaning. Lowering the prestige and integrity of the Judiciary. Now the Judiciary is independent that’s why independence of Judiciary and administration of Justice should be treated with utmost respect and deference by all concerned. The dignity, prestige and image of the Judiciary and that of supreme court must be kept, maintained and protected by avoiding any comments demeaning it or lowering it in the estimation of the public at large. The ease of Aziza Khatun v. State it has been held that. It is therefore necessary that a law of contempt must exist. It gives protection to all, Judges parties, witness and the public. The offence of contempt of court is court is coeval with the administration of law by the state and the idea is that no tribunal can function properly unless it is allowed to keep it dignity and unless it has the power to enforce discipline and respect in its administration of Justice within its own precincts and to punish these who interfere with the dignity and with the course of its administration of justice. In other words “the law of contempt is a device to restore the balance in the scales of justice when upset by unauthorized interference with process of law and punishment which may lead to a cul de sac has never been, by itself, the end of law. 6 Freedom of press and contempt of court is now very controversy issue. Frankly speaking one works as a check and balance of other. The press is reselection and promotion of human rights in all democratic nations around the world. It has a great responsibility to protect and promote human rights by projecting the issues concerning human rights in its news and investigative reports. Freedom of press becomes issue because it is an important condition with which advancement and protection of human rights will be impossible. It is right to every citizen to know about the happing which surrounding them and the more reliable sources from which they get it press. It is the duty of the press to publish true, authentic reports news based on facts not in fiction. It also a duty of the every citizen as well as press to uphold the dignity of the judiciary and not publish any thing which malicious and libelous. According to Art 39 freedom of speech, press is tolerated so long as it is not malicious or libelous. This restriction imposed sole purpose of that everybody should maintained and respect the independence of judiciary dignity, prestige and image of the court. If any malicious and libelous act is published then the confidence over judiciary is prelude down which is never be expected. Moreover, in most the countries the role of press is sometimes undermined by the law of contempt of court,

5

Latifur Rahman ‘s article title ‘’Accountability of Judges” 1999 BLD 96.page-103

6

Latifur Rahman’s article title “Accountability of Judges” 1999 BLD 96page-103

which cans restraint, the press from playing its role in an effective manner. 7 The courts enjoy wide power commit any person involved in the working of the press for contempt of court. It is a very controversial issue. Some may wish to arrange that restriction on freedom of press may prevent society from ascertain the truth on matters of debate, others may seek freedom to speak, write and read as an aspect of each individual’s right to moral independence. This paper will try to resolve such controversy.

Chapter-02 Historical Background

2.1 Historical Background of Press Laws: In this subcontinent, which now comprises Bangladesh, India and Pakistan, the name Mr. James Augustus Hicky is remembered as the founder of newspaper, Mr. Hicky used to introduce himself as “the Printer to The Honorable Company,” i.e. the East India Company. His two-sheet newspaper, Bengal Gazette or Calcutta General Adviser, criticized the servants of the East India Company His two-sheet newspaper, Bengal Gazette or Calcutta General adviser, criticized the servants of the East India Company in abusive language. He did not even spare Warren Hasting the Governor General and his wife. He had to suffer a lot for his abusive criticism of the Company servants published in his newspaper. He was deprived of the privilege of circulating his newspaper through the General Post Office. He was also prosecuted in a number of libel cases 8.

After Hicky, a few persons published several newspapers but all of them had to assure the Governor General that they would never go against the regulations of the Company. For a long time, there was no law or regulation in respect of publishing newspapers. It was in 1799 that regulations were first made asking the newspapers to print the names of the publisher and the editor and to submit the printing materials for a prior scrutiny. Deportation was made the punishment for violation of the regulation.

During this period James Silk Buckingham proved himself a valiant fighter for the freedom of the press. Lord Hastings was convinced to some extent by the tireless campaign of Mr. Buckingham and relaxed some of the existing restrictions. Raja Ram Mohan Roy in his three papers also continuously advocated for the freedom of the press. John Adam who became Governor General of India after Lord Hastings, took a different view and issued an ordinance requiring that every be printed under license from the Governor General. Publication of the newspaper without license was made punishable.

Under the regulations, the magistrate had the power to attach and to dispose of the unlicensed printing 7

Akkas Ali Sarker, article title “Freedom of Press & Contempt of Court” page-32 , A Study of Human Right’s Perspective .

Abu Nasr Md Gaziul Haque’s “Mass, Media, Laws & Regulations in Bangladesh”, Published by Asian Mass Communication Research & Information Centre. Page-15.

8

press. Penalties were prescribed for non-compliance of the regulations. 9 During the period of Lord Bentinck and Sir Charles Metcalfe, a more liberal attitude was shown to the press. Sir Metcalfe was an ardent advocate of the liberty of the Press. Consequently, the Bengal Regulations of 1823 and Bombay Press Regulations of 1825 and 1827 were repealed. A new act was passed in 1935, which was made applicable to all the territories of the East India Company. Under the new act, the editor, printer and publisher were to give only a declaration on the place of the publication. In 1957, Lord Canning introduced Act XV of 1857 to regulate the establishment of printing presses and to restrain the circulation of printed books and papers. Under the new act any observation or statement impugning the motives or designs of the British Government either in England or India or anything tending to bring the said Government into hatred or contempt or excite disaffection were prohibited.

In 1878, the Vernacular Press Act was passed to bring the publishing of newspapers in the local languages of the subcontinent under “better control”.

In 1908, the Newspapers (Incitement to Offences) Act was passed. This empowered a magistrate to seize a printing press if he was convinced that the newspapers printed any material therein, which contained any incitement to murder or to act of violence or to an offence under the Explosive Substance Act. For the failure of this Act the Indian Press Act 1910 was passed. This Act required a security deposit by every person having a printing press. Further there was provision by forfeiture of the deposit in all cases where there was anything published directly or indirectly, by inference or suggestion.10 There was mild agitation among the patriotic people against the Indian Press Act of 1910. Mr. Gokhale and Mr. R.N. Mudholkar, members of the Select Committee of the Legislative Council, expressed their note of dissent against the Act. They severely criticized the Indian Press Act of 1910. After the bomb attack on Lord Harding’s, the provisions of the 1910 Act were further tightened and fresh declarations were demanded for various minor reasons, which led in turn to a demand for the repeal of the Indian Press Act. In 1931, the Indian Press (Emergency Power) Act was passed, in which the local Government was empowered to forfeit the security and where no security and where no security had been deposited, to declare the press to be forfeited. In the early 1940s, there was the August movement of 1942 in India and also the mass uprising in 1945 and 1946 against British imperialism, which encouraged the press to be more vocal and free. After the partition of India, although it was expected that the press would enjoy more freedom, in fact, the press of Pakistan in the late 1940 was pro-Government. In 1965, the Pakistan Government promulgated the defense of Pakistan Ordinance restricting the freedom of the press altogether. The Daily Ittefaq, the New Nation Press were penalized for criticizing the Government. The history of media law traces its origin to the last part of the 18th century when media laws were introduced to protect the interests of the British 9

Abu Nasr Md Gaziul Haque’s “Mass, Media, Laws & Regulations in Bangladesh”, Published by Asian Mass Communication Research & Information Centre. Page-16.

10

Supra note. Page no- 17

rulers and thirstier, the Pakistani rulers. In Bangladesh, the situation is no better as will appear from the passages that follow.11

2.2

Historical Background of Contempt of Court Law:

In England, after the Norman Conquest the common law system emerged wherein the king was the sole dispenser of justice and all courts adjudicated dispensed justice, between the subjects as the representative of the king. The origin of the law of contempt is quite ancient which was evolved even before the emergence of common law system. In India as well as in western countries the king used to be considered as the fountain of justice. He held all the three powers the legislatives administrative and the judicial. Even when a judge used to decide legislatives administrative and the judicial. Even when a judge used to decide a dispute between two citizens he was considered as the mouth piece of the king and the judicial pronouncements were considered as the utterance of there sovereign, the defiance of which was considered to be contempt of the king and not of the court. With the passage of time and with the establishment of constitutional monarchy in England the court has assumed it authority under the crown although its power of adjudication has assumed greater dimension. In British India as colony of Great Britain the same law and same procedure were followed as were followed in England, with the passage of time and after the partition of the sub-continent a tremendous development of the democratic organs took place and the concept of separation of power which means the three organs of the state, namely the legislature, the executive and the judiciaryfound its place and this doctrine is technically called tracheotomy of power. In India during the British rule the High courts were established under the later patent and the power to punish a condemner was given to the High Court. However there was still some doubt as to the power of High court to punish condemners. To remove the aforesaid doubts the Contempt of Courts Act 1926 (Act 12 of 1926) was enacted and the said Act was amended by the contempt of court Amendment) Act 1937 and it was made applicable to all the provinces of British India. This Act comprises only 3 sections. Section 1 of the Act contains its title, extent and commencement; section2 gives power to the High Court Division to punish contempt of court and section 3 limits punishment for contempt. 12

11 12

Supra note. Page no-19 The Contempt of Court act, 1926. Sec.1, 2 & 3.

Chapter-03 Freedom of Press 3.1

Definition of Freedom of Press:

Press and freedom both are mingled with each other. In general, freedom of press means freedom of speech, freedom of opinion, freedom of thought and conscience. The relation with press it’s that, to publish such rights through. News paper or printing book what is press liberty is defined by different angle-which areIn the Webster dictionary as the right to publish information or opinions without governmental restriction subject only to the laws of libel, obscenity, Sedition etc. In the broadest scene freedom of the press means no previous censorship any prosecution for free expression other than on widely accepted principles of the general law, and no interference with lawful distribution or conveying information.13 The liberty of press covers printed matter of all kinds and not merely newspaper periodicals. Black the liberty of press says Black stone consists in laying no previous restrain upon publications and not in freedom from consure for criminal matter when published. 14 This liberty said lord Mansfield in Dean of st. Araphs cases, consists in printing without any previous license, subject to the consequence of law. Alexander Hamilton said the freedom of press is the right to publish with impunity, truth, with good motives, for justifiable ends though reflecting on government, magistracy or individuals. 15 Bangladesh press commission in a report state that right of freedom of expression is an in divisible right of the people. Freedom of express comprised with freedom of speech and freedom of press and these three are based on same principle. 16 Thus, freedom of consists of the right to publish views not only of the newspaper, but also of its correspondent and others.

3.2

Objectives of Freedom of Press:

The press and media played an important role as a “watch dog” from the earlier time. It played a historical role during the war of liberation, the views expressed in their needs papers are always propeople and it always contains feature, which are constructive criticism of various government programmers and police. Their roles are most complementary and supporting in mobilizing the opinion to ensure justice. They have some specific object by which it runs its business:

•

To Information

•

To education

13

Frank Thayer, Legal control of the press (The Foundation press. Inc. Brooklyn, 1956) Page -1

14

Bl.Comm IV, 151

15

People v. Cronwell (1804) 3 Johns 9 (N.Y) 337

16

Shekhar Sudhangsu Ray’s article title “ Sangbadikata; Sangbadik & Sangbadpara”1994 1st edition, 21 FEB.1994 2nd edition, page-112, Published by Mrs.Hemangini Roy, Dhaleshwari Prokashani, Dhaka, Bangladesh.

•

To persuade

•

To entertain

In addition, it has three some other purposes which area.

Promotion of democracy and pluralistic societies.

b.

Strengthening of transparent, accountable efficient and effective national Govt.

c.

Reinforcement of the rule of law including fair and accessible legal and judicial system.17

3.3

Duties of Press in Relation to Court:

Mark Toaild said, every day two sun are risen one is morning sun another is associate press (means press sun). The whole world illuminated by sun, like sun the press is also lighting the every body’s life by removing all dark in the society. That the Invective journalism has a great effectiveness, which brought to public notice and they’re by mobilized public opinion for justice against crimes. These roles of press and media in perhaps the most effective ingredient that strengthens the hand of the judiciary in doing justice against the powerful. So, the press and media have plenty of duties in regard to court, which are catalyst as thusi)

It is a duty of true and responsible journalist to strive to inform the people with accurate and impartial presentation of news and their views after dispassionate evaluation of the facts and information received by them and to be published as a news item.

ii)

Newspapers are under no compulsion to publish remarks offensive to court in bold heading. They should exercise restraint in reporting matters which might have a tendency to court reflection on judiciary of country. Supreme court accepting unconditional apologies of newspaper and discharging notices issued to them court, however placing on record it displeasure at lack of sense of responsibility shown by respondent sews papers in publishing statement which prima facie amounted to contempt of court. Court also expressing hope that in future press would exercise due care and caution in giving publicity to such matters INLR 1978 criminal1650.

iii)

That the press must refrain form published any libelous and malicious comment, which tar image the court and hurt harm the efficacy of the justice delivery system.

17

C.H. Chowdhury’s “Thirty Years of Bangladesh Politics”, The University Press Limited, 1st Published 2002.page-99.

iv)

If is every aspect and every moment dignity, prestige and integrity and image of the court shall be maintained in utmost respect.

v)

The report must publish in good faith and bonafide in public interest and without malice.

vi)

No new exposed of which cause to break the confidence of the public upon judiciary.18

Lastly it is the duty of the press to strengthen the hard of judiciary.

Chapter-04 Contempt of Court.

4.1

Definition of Contempt of Court:

“The phrase "contempt of court" does not in the least describe the true nature of the class of offence with which we are here concerned… the offence consists in interfering with the administration of law; in impending and perverting the course of justice… It is not the dignity of the Court which is offended - a petty and misleading view of the issues involved - it is the fundamental supremacy of the law which is challenged." 19 It has been said that the law of contempt is of ancient origin yet of fundamental contemporary importance (Miller: Contempt of Court: 1976). Contempt of court certainly has a long history -contempt us curiae is said to have been recognized phrase in English law since the 12th century (Fox: The History of Contempt: 1927). It is said to have its origins in the medieval devolution of royal powers to the courts from a monarch who was believed to be divinely appointed and accountable only to God .Be that as it may, it seems clear from the earliest legal history that common law courts in England have assumed the power to coerce those who obstruct the power to coerce those who obstruct the

administration

of

justice.20

One result of this continuing development and concern to protect the many facets of the administration of justice is that there are many forms of contempt. One commentator (Joseph Moskovitz: Contempt of Injunctions: 1943) has described contempt as "The Proteus of the legal world assuming an almost infinite diversity of forms", but equally it can be said that contempt of court is as diverse as are the means of interfering with the due course of justice.

18

C.H. Chowdhury’s “Thirty Years of Bangladesh Politics”, The University Press Limited, 1st Published 2002.page-103.

19

Johnson v. Grant. (1923 SC 790).

Http;//www.enwikipedia.org/wiki/contempt of court. Visit date-14-10-2009

20

4.2 Nature of Contempt Proceeding:

Any willful disobedience to, or disregard of, a court order or any misconduct in the presence of a court; action that interferes with a judge's ability to administer justice or that insults the dignity of the court; punishable by fine or imprisonment or both.

There

are

both

civil

and

criminal

contempt’s;

the

distinction

is

often

unclear.

A judge who feels someone is improperly challenging or ignoring the court’s authority has the power to declare the defiant person (called the contemnor) in contempt of court. There are two types of contempt-criminal and civil. Criminal contempt - It occurs when the contemnor actually interferes with the ability of the court to function properly - for example, by yelling at the judge. This is also called direct contempt because it occurs directly in front of the judge. A criminal contemnor may be find, jailed or both as punishment for his act.21 Criminal contempt of court is generally committed in following ways: (a) contempt by publication, (b) contempt in the face of the court and (c) disobedience to judgments and orders of the court including undertakings given by a party to the court. As Lord Diplock said in AG v Leveller Magazine Ltd (1979 AC 440 at 449): " They all share a common characteristic: they involve an interference with the due administration of justice either in a particular case or more generally as a continuing

process.�

Civil contempt- It occurs when the contemnor willfully disobeys a court order. This is also called indirect contempt because it occurs outside the judge's immediate realm and evidence must be presented to the judge to prove the contempt. A civil contemnor, too, may be find, jailed or both. The fine or jailing is meant to coerce the contemnor into obeying the court, not to punish him, and the contemnor will be released from jail just as soon as he complies with the court order. In family law, civil contempt is one way a court enforces alimony, child support, custody and visitation orders, which have been violated. However, many courts have realized that, at least regarding various procedural matters such as appointment of counsel, the distinction between civil and criminal contempt is often blurred and uncertain.22 One clear distinction is between criminal and civil contempt of court. The distinction between the two is that civil contempt involves disobedience to a court order or breach of an undertaking in civil proceedings, whereas a criminal contempt of court is committed either when there is contempt in the

21

Http;//www.enwikipedia.org/wiki/contempt of court. Visit date-14-10-2009

22

Http;//www.enwikipedia.org/wiki/contempt of court. Visit date-14-10-2009

face of the court or there is interference in the course of justice. Criminal contempt of court brings with it intention or men sera.

4.3. Purpose of Law of Contempt: One of the basic principles of justice is that a person is entitled to a fair trial free from prejudice. No system of justice can be effective unless a trial fair to both sides is ensured and there are many rules of law and practice intended to support this principle. Among them are the rules of natural justice, for example, that no man shall be a judge in his own cause. The fairness of trials can be adversely affected by all kinds of conduct and publications. A subtler but no less important aspect of law of contempt is scandalizing a court. Public faith in the proper administration of justice and in the authority of the law, which is essential for an ordered society, is of course promoted and supported in many ways. The law of contempt gives one kind of support by providing a sanction against scurrilous abuse of judges or allegations that a judge or court is biased. Both scandalizing the court and the type of criminal contempt involved in prejudicing one particular trial are sometimes referred to as constructive contempt’s.23 4.4. Contempt of Court & Freedom of Press discussion: One aspect of contempt that deserves special mention is to protect and maintain the authority and integrity of the courts. Although there is a public interest in doing this, the rules thereby imposed also may impede and ultimately conflict with another public interest or fundamental right, namely, freedom of discussion which is a part of freedom of speech and freedom of the press (Article 39 of the Bangladesh Constitution).

Freedom of discussion is an important public interest for as Lord Simon said in AG v Times Newspapers Ltd (1974: AC at 315): " People cannot adequately influence decisions which affect their lives unless they can be adequately informed on facts and arguments relevant to the decisions."

It is not easy to reconcile these two public interests. On the other hand, with the advent of newspapers with large circulations, radio and television, there is arguably a greater need of vigilance to maintain the authority of the courts, on the other hand freedom of speech is part and parcel of democracy.

It is abundantly clear that democracy cannot flourish where one group is able to suppress the voices of another. The democratic environment to which people of Bangladesh aspire is a complex system of checks and balances with various components including the legal system and the media, performing 23

Http;//www.enwikipedia.org/wiki/contempt of court. Visit date-14-10-2009

vital functions. Another function of the media is arguably to pursue truth through investigate journalism.

Chapter-05 Theoretical Discussion

The concept of a `free press’ has gained new momentum in the new climate in Bangladesh regarding the role of the media in the process of democratization. As in other locations in the world, the media must become part of a national public discourse which can act as agenda-setters by bringing to the fore issues that affect people’s lives and trigger public debate. The debates on press freedom in Bangladesh revolve around the concept of democracy and the law. They are centered around expectations on what the media can and should do in the democratization process. Press freedom it has been argued, is an important ingredient in the democratization process. The state should be accountable to society by being transparent in its activities. Democracy has been dominated by liberal ideas regarding the distribution of information by various forms of media through throughout its development and these have been influential to the late 20th century nature of democratic theories. 24

5.1 The Liberal Free Press Theory:

One of the earliest known and most famous defenses of liberty of the press was John Milton’s speech to the English Parliament in 1644. In this speech, known as ‘Areopagitica’, Milton attacked the Licensing Order of 14 June 1643. In his speech, he argued against the use of censorship on the grounds that man is provided with reason and talents to choose between good and evil. He also used strong arguments against the institution of censorship and prohibition of the press and insisted that restrictions of the right to print should be considered evil. The doctrine of press freedom as practiced today is a product of classical liberal political philosophies that began to emerge in17th century Western Europe and later in the United States, in particular in the early 19th century. Milton’s Areopagitica (1644) offered major arguments for freedom of the press. The press was seen as an extension of man’s ability to think and express his thoughts. Areopagitica, according to Negrine was intended as a reply to those who maintained that granting the press its freedom would pose threats to the stability of the state. It was part of the arguments against the powers of the state over what could be published and what ideas would be tolerated. Milton’s views in favor of freeing the press from state or any other forms of control were based on the idea that censorship and control of ideas inevitably resulted in a loss of an element of truth. He found free debate essential to religious truth.

Individuals could only choose between truth and falsehood if they had access to both. He also 24

Robert Picard, The Press & the Decline of Democracy (London: Greenwood Press, 1985), page-12

affirmed that free and human government results only from "free writing and free speaking”. Milton was however not in favor of full freedom of the press from state regulation. Other theorists such as Jeremy Bentham similarly argued, "liberty of the press has its inconveniences, but the evil which may result from it is not to be compared to the evil of censorship”. 25 In his Two Treatises on Government (1690), Locke drew attention to the advantages of making political decisions in an atmosphere of public disagreement. The philosophy behind Locke was the public debate rationale for press freedom.

Thomas Jefferson (1804) also argued that of all instruments responsible discovering the truth in any given situation; the most effective is freedom of the press. Smith states that Jefferson was one of those persons advocating the marketplace of ideas concept - the proposition that truth naturally overcomes falsehood when they are allowed to compete. John Stuart Mill’s famous treatise On Liberty (1859) also continued with the classical liberal arguments on the benefits of freedom of speech and the press on the discovery of truth. Mill expanded the liberal tradition found in Milton and Locke into a broader concept of freedom of the press. Freedom of the press derived from his concept of individual liberty when he described ‘liberty of thought, from which it is impossible to separate the cognate liberty of speaking and writing’. Mill, like Milton, had a great influence on the debate on press freedom.

Classical writings provided much of the theoretical foundation for the development of the twentiethcentury theory of freedom of the press. Their influence extended to contemporary theorists like Robert Picard (1985), James Curran (1991), Judith Lichtenberg (1990), John Keane (1991), and a host of other Western thinkers. Picard argues that ‘a free press is essential to permit individuals to freely exchange ideas and information in order to promote the public interest’. 26 He also argues that the developmental process of press freedom is continuous in the democratization process. The right to freely discuss public issues and public officials is regarded by Curran (1991) and Lichtenberg (1990) 20 as a core to democracy. They collectively advance the concept that the function of press freedom is to give citizens opportunities for participation in decision-making through the process of open discussion. Hossain argues that it is high time that the legislators in Jatiya Sangsad (Bangladesh Parliament) discuss and review the laws that concern the press. In this regard, freedom of the press should not be subject to the whims of a particular political party that happens govern any one country at any one given time in history. In addition, Ahmed notes that the most dangerous threat to freedom of the press in Bangladesh and in the region of South Asia is the social intolerance. When the truth starts biting somebody or a group of people, they too often resort to violent methods in seeking remedy. This happens far too regularly as a democratic culture has not yet taken firm root in Bangladesh. Unfortunately most of the violence seems to emanate from the nation’s political parties.

Unless Bangladeshi society is completely transformed into a democratic society, this threat will continue to mount constant threats to the press. Bangladeshi media scholars Gaziul Hogue, Golam 25

Robert Picard, The Press & the Decline of Democracy (London: Greenwood Press, 1985), page-13

26

Robert Picard, The Press & the Decline of Democracy (London: Greenwood Press, 1985), page-14

Kibriya, and Mahfuz Anam have noted that successive regimes of various ideological stripes willingly kept most of the colonial press regulations for controlling the press to serve their own vested interests.

Alan T. Wood argues that citizen’s journalists in Bangladesh are for the most part free to express views with which the government disagrees. However, they must constantly live under the specter of an official crackdown. The animosity, which exists between the two dominant political parties, has poisoned Bangladesh politics and set back the progress of stable democratic institutions in Bangladesh for a number of years. In the minds of most democratic activists, a free and open press is critical to the question of national institutional growth. They remind themselves of the words of John Street who, like many other Westerners, contends that a free press is defined as medium, which allows for a diversity of ideas and opinion. The media are ‘free’ precisely in the sense that they are not subject to centralized control. Any control of content represents a loss of freedom. In Bangladesh, this freedom is precious and certainly unstable in absence of any thing like a Freedom of Information Act or Access to Information Act in Bangladesh democracy stands thwarted and transparency proves meaningless. Freedom of the press is guaranteed under Article 39(1) of Bangladesh Constitution if the information itself is restricted, then the significance of freedom of expression is diminished. To fully examine the existing law pertaining to the media in Bangladesh let me employ a legal perspective.

27

5.2 Legal Theories and Free Press: There is little doubt that classical liberal political philosophy had an influence in the development of media law. The influence can be seen in the constitutions of most Western countries. The doctrine of press freedom & freedom of speech embodied in the First Amendment of the Constitution of the United States (1791) which reads; “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press ” and in Article 11 of the Declaration of Rights of Man and Citizens of the French Constitution of 1789 and other European constitutions was a product of classical political liberal philosophy. In Britain, the dispensation with state licensing of the press in 1694 was a result of Enlightenment thought spread by the liberal and capitalist middle classes. Nelson and Teeter argue that prior to this dispensation English printers presented their copy to church and state authorities before setting it in type. Censors approved, disapproved or modified the manuscript issues. Legal thought and practice ushered press freedom into the arena of human rights press freedom became part of the bundle of fundamental rights that defined true liberty. The question of press freedom later became one of weighing an individual’s rights against government perception of the public interest. In Bangladesh, no tangible steps have been taken by any government to free the press, except for lifting of censorship imposed by the various stripes of military regimes. Successive governments echoed kind words about exercising 27

Judith Lichtenberg, Democracy and the Mass Media: A Collection of Essays (New York: Cambridge University Press , 1990).page-365

freedom of the press but often turned the other way when things were published that irritated the ruling classes and consequently they reprimanded the press. The restrictive regulations, which govern the press, still exist in Bangladesh.28 Chapter-06 The Present Media Situation in Bangladesh 6.1 Press & the successive governments: Bangladesh (formerly East Pakistan) became independent on December 16, 1971 and Bangabandhu Sheikh Mujibur Rahman became the President of the country. He started to rebuild the war-torn country depending largely on a sense of dynamic leadership and political charisma. At the beginning of his regime (1972-73), The Bangladesh Press enjoyed considerable freedom. But by 1973, the picture began changing. Mujibur replaced the 1961 Pakistani press Ordinance with the Printing Presses and Publications (Declaration and Registration) Act. Under this new Act, newspapers were subject to licensing. Other influential journals were confiscated by the regime. The assassination and overthrow of Bangabandhu Sheikh Mujibur Rahman in August 1975 brought a brief respite for the troubled press. The new government under President Khondakar Mushtaque Ahmed reversed the confiscation process and returned the Daily Ittefaq and the Daily Sangbad (News) to their owners along with gradually permitting others to resume publication. Yet another military coup toppled Mushtaque within months, and a new government came to power with General Zia Rahman in control. This military ruler instituted authoritarian rule for a decade and a half. Some of newspapers returned to government management and others were under constant dictation through official orders.

After the assassination of General Zia in 1981, the process leading to martial law was reinforced in March 1982 by General Hossain Mohammad Ershad. He ordered the suspension of a number of newspapers. With the return of a democratically elected government in 1991, the situation changed a little. The interim government introduced some amendments to the Special Powers Act and Printing Presses and Publications Act, which relaxed some of the boundaries on the press. Later the Khaleda Zia and Sheikh Hasina governments did not fulfill their ‘Three-Alliance Framework’ to repeal or amend the regulations, which infringed on freedom of the press. It worthwhile to note here that Sheikh Hasina government formed a Committee on the Autonomy of Bangladesh Radio and Television as part of a commitment under the stated Framework, but the report of the committee has not yet been implemented.29

28

29

Reazuddin Ahmed’s “ Freedom of The Press & Expectation of the People of Bangladesh”. Page-109

Golam Kibriya, The Press in Bangladesh and Issues of Mass Media (Dhaka: Sunday Publications, 1985), page 21-22.

6.2 Media Organizations: The Bangladesh Federal Union of Journalists (BFUJ) and Dhaka Union of Journalists (DUJ) have been looking at the working relationships of practicing journalists and their employers. The primary objective of these bodies is to improve the working conditions of journalists and to fight for the removal of barriers in the execution of their duties. These barriers include laws that relate to the gathering and dissemination of information in and around Bangladesh. The press Institute of Bangladesh, popularly known as PIB, is an institute set up by the government to provide professional training to working journalists. The National Institute of Mass Communication (NIMCO) is another institute set up by the government for the training of journalists, those employed mainly in television and radio. The Bangladesh Center for the Development of Journalism Commission (BCDJC) is a nongovernment organization, which works with media research, and journalism training organizations.

Mass-line Media Center (MMC) is another non- governmental organization that works on the issues of human rights, good governance and local press in the coastal districts. These organizations provide civil society support for the development of a free and independent press. In 1974, the Bangladesh press Council was formed for the purpose of encouraging press freedom and preserving what little of it existed as well as working for the improvement of the standards for newspapers and news agencies in Bangladesh. It was founded on the principle that the media are fundamental to the existence of democracy. RSF (Reporters Sans Frontiers), a Paris-based watchdog in its Network Mission Reports noted that the press Council was created to defend the ethics of the journalism profession. But for the last twenty years, the press Council has not taken a bold stance against governmental interference.

Transformed into a tool controlled by successive regimes, and incapable of enforcing any of its infrequent decisions, the press Council has protected neither the country’s press, nor its citizens.

Khaleda Zia’s administration has done nothing to safeguard the institution’s independence and credibility.30

6.3 Analysis of Major Press Regulations: I) Official Secrets Act: In Bangladesh there are laws, which actually permit public officials to decline to divulge information to the media. The most notorious of these is the Official Secrets Act [Chapter XIII & Act No XIX] of 1923.The Act has a British colonial inheritance, which is the exact replica of the (English) Official 30

Golam Kibriya, The Press in Bangladesh and Issues of Mass Media (Dhaka: Sunday Publications, 1985),page -34

Secrets Act 1911. Sections 3, 3(1), 5, 5(2), 14 set out the prohibitions and offences, which pertain to journalistic performance. According to these provisions: Any person who has in his possession or under his control any secret official code or password or any model, article, document or information which(a) relates to or is used in a prohibited place or relates to anything in a prohibited place; (b) has been made or obtained in contravention of the provisions of this Act; (c) has been entrusted in confidence to him by a person holding an office in the service of the state; or (d) has obtained or to which he has had access owing to his position as a person who holds or has held office in the service of the State or as a person who holds or has held a contract made on behalf of the state or a contract the performance of which in whole or in part is carried out in a prohibited place or as a person who is or has been employed under a person who holds or has held such an office or contract; and who(e) Communicates such code, password, model, article, document or information to any person, other than a person to whom he is authorized to communicate it, is liable to prosecution. 31 The primary purpose of the legislation is to protect the secrets of the state, which include matters related primarily to defense and economic interests. Though the intention of the legislation is seemingly justifiable in any modern state, the composition of the Official Secrets Act in Bangladesh super cedes any democratic principles. The Act makes it an offence to communicate to the media any information no matter how trivial it may be even if information in question as no impact on national security or public order. It is tempting for government departments to use the Official Secrets Act to prevent publication of information merely because any kind of disclosure could be potentially embarrassing. Mr. Justice K. M. Subhan supports the thesis that the Official Secrets Act of 1923 has too often been used by various administrations to suppress the freedom of the press. He had found it regrettable that the press behavior has not been empowered in law or given special privileges in regard to accessing official information or public documents. In the final analysis, he draws the conventional line that the right to information is recognized in Western countries and is considered as a human right in a democratic setting.

Critique As the Official Secrets Act stands, government officials cannot pass information to the media without authorization. When the media need information from specific departments they have to put their questions in writing and these questions have to be sent to the Ministry of Information, which in turn forwards them to concerned departments. As per government rules no official can give information to 31

Official Secrets Act 1923, Ministry of Law, Justice and Parliamentary Affairs (Secretariat, Dhaka: Bangladesh Government Press)

the journalists excepting the minister or secretary of any ministry. The process as one might gather, is quite restricting.

II) Special Powers Act: Sections 16, 17 and 18 of the Act, in the name of prohibition of prejudicial acts, is another agent which in effect curtails liberty of the press. This version of the Special Powers Act was passed on 9 February 1974 (Act No. Of XIV of 1974). Act XVIII of 1991 has modified this Act up to the 26th February 1991.The above sections of the Act provide that media personnel responsible in the view of the authorities for prejudicial reports shall be punishable with possible imprisonment for five years. 32 These statutes further provide that the government shall have the power to prohibit publication of newspapers or periodicals containing prejudicial reports (any report, true or false, of a prejudicial act).

The Act further allows the government to impose pre- censorship on any publication. Government has the power to pre-censor or prohibit any publication and place the editor or the publisher of the publication in jail. Even reports that are true, should they offend the ruling authorities are subject to these provisions? The Special Powers Act is a very repressive law. Bhuiyan and Guarantee argue that Sections 16 (prohibition of prejudicial acts, etc), Sec.17 (proscription of certain documents) and Sec.18 (regulation of publication of certain matters) of the Act enables the government to harass journalists and close down newspapers, thereby curtailing severely the liberty of the press. They hold the view that application of these provisions in peaceful times violates the provisions of the national constitution, which guarantees fundamental rights. The Act also empowered the government to detain without trial, to pre-censor or prohibit publications, and to jail editors or publishers for prejudicial reports, whether true or false. Such “offences’ were also non-bail able. So how widely are these laws enacted? On October 1, 1998, Interior (Home) Minister Major Rafiqul Islam informed the Bangladesh National Assembly that some 692 people have been arrested under the Special Powers Act 1974, and confined to different jails in various parts of the country. He noted that constitutional limitations on the right to liberty had been supplemented by specific legislation namely the Special Powers Act 1974, that provided for preventive detention.

Critique The use and abuse of the SPA in the name of protecting security interests has resulted in a steady pattern of human rights violations. The expansive definitions of prejudicial acts" allow considerable scope for their abuse. Many scholars have also echoed the view that this Special Powers Act legislation contains some undemocratic clauses, which hinder freedom of expression and the press and are thus an impediment to democracy itself. They have underscored the urgency to reform this 32

Special Powers Act, The Bangladesh Gazette, Ministry of Law, Justice and Parliamentary Affairs (Secretariat, Dhaka: Bangladesh Government Press, 1974).

restrictive legislation. Section 15 of the Act dealt with sabotage and sections 16, 17, 18 dealt with curbing press freedom. Section 19 and 20 curtailed the freedom of association and these provisions the Government was authorized to impose control over such associations, which would act in a manner or be used for the purpose of prejudicial to the maintenance of public order. The main objective of the Act was the preventive detention of those who violated the above provisions and were considered to be hostile to the state and its agencies. 33 III) Printing Presses and Publications Act: The introduction of licensing system for the newspapers in the subcontinent dates back to British colonial rule as do most other acts dealing with various aspects of freedom and democracy or lack thereof. It was John Adam; the acting governor general of India who introduced the system in March 1823. Adam intended no one should publish a newspaper or a periodical without having obtained a license from the Governor-General-in- Rammohan Roy, filed a petition in the Supreme Court in an attempt to block Adam’s initiative. But the court rejected the appeal in April 1823, saying: ‘India was not an independent country, so the laws and rules consistent with an independent state cannot be applicable in India. As a result, the Adam’s regulation, known in the history of sub-continental journalism as Adam’s Gag, became law. Moving into more modern times, we see that the Printing Presses and Publications (Declaration and Registration) Act, 1973 (Act No. XXIII of 1973) was passed to provide for the legality of keeping of printing presses, and the printing and publication of newspapers and for registration of books. The 1973 law has vested the authority of issuing the license, or if need be the canceling the license as well. The legislation empowers the District Magistrates in Section 20 of the Act to cancel the authentication of the declaration and under Section 20A, the Government may declare certain publications forfeited and to issue search warrants to enforce such activity. This Act was a crude imitation of an ordinance promulgated by the head of the Council, signed by the Chief Secretary. Six Indians, including Dwarka Nath Thakur and erstwhile military ruler of Pakistan, General Ayub Khan. The government of Sheikh Mujibur Rahman scrapped Ayub’s law but retained the old licensing system for printers, publishers and editors of any book, newspaper or irregular sheets as stipulated in Ayub’s ordinance against which Bengalis fought for about a decade. Ullah recorded that parliament debated the Printing Presses and Publications Bill on 19 September 1973 and passed the bill on the same day on a voice vote acceptance of a minor amendment from the Treasury Bench and rejecting Opposition demands to solicit public opinion. 34 Although the ruling party the Awami League was committed to scrapping the old press law the new 33

Special Powers Act, The Bangladesh Gazette, Ministry of Law, Justice and Parliamentary Affairs (Secretariat, Dhaka: Bangladesh Government Press, 1974). page-54

34

Mohit Moitra, A History of Indian Journalism (Calcutta: National Book Agency, 1993), page-32

one was in essence a duplication of the old and it had Ayub Khan’s imprint all over it. Using the provisions of the Presses and Publications Ordinance 1973, the government closed down the weeklies Mukhapatra, Spokesman, Lalpataka, Haq Katha, Charampatra, Desh Bangle, Swadhikar, Swadhinata and Nayajug. Distressed by this action, an independent Member of Parliament, Abdullah Sarker said: “It is nothing but another black law. The journalists will not be able to express their independent opinion. There will be only a blue print filled in with the praises for the government. The aim of the present Presses and Publications Bill will be to publish news directly by the Government.”

Critique There have been some deviations in the application of the Printing presses and Publications (Declaration and Registration) Act, 1973. These deviations are customarily made, generally to serve the purpose of the executive branch of government and others who may be exercising administrative powers. It should be noted here that under Section 12 of the Act, the District Magistrate holds power to authenticate any declaration and he is the sole and final authority in this respect. But now in Bangladesh in practice, any application is sent to the Ministry of Home Affairs which decides after police enquiry whether a declaration shall be authenticated and the newspaper be permitted to be published. Undoubtedly, this is a gross deviation from the provisions of existing laws. It can be argued with some credibility that decisions are made on political as opposed to professional considerations. In other words, a friendly attitude to the person or persons signing a declaration is a good thing to have. In the final analysis, this kind of activity clearly supports the trend of limiting the publication of newspapers and periodicals by the govt. .

IV) Penal Code: The Penal Code of 1860 (Act No. XLV of 1860) prescribes punishment for offences committed within and beyond Bangladesh, which endanger the national security, the public peace and the public morale. Offences under Sections 123A and 124A are now being tried sections of the Penal Code deal with offences endangering the security of the state. Sections 153A and 153B of the Penal Code provide that expressions promoting enmity between classes or inciting students to take part in violent political activity call for penal action. Section 295A of the Penal Code provides punishment for expressions which hurt religious feelings of the citizens of Bangladesh. Section 171G provides punishment for furnishing false statements in connection with an election. Sections 292 and 293 prescribe punishment for obscene exclusively by the Special Tribunal under the Special Powers Act of 1974. These two publications, similarly Sections 499 and 501 deal with the offences of defamation and libel. Furthermore, the punishment prescribed for this type of offence has been made more severe

by requiring a sentence of two years to seven years. 35 By amending Section 505 and by introducing Section 505A the Penal Code has the following provisions: 505A. Prejudicial act by words etc. Whoever (a) by words either spoken or written, or by signs or by visible representations or otherwise does anything, or (b) makes, publishes or circulates any statement, rumor or report, which is likely to be prejudicial to the interests of the security of Bangladesh or public order or to the Maintenance of friendly relations of Bangladesh with foreign states or to maintenance of supplies and services essential to the community, shall be punished with imprisonment for a term which may extend to seven years, or with fine, or with both.

Critique The amendment of the above noted section of the Penal Code also put restrictions on freedom of press. The theoretical purpose of the Penal Code is to protect the safety or interests of Bangladesh.

Punishment for the violation of the law is a maximum imprisonment for seven years, or a substantial fine or both. Some provisions of the criminal procedure code of 1898 as A to G of Section 99 and Section 80, also Sections 499, 500 and 501 of the Penal Code of 1860 are deterrents to press freedom as well. The only difference between this set of procedures and that under Section 32 of the Special Powers Act, 1974, there was an embargo on the matter of granting bail. Whereas under the amended Code of Criminal Procedure and Penal Code no such restriction has been imposed. Further, the government also amended the Printing Presses and Publications (Declaration and Registration) Act, 1973, and established the “Press Appellate Board", whose decision shall be final in matters of authentication and cancellation of authentication of publication. Through the amendment of the Printing Presses and Publications (Declaration and Registration) Act, 1973, in establishing the press Appellate Board, some limited freedoms of the press were intended. However, the amendment of the Code of Criminal Procedure and the introduction of Section 505A of the Penal Code has the potential to negate such freedom.36 V) Code of Criminal Procedure: The Code of Criminal Procedure, 1898 (Act No V of 1898) was introduced to define acceptable and workable procedures relating to the investigation and eventual trial for criminal offences. The government has amended the Section 99A of the Code of Criminal Procedure as well as 99B, 99D and 35

Penal Code 1860, Ministry of Law, Justice and Parliamentary Affairs (Secretariat, Dhaka: Bangladesh Government Press).

36

Penal Code 1860, Ministry of Law, Justice and Parliamentary Affairs (Secretariat, Dhaka: Bangladesh Government Press).

Schedule II of the Code of Criminal Procedure under the Code of Criminal Procedure (Third Amendment) Ordinance, 1991.37 Critique Section 99A of the Criminal Procedure Code empowers the government to forfeit newspapers containing seditious matter or matters which promote feelings of hatred between classes or outrage the religious feelings of the citizens and to issue search warrants for seizing them. The penalty for breaking this law is a maximum jail-term of 2 years or a fine or both.

VI) Newspapers (Annulment of Declaration) Ordinance: This ordinance was passed on 13 June 1975. It annulled all the newspapers but it came into force on the 17t June 1975. Sections (2) and (3) of this Ordinance read as follows•

Annulment of declaration of certain newspapers – Notwithstanding anything contained in the Printing Presses and Publications (Declaration and Registration) Act, 1973 (XXIII of 1973) (hereinafter referred to as the said Act), or any other law for the time being in force- (a) the declaration made and subscribed the said Act in respect of any newspaper, except the newspapers mentioned in the Schedule, shall, upon the commencement of this Ordinance, stand annulled; and (b) after the commencement of this Ordinance, no declaration under the said Act for the printing and publication of any newspaper shall be made and subscribed except by or on behalf of the Government or with the permission of the which may be granted subject to such conditions as it may deem necessary in the public interest impose.

•

Cancellation of Declaration for breach of conditions – Where a declaration in respect of a newspaper has been made with permission under section 2(b), the Government may, by order, cancel the declaration for the breach of, or failure to comply with, any condition subject to which the permission was granted.

VII) Martial Law Orders: President and Chief Martial Law Administrator system put the press under a tough martial law regime known as Section (15) of the Martial Law (Seventh Amendment) Regulations, 1976 it states •

Penalty for criticizing Martial Law – Whoever by word, either spoken or written or by signs or visible representation or otherwise criticizes the imposition, operation or continuance

37

Code of Criminal Procedure 1898, Ministry of Law, Justice & Parliamentary Affairs (Secretariat, Dhaka; Bangladesh Govt. Press).

of Martial Law or brings of attempts to bring into hatred or contempt or excites or attempts to excite disaffection towards the Chief Martial Law Administrator or any other Martial Law authority shall be punishable with rigorous imprisonment for a term which may extent to ten years, and shall also be liable to fine.

•

Penalty for criticizing Martial Law – Whoever by word, either spoken or written, or by signs or visible representation or otherwise criticizes the imposition, operation or continuance of Martial Law or brings or attempts to bring into hatred or contempt or excites or attempt to excite disaffection towards the Chief Martial Law Administrator or any Zonal Martial Law Administrator or any other Martial Law Authority shall be punishable with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine. 38

Chapter-07 Some Issues relating to Contempt of Court

7.1

Permissible Limit of Criticism

In democratic society people has aright to criticize the judge and his judgment. These rights are guaranteed by the constitution under Art 7, where supremacy of constitution guaranteed. This Article states that all powers in the republic belong to the people and their exercise on behalf of the people shall be affected only under and by the authority of this constitution. Thus all powers in the Republic belong to the people. This is the concept of Sovereignty of people. This echoes the words of the proclamation by mandate given to us the people of Bangladesh those will supreme. 39 This Basic principle in a democracy is that people are supreme and it follows that all authorities – whether Judges, legislators, ministers bureaucrats are servant of the people, once this concept of popular sovereignty is kept firmly in mind, it becomes obvious that the people area the master and all authorities (including the courts) are their servant peoples right to expressive does not mean that they have absolute power to make any comment which is unreasonable, impairing and lowering the dignity of the court there is also a restriction which come out form the analyzing case laws of different countries. The classical exposition of the right criticism is Lord Atkin said, ‘The path of criticism is a public way the wrong headed are permitted to err therein, provided that members of the abstain from imputing improper motives to those taking part in the administration of 38

Martial Law Regulations (Seventh Amendment), Regulation No. 1, The Bangladesh Gazette, Ministry of Law, Justice and Parliamentary Affairs (Secretariat, Dhaka: Bangladesh Government Press, 1976).

39

Justice Badrul Haider Chowdhury cited in 1989 BLD (SC) 83

justice and are genuinely exercising aright of criticism and not acting in malice or attempting to impair the administration of justice, they are immune, justice is not a cloistered virtue, she must be allowed to suffer and respectful, even though out spoken, comment of ordinary men.’’40 The Indian Supreme Court in the leading case on this point namely Rama Dayal Markarha v State of Madya pradesh observed, “Fair and reasonable criticism of a judgments which is public document or which is a public act of judge concerned with administration of justice would not constitute contempt. In fact such fair and reasonable criticism must be encouraged because, after all no one much less judges can claim infallibility. A fair and reasonable comment would even be helpful to the judge concerned because he will be able to see own shortcoming limitations or imperfection in his work.’’

The essential condition in the of plea of fair criticism is that the person concerned must abstain from imputing improper motives to those taking part in the administration of justice moreover, if a person charged with contempt seeks to take shelter behind the legitimate criticism the facts farming the basis of the criticism must be accurately stated and the criticism must be fair and honest. Editor of newspaper and publisher thereof must extremely careful in reporting upon proceeding of a court of a justice. They must be not only be accurate but also fair to all concerned, partially where proceeding are still pending before such courts, fir it is of the utmost importance that there can not be anything of greater consequence than to keep the streams of justice clear and pure that parties may proceed with safety both to themselves and their character. Therefore the press in entitled to criticize any judgment or others act of judges in good faith and intention of imputing any motive bias, ill will or favoritism. It has duties and responsibilities towards the society and it should not comprise public order, decency and morality and it is exceeds the reasonable limit on of fair criticism it is liable to be prosecuted for contempt of court.

So, freedom of speech and freedom of has been considered in the context of contempt of court and appears that the press like a citizen has the right to criticize any act of a judge in his capacity as a judge or his judgment but subject to the reasonable restriction imposed by law that is the criticism must be fair, honest innocent and must impute any motive, in competency bias or scurrilous attach on the judge or the court.

7.2

40

Apology When Can Be Accepted

Ambard v. Attorny General for Trinidad & Tobago. 1936 AIL ER 704

The question whether or not the apology has the effect of purging contempt has to be decided with reference to the facts and corroding circumstances of each case. The legal position is that an apology will be acceptable if, a) The contemnor appreciated that his at with in the mischief of contempt. b) He regretted it, c) His regard was sincere d) The apology was accompanied by expression of the resolution never to repeat again and e) The contemnor made humble submission to the authority of the court. In another case mentioned that before an apology is accepted the following conditioned must be fulfilled.

•

The apology must be offered at the earliest stage a contempt proceeding and not postponed till the end of the proceeding,

•

The apology must be unconditional unreserved, and unqualified,

•

The apology should be sincere and the out pouring of a penitent heart and not half hearted or for its more sake or as a formality

•

If an apology is to be effective, attempts at justification of an act of contumacy or contempt should be scrupulously avoided.

•

If the charges are grave and amount to a flagrant defiance of court authority or dignity punishment will follow through the apology, if tendered, in time may soften or mollify the rigors punishment.41

Apology is an act of contrition, if tender it may not be necessarily accepted and the condemner purged of this contempt. When a condemner tender the apology as an act of contribution the court must weight that apology tendered by the condemner. If the apology is found to be a real act of contrition, no action need be taken and a ward of warning may be enough but it the apology is qualified, hesitant and sought to be used as device to escape the consequences of the condemners action it must be rejected. The apology must be unqualified and tendered at the earliest opportunity with an expression of open acknowledgement of the guilt and clear expression of remorse.

In the case of State v. Chief Editor, Manbjamin, HM Ershad Prayed for Marcy. He did not do not tendered unqualified apology nor he did it earliest opportunity therefore his plea is rejected on the ground that it is nit an apology in the eye of law.

7.3

41

Gross Amount of Contempt

PLD 1963, Peshawar 195 DB

What would the gross amount of contempt, is no where in the contempt of court act has defined. But it is found by analyzing the legal decision of different countries. Most of the legal decision referred the scandalizing the statement of a judge is a gross amount of contempt. Where the printed or published or uttered matters amount to a scandalisation of the court with reference to a decide case or cases, amounts to clear contempt of court. In Rachapudi Subba Rao Vs advocate General cases the Indian Supreme court observed that “if the act complained of scandalizes the judicial officer with regard to the discharge of his judicial function, it thereby substantially interferes or tends to interfere with the due course of justice which is a fact of the board concept of the administration of justice and as such is punishable.

In Pakistan also, the legal position is same, Scandalisation is still an element of contempt. Beside both India and Pakistan under the contempt courts act of theses countries. Scandalisation of the judge or the court is contempt. Within our jurisdiction the law is more or less same, scandals of the court or the judge is still treated as a form of grass contempt. A statement scandalizing the judge carries with it a presumption that it has a tendency to interfere with the administration of justice. It suggests that the fountain of justice itself has become trained. This kind of contempt has always been held to be a gross from of contempt.42 7.4

What Amount to an Interference with the Due Course of Justice.

All publication of the effect of which is to prejudice issue in the case before judgment is pronounced or which have the tendency to create in the public mind a preconception about such issue, are contempt’s, Readers of newspaper reports of the proceedings in courts must naturally form some opinion about the merits of case reported and if the proceedings are reported accurately and without any addition suppression or misrepresentation, it would be impossible to contend that the publication amounts to contempt because it lends to create in the mind of its intelligent readers an opinion about the case. Such reports are published and read with that object and the mere fact that they excite public pontoon before judgment is delivered is no sense contempt of the court in which the proceeding take place. But if the report amounts to a comments or expression of opinion on matters by suppressing or misrepresenting material steps in the proceedings making in respect of an issue and theses constitute contempt of court in which the proceedings are pending. In such a case it is the duty of court to take appropriate steps to prevent its proceeding from being misrepresented and where the court in which the proceedings are pending is a high court, it is its obvious to deal summarily with such case.

Interference with the administration of justice when they amount to contempt of court are quasicriminal acts and orders punishing them should generally speaking, be treated as orders in criminal cases. But this does not indicate that contempt proceedings were for all purposes criminal proceedings.

42

Sir Edward Snelson v. Judges of the H.C. of West Pakistan Lahore, 16 DLR SC 535

7.5

Punishment for contempt, How may be Assessed

As to the question of the punishment merited inn case of contempt of court the law places it in this special instance, within the competence of the offended party to assess in terms of imprisonment or of fine gravity of the offence, for purpose of punishment. In Contempt proceeding a reprimand is a recognized mode of punishment where the offence is not grave. It is non-less as formal and public a stigmatization of an offence addressed by a judge to a convicted a person as the imposition of an insignificant sum as a fine or a detention for an insignificant period of time.

7.6

Who will be responsible for publication of Contempt Matters?

The editors, Manager, printer and publisher of the newspaper must accept the fullest responsibility for every thing that is published. It is no excuse or justification to say that it is a quotation from somebody close. Even the repetition of contempt is also contempt. In fine it is the duty of the editors printers and publishers of the newspapers to verify the correctness before they publish and print any news any court proceeding.43 Chapter-o8 Some article relating to Freedom of Press vis-Ă -vis Contempt of Court 8.1 Govt may face contempt of court charge: The government is likely to face contempt of court charge for not complying with High Court's directives properly to stop earth filling and encroachments on the embankments of the rivers Turag, Buriganga, Balu and Sitalakkhya. Advocate Manzill Murshid, president of a non-government organization-the Human Rights and Peace for Bangladesh (HRPB)- told The Independent yesterday that he would file a contempt of court petition with the HC against the government officials who have failed to submit the survey reports within the stipulated time as per the High Court directive. Md. Kamal Uddin Talukdar, deputy commissioner of Gazipur district, yesterday submitted a report to the Registrar office of the Supreme Court regarding the progress of work to stop earth filling and encroachment on the embankments of the rivers Turag and Balu. In the report it was mentioned that different illegal structures of some individuals and private companies, although demolished in recent drives from the embankments of the river Turag, the encroachers have again started illegal constructions by encroaching on the riverbed and its embankments. Earlier, the HC directed the surveyors and Kanungoos to submit a report before it regarding the progress of work to stop earth

43

PLD 1964 Dhaka, 24 DB

filling and encroachment on the embankments of the river Sitalakhya. 44 The additional deputy commissioner of Narayanganj issued a show-cause notice on November 22 to four surveyors and three Kanungoos for failing to perform their duties properly as per the HC directives. The deputy commissioner of Narayanganj district yesterday submitted a report to the registrar office of the Supreme Court regarding the progress of work in accordance with the directives of the HC, and response to the show-cause notice. But the survey report of the river Buriganga regarding illegal earth filling and encroachment could not be submitted before the registrar's office of the Supreme Court.

"Some survey reports are yet to be submitted before the court as per the HC directives. So, those who had failed to submit the reports as per the HC directives had violated the HC order. For this reason, I would file a contempt of court petition before the court against them," Manzill Murshid said. On November 3, the High Court ordered the Inspector General of Police (IGP) and Dhaka Metropolitan Police Commissioner to stop in 48 hours earth filling and encroachments on the embankments of the river Turag The verdict came in response to a writ petition filed by Supreme Court lawyer Manzill Murshid on behalf of the HRPB pursuant to a June 25 High Court verdict detailing a series of directives to stop encroachments on the four rivers surrounding Dhaka. The High Court Bench of Justice Syed Mahmud Hossain and Justice Quamrul Islam Siddiqui asked the government to stop earth filling and encroachments on the rivers Buriganga, Turag, Balu and Sitalakkhya until the ongoing survey of the rivers, as directed earlier by the High Court, was completed. The same bench on October 8, after a preliminary hearing of the petition, asked the Dhaka metropolitan police commissioner, Dhaka deputy commissioner, environment department director general and Bangladesh Island Water Transport Authority chairman to submit a report on the encroachment on and earthfilling in the Buriganga and Turag rivers at Mirpur and Hazaribagh to the Supreme Court registrar in seven days The court also asked the four officials to visit the areas of Turag and Buriganga where earth fillings and encroachments were going on, within seven days from the date of getting the judgment copy. "The copy of the High Court directive was posted November 10 to the address of the police chief,' advocate Manzill said earlier. Upon a writ petition filed by HRPB challenging the legality of the earth filling and encroachments by land grabbers on the rivers, the HC bench comprising Justice ABM Khairul Haque and Justice Momtaz Uddin Ahmed had on June 24 this year in a verdict directed the authorities concerned to protect the rivers Buriganga, Shitalakhya, Balu and Turag from illegal encroachments and earth-filling. In its order, the court asked the authorities concerned to demolish all illegal structures and remove the earth dumped into the rivers It asked the government to demarcate the four rivers surrounding Dhaka - Balu, Turag, Buriganga and Sitalakhya - according to the survey in four months and submit its report to it within this period. 45

8.2 Worldwide Support for Principle of Media Freedom: 44 45

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The broad principle of media freedom gets very robust support. Majorities in all nations asked say that it is important "for the media to be free to publish news and ideas without government control."

On average, 81 percent said it is "important," with 53 percent saying it is "very important." In no country did more than 29 percent say that media freedom is "not very important" or "not important at all."

Citizens are also seen as having the right to read publications from hostile countries. Respondents were asked whether people in their country should "have the right to read publications from all other countries including those that might be considered enemies." Once again, majorities in all countries affirmed this right; on average 80 percent.

8.3 A Willful Disregard or Disobedience of A Public Authority: By the Constitution of the United States, each house of congress may determine the rules of its proceeding's, punish its members for disorderly behavior and, with the concurrence of two-thirds, expel a member. The same provision is substantially contained in the constitutions of the several states.

The power to make rules carries that of enforcing them, and to attach persons who violate them and punish them for contempt. This power of punishing for contempt is confined to punishment during the session of the legislature and cannot extend beyond it, and it seems this power cannot be exerted beyond imprisonment. Courts of justice have an inherent power to punish all persons for contempt of their rules and orders, for disobedience of their process, and for disturbing them in their proceedings.

In some states, as in Pennsylvania, the power to punish for contempt’s is restricted to offences committed by the officers of the court, or in its presence, or in disobedience of its mandates, orders, or rules; but no one is guilty of a contempt for any publication made or act done out of court which is not in violation of such lawful rules or orders, or disobedience of its process. Similar provisions, limiting the power of the courts of the United States to punish for contempt’s, are incorporated in U.S.C. When a person is in prison for a contempt, it has been decided in New York that he cannot be discharged by another judge when brought before him on a habeas corpus; and it belongs exclusively to the court offended to judge of contempt and what amounts to them; and no other court or judge can, or ought to undertake in a collateral way, to question or review an adjudication of a contempt made by another competent jurisdiction.46

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8.4 Contempt of Court ordinance Okayed The cabinet yesterday approved in principle the much talked about Contempt of Court Ordinance to clarify the definition of contempt, enhance accountability of judges and reduce chances of future arbitrary rulings.

The council of advisers also approved in principle the long-awaited Anti-Money-Laundering Ordinance, 2008, an ordinance to make the Bangladesh Telegraph and Telephone Board (BTTB) a private company, and an ordinance to establish a public university in Rangpur. “The contempt of court ordinance has been designed to ensure people’s rights as it will enable the press to hold the courts and judges accountable and it is for everyone’s benefit,” said the Chief Adviser’s Press Secretary Syed Fahim Munaim in a press briefing after the weekly cabinet meeting. The ordinance, once promulgated after vetting by the law ministry, would replace the Contempt of Court Act 1926.

“Any wilful act, statement or expression through words or signs which is interpreted to violate or undermine a verdict, decree, order, writ or warrant issued by a court will be considered a contempt of court,” It will also consider any obstruction of justice, slander or libel of a court and personal criticism of a judge while performing judicial functions as contempt of court. A contempt of court would be punishable by six months’ imprisonment or a Tk 20,000 fine. The ordinance allows the press to comment and publish “normal” court proceedings and functions or seek disciplinary proceedings against any judge as long as it is done in “good faith” and through “restrained language”. A judge’s alleged corruption or incompetence and their extra-judicial activities outside their judicial functions can also be reported, according to the ordinance. A judgment can also be criticized as long as it is “constructive”. The BNP-led coalition government had placed the Contempt of Court bill before the parliament in May 2006, which was not passed by the House. The Anti-Money Laundering Ordinance would enable the government to simplify the process to confiscate and recover assets funneled out of the country. Under the rule, the state or the central bank could seek help from countries or agencies to investigate and recover assets through memorandums of understanding (M0U), contracts and conventions with governments or organizations. This would ensure Bangladeshi court orders to attach or freeze assets would be carried out by the corresponding countries and vice versa. “As a result, recovering smuggled money will become much easier,” the ordinance read. According to intelligence agency sources, massive amounts of money have been siphoned off overseas, which the caretaker government has been trying to recover since it took over last year. In the absence of an anti-money laundering act, the government could not sign deals to start recovering assets from other countries.

The ordinance allows the Bangladesh Bank to fine courier services, micro credit institutions, NGOs, and share and security brokers, if they violate “predicate offences” comprising the ordinance rules.

“The company in violation, its owners, directors, manager, secretary or other officials and employees will be considered violators of the ordinance,” the draft ordinance reads. The list of predicate offences

in the ordinance includes corruption and bribery, forgery of currencies and documents, extortion, cheating, dealing in illegal arms and drugs, smuggling, abduction for ransom, murder, sexual harassment, smuggling of local and foreign currencies and human trafficking. Meanwhile, the council has ordered the law and establishment ministries to report back with a final draft of the ordinance to turn BTTB into a private company. In the ordinance called Bangladesh Telecom Company Limited, 2008, all BTTB assets would be turned over to the new company but the government has not yet decided how many of the staffers would be transferred. The government is yet to decide on the future of Tele talk and the submarine cable company that work under the supervision of BTTB. 46 8.5

The cassette scam case and the contempt of court Who will protect freedom of expression

Chief Editor of vernacular tabloid daily ‘Dainik Manavzamin’ Matiur Rahman Chowdhury was sentenced one-month imprisonment for contempt of court. Former president H M Ershad was awarded sentence to six months in jail. A High Court Division Bench comprising Justice Syed Amirul Islam and Justice A K M Shafiuddin gave the verdict on 20 May 2002 in the so-called sensational 'cassette scam case'. The court also fined Publisher of Manavzamin Mahbuba Chowdhury Tk 2,000, failing to pay, which she is to spend two days in prison. Both Ershad and Motiur will also have to pay Tk 2,000 in fine; otherwise their jail terms will be extended each by another 15 days. The court directed Ershad and others to surrender before the deputy commissioner, Dhaka within four weeks.

The court, however, relieved three other newspapers -- Dainik Ittefaq, Dainik Sangbad and Daily Janakantha -- and former Judge of the High Court Division Justice Naimmuddin Ahmed from the contempt charge.

Background of the Case On 16 September 2000, the daily Manavzamin published a front-page story titled "Ek Rajokio Kelengkarir Khosora (Notes of a Royal Scandal)". After about two months of the said publication, the then Attorney General Mahmudul Islam brought the matter into the notice of the Chief Justice. The Chief Justice referred the matter to a Division Bench of the High Court Division comprising Justice Syed Amirul Islam and Justice AKM Shafiuddin Ahmed. On this basis the court issued a rule of contempt of court against the Manabzamin on 8 October 2000. The Attorney General also moved against four other dailies i.e., Sangbad, Ittefaq, Janakantha, and Jugantar for publishing comments of a former judge of the High Court Division Justice Naimuddin Ahmed, currently a member of Law

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Commission. His comments, made in a public function, were based on the alleged judicial corruption.

Surprisingly the court, at the first instance, did not issue any notice against him.

Following the petition of the Attorney General, rule and show-cause notices were issued against the other four dailies by the same Division Bench, in some cases, as suo moto action of the court. The editors, the publishers and concerned reporters of the five dailies were ordered to be present before the court within a week. At the same time the court also ordered the Manavzamin to produce cassette, transcription, source of the cassette and relevant documents before the court. On 15 November 2000 the court again ordered the Manavzamin to disclose its source of information. Barrister Rokonuddin Mahmud, lawyer for the Manavzamin told the court that his client would produce all relevant documents before the court but denied to divulge the source of confidential information. Sixteen editors and publishers of national dailies in a joint statement on 16 November 2000 expressed their concern over issuance of rule and show cause notices by a Division Bench of the High Court Division of the Supreme Court. Particularly, the High Court Division’s order issued against the daily Manavzamin on 15 November to disclose its source of information of a story relating alleged corruption in the judiciary within two days worried the news professionals and media activists. They observe that the press cannot effectively perform its central function to disseminate information of public importance, if people in possession of information that they conscientiously believe should be brought into the public domain are at risk of being identified and penalized for disclosing it to the press.47 Rationale of the Judgment This judgment of the contempt cases, filed against national dailies, has brought the significant issues of freedom of expression in the forefront of public discourse. Some critical questions has also been raised: 1. The court observed that Ershad had tried to influence the judiciary. It is clear that court is convinced of Ershad’s mollified intention. In case of the Manavzamin Chief Editor, it observed that an editor or a journalist has the freedom to publish authentic information and the whole truth, not partial truth. But the Manavzamin editor failed to do this. This is, indeed, contradictory. If a person is convicted based on a revelation through a newspaper report or article, how would the publisher and the editor the newspaper be punished for ‘publishing half truth’?

2. It is really surprising that through the judgment the person who committed a crime and a person who blew the whistle are treated at par. This also goes against international human rights standards.

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Rather, the newspaper-Manvzamin- deserves appreciation for taking the risk and trouble of exposing a judge who failed to maintain the required standard of judicial fairness and integrity.

3. Manavzamin has also been accused of ‘sensationalizing the matter’. However, the division bench could not substantiate the point. Publishing a fact, established by the court itself, cannot be termed as ‘creating sensation’. In fact, every revelation of truth might create sensation. Should, in that case, truth, is sacrificed at first?

4. What about the judge who resigned to avoid the possible embarrassment at a Supreme Judicial Council session? Can anyone’s resignation from his position absolve him from accusation or allegation of being a part of malpractice?

The issues of contempt of court and protection of journalists’ sources also deserve specific analysis. 48 Contempt of court by the fourth state?

Freedom of expression and the free flow of information, including free and open debate regarding matters of public interest, even when this involves criticisms of individuals, are of crucial importance in any democratic society. They are key to personal development, dignity and fulfillment of every individual, as well as for the progress and welfare of society, and the enjoyment and other human rights and fundamental freedoms. The role of news media, branded as the fourth estate, is extremely important to the process creating an enabling environment of openness. As rightly pointed out in the statement of sixteen editors and publishers of national dailies, “…a free and independent press ensures citizen’s constitutional rights of freedom of speech and freedom of expression. It is also a precondition for promotion and protection of the whole range of people’s fundamental rights. Also without a free and independent press, people’s right to know can not be ensured.”

Unfortunately, judiciary, the ultimate guarantor of rights, continues to use the offence of contempt of court to gag often-substantial critique. Even in England, where the last successful prosecution for scandalizing the court was brought in 1931, as David Panick in his masterpiece ‘Judges’ asserts, “there can be little doubt the bringing of such prosecutions had an inhibiting effect on newspaper and magazine reporting of judicial affairs generally…the continued existence of the offence, and the memory of successful prosecutions, inhibits journalists, who wrongly suspect that they have a legal obligation to speak respectfully and cautiously when discussing the judiciary.” Another aspect of contempt that deserves special mention is that which operates to protect the fairness of trials and to maintain the authority of the courts. Although there is a public interest in doing this, the rules thereby imposed also impede and ultimately conflict with another public interest, namely freedom of 48

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discussion. Freedom of discussion is an important public interest for as Lord Simon stated in AG v.

Times Newspapers Ltd. “People can not adequately influence the decisions, which affect their lives unless they can be adequately informed on facts and arguments relevant to the decisions.” The continuing growth of media and its crucial role in consolidating democracy calls for greater scrutiny of somewhat restrictive nature of contempt laws. This is not to say that the media should interfere an ongoing trial and thereby may cause a potential harm to the fairness of trials. As Lord Denning MR once said in his celebrated ‘Road to Justice’, “…the press plays a vital part in the administration of justice. It is the watchdog to see that every trial is conducted fairly, openly and above broad ...But the watchdog may sometimes break loose have to be punished for misbehaviour.” 49 In case of Manavzamin, the question breaking such standard cannot arise at all. It did not make or propagate any fictitious story. Rather it intends to point out the malady within the higher tier of judiciary.

Journalists’ right to professional secrecy The increasing legal recognition of the confidential relationship between journalists and their sources of information derives from a recognition of the role of the press in ensuring freedom of expression and information and, in particular, as a public watchdog. There is also a growing acknowledgement that protecting confidentiality between journalists and their sources is crucial to the effective exercise of freedom of expression and information, and many jurisdictions provide it with some form of legal recognition. Judge Balogun of the High Court of Lagos State of Nigeria in Oyegbemi v. Attorney General of the Federation & Ors (1982) stated, “…no person or authority (not even a court of law) in Nigeria may require any individual, editor, reporter or other publisher of a newspaper to disclose his source of information of any matter published by that individual or other person or publisher, and the individual or editor, reporter or publisher of a newspaper can not be guilty of contempt of court for refusing to disclose the source of information contained in the newspaper publication, unless it is established to the satisfaction of the court that disclosure is necessary in the interest of justice, national security, public safety, public order, public morality, welfare of persons or for the purpose of prevention of disorder or crime.”

Article 74 (3) of the Mozambique Constitution, which states “freedom of the press shall include …

Protection of professional independence and confidentiality. Article 30 (1) of the Mozambique Press Law states, “Journalist shall enjoy the right to professional secrecy concerning the origins of the information they publish or transmit, and their silence may not lead to any form of punishment." 50 In 49

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January 1992, the Supreme Court of Norway in Edderkop case issued a decision upholding the right of journalists to protect their sources, especially concerning matters of public interest and even if they published their information in a book rather than a newspaper or other periodical publication. The French law on protection of sources and confidential information was substantially revised by the Act of 4 January 1993 on criminal procedure reform. The Act added Article 109(2), which now provides, "Any journalist who appears as a witness concerning information gathered by him in the course of his journalistic activity is free not to disclose its source. The Sapporo District Court of Japan, sustained by the appellate courts, held that Article 281 of the Code of Civil Procedure protects journalist's privilege as a witness to refuse to divulge information about a source as "an occupational secret" unless the information is necessary for a fair trial. The Court of Appeal (England and Wales) declined to order disclosure of the sources of a libelous article in Private Eye, which alleged that the publishing magnate Robert Maxwell had financed trips abroad by the leader of the labor party in order to be recommended for a peerage. Section 10 of the Contempt of Court Act 1981 prohibits courts of England and Wales from ordering media personnel to disclose confidential sources except when disclosure is "necessary in the interests of justice or national security or for the prevention of disorder or crime" The Manvzamin had handed over the controversial cassette to the judges and the authenticity of the cassette was proved beyond doubt. Certainly, it is not bound to disclose the source of the cassette.

Protecting whistle blowers In fact those who express their opinions, or impart ideas and information through the medium of a newspaper or any other medium for the dissemination of information enjoy by customary law and convention a degree of confidentiality. The question is how else a disseminator of information to operate if those who supply him with such information are not assured of protection from identification and/or disclosure. Individuals who release information on wrongdoing – whistleblowers – must be protected from any legal, administrative or employment related sanctions for the sake of democracy and rule of law.

The culture of secrecy, in fact, breads and encourages corruption. Newspaper reports on corruption and malpractice directly assist state organs to establish their accountability and transparency before people. As eloquently claimed in the statement of editors and publishers, “By bringing to the notice of our highest state and judicial body, we think we have assisted them in investigating the events and taking precipitous action so that our judiciary is cleansed of any tendency that hamper or damage its prestige and dignity.” Frequent issuance of rule and notices for contempt of court against newspapers may be counter productive to the fragile state of democracy in Bangladesh. Jailing an editor and

journalist will for publishing truth would definitely send a wrong signal to the society and the world that fiction not truth will be appreciated in Bangladesh. 51 8.6 BANGLADESH: High Court convicts editors, publishers, reporters of contempt The High Court yesterday convicted and fined the editors, publishers and three reporters of the Prothom Alo and Bhorer Kagoj for contempt of court for running a report that an additional judge 'tampered' with his law exams results. Prothom Alo Editor Matiur Rahman and Publisher Mahfuz Anam and its two reporters Enamul Haq Bulbul and Masud Milad were fined Tk 1,000 each, failing which they are to serve out one month in prison. The court also handed down similar punishment to Bhorer Kagoj's former editor Abed Khan and Publisher Saber Hossain Chowdhury. The court sentenced Bhorer Kagoj reporter Samaresh Baidya to two months of rigorous imprisonment and slapped a fine of Tk 2,000 on him for not only printing the news, but also the photograph of the additional judge in question. He will have to spend another month in jail should he not pay the fine.

Counsels of the defendants said they would contest the verdict in the Supreme Court. The two dailies carried reports on October 30 last year that Additional Judge of the High Court Faisal Mahmud Faizee had tampered with his LLB results that he obtained from the Chittagong University (CU) in 1989. Faizee's father Advocate Mohammad Faiz filed a contempt suit against the editors, publishers and reporters. Barrister Azmalul Hossain represented him, while Dr Kamal Hossain, Barrister Rokanuddin Mahmud and Advocate Mahbub-e-Alam represented the defendants along with barristers Sara Hossain, Mustafizur Rahman Khan and Tanjibul Alam. The High Court also issued a rule on the accused asking them to explain why they should not be punished for maligning the highest judiciary by publishing the report. The newspapers decided to contest the issue instead of tendering apologies, which is a common practice. The High Court bench of Justices MA. Matin and AFM Abdur Rahman handed down the verdict in a daylong session. The hearing of the case began in December. The bench yesterday observed that the newspapers have grossly committed contempt of court, but the judges took a lenient view because the media persons are working for society. 52 Court's Observations The court observed that the Prothom Alo and Bhorer Kagoj reports were 'false' since it was not proved that judge Faizee's LLB certificate was fake. The court said the constitution guarantees freedom of press, but this must not be done at the cost of independence of the judiciary. The press 51

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must not scandalize court, the court also observed and gave some guidelines for the media on how to deal with the court. The media cannot communicate with a judge directly in person, on telephone or in any other form. If the media people must talk to a judge, they will have to take permission from the Supreme Court registrar, the court in its guideline said. The attorney general shall have to be at court during hearing on a case involving scandalisation of court. The press may formulate a guideline in consultation with the Bar Association that will determine how court reporting should be done, the court observed. On the headline of the Prothom Alo report -- 'A judge's LLB certificate is fake' -- the court observed that it did not find any basis for the paper to reach such a conclusion or give such a banner headline. The content of the report had nothing to do with the forgery of the certificate. The report did not substantiate the headline, neither did it disclose as to who had committed the forgery, the court noted. The press reports said the Chittagong University Syndicate cancelled the results of 2,400 students following an investigation into allegations of tampering with results. The report only mentioned Judge Faizee. The court noted that the results were not cancelled as the authorities decided to re-investigate the allegation, which means it has not been proved that Faizee's certificate was fake. The court said the reports were based on some decisions of the university syndicate. These decisions did not specifically mention anything against anyone or any roll number. The court said the caption and sub-caption of Bhorer Kagoj did not reflect content of the report. The reporter gave his own opinions that Faizee became a judge without achieving the qualification, but he could not prove that Faizee did not pass the LLB examinations. The report also could not establish that Faizee was involved in wiping or inking the LLB tabulation sheet. When a judge is appointed, he will function independently keeping himself completely free from the pressure of the executive, media or any other quarter. 53 The reports questioned Faizee's qualification to become a judge and his recruitment process, it further noted. The court said publication of the news shook public confidence in the judiciary. The Supreme Court Bar Association also lost trust in the judge. Court does not function individually but institutionally. Following the press reports, Faizee was withdrawn from the bench in which he was attached to and so, the institution has been deprived of his services. Those who attack court should know that judges are indispensable to ensuring the rule of law. As judges cannot protest when such an attack is made, they need to be protected.

Qualification of a Judge The court said if an unqualified person is appointed a judge, there is a remedy. This can be challenged at the High Court and the Supreme Judicial Council can have a look at the issue. But, raising questions about the appointment cannot be an option. Educational qualification is considered 53

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as a big criterion. But in the history of the judiciary, it is seen that many became famous judges although they were not good at studies. While appointing a judge there should be a rule for effective consultation with the chief justice and the full court of the Supreme Court. No selection can be absolutely appropriate.

Reference to a Previous Case Drawing its conclusions, the court referred to a verdict of a contempt of court case of 1899 and said in a country like Bangladesh where the literacy rate is low, printed words have strong influence. The general public does not read all the news published, but when news is printed red in banner headline, they pay attention. This is a misuse of freedom of press. In the 1899 judgment Lord Morris had said contempt laws regarding scandalisation of court may be necessary in 'small colonies, consisting principally of colored populations'.

Reaction: Advocate Mahbub-e-Alam; counsel for one of defendants, told reporters, "I'm certainly not happy (with the judgment). We will appeal to the Supreme Court against the judgment. “Petitioner's counsel Azmalul Hossain in his reaction told the press that the verdict has proved that the reports were baseless and the certificate was not forged. "For this baseless news, Faizee has been unable to serve for the last six months. Now it has been resolved. Besides, the court has identified how far the freedom of expression in the constitution can go." Barrister Tanjibul Alam told The Daily Star, "The court has expressly stated that this contempt matter was not about the truthfulness of the report or as to whether Justice Faizee was indeed guilty of misconduct. Therefore, any claim that the court has declared the certificate of Justice Faizee genuine is untenable."54 Chapter-09 Problems and Recommendation

9.1

Contempt of court for judicial standpoints:

The freedom of press and contempt of court law in Bangladesh is very controversial issue. Albeit, both these tow are very important in democracy.

Everybody including press has an apprehension of making contempt of court due to the ambiguity, uncertainty of the contempt of court law in Bangladesh. A decision of Supreme Court in the case of 54

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State Vs Chief Editor, Manabjamin (2005) remerged a public debate. Therefore a brief analysis of case is worth mentioning.55 Facts of the case: This was a contempt case against the Dainik Manabjamin for publication of a report, which was based on a cassette containing a telephone conversation between Justice Latifur Rahman and former president HM Ershad. The report referred to the famous Janta tower case in which a lower court convicted Ershad who preferred an appeal in the High court Division. Justice Latifur Rahmasn was judge in the division bench in the High court Division, which delivered a judgment on 24 August 2000.The report conveyed the information that the judge took bribe to deliver a judgment favorable to Ershad but could not do so because of intervention by the then law minister. After the judgment was delivered Ershad talked with justice Latifur Rahman over phone at a late right meeting on 24August 2000,but their telephone conversation was recorded on a cassette by an unidentified person. Based on the recorded telephone conversation a report was first in the Dainik Jugantor on 13 September 2000 and then on 21 September 2000 it was reported in the Dainik Sangbad that the cassette was than in office of the president and the chief justice .The report of the Dainik Sangbad added that the cassette contained a conversation between a judge and a political leader. There after, on 16 September 2000, the Dainik Manabjamin published a fairy story under the caption (A draft of royal scandal) indicating the conversation between Ershad and the judge without mentioning their name, on account of this story a contempt case was field against the Dainik Manabjamin on 8 November 2000.At the Hearing of the case on 22 November, 2000,the lawyer for the Danik Manabjamin submitted the cassette before the high court Division bench and after hearing the cassette judges of the bench were convinced that the conversation was held between Justice Latifur Rahman and HM Ershad. 56

Judgment: The high court division sentenced, the chief editor of the Danik Manabjamin was sentenced to one month simple imprisonment including a fine of Tk.2000 simultaneously the court also convicted the Mrs.Mahbubh Chowdhury; the publisher of Manabjamin for fine tk 200 and directed to her the fine within two month. The court also sentenced HM Ershad to six months imprisonment including a fine of tk2000for attempt to influence the judge before the conversation took place.

Reasoning for Decision:

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That the judgment pronounced by the court after relying on the recorded conversation between justice Latifur Rahman And HM Ershad in this conversation HM Ershad somehow influenced the judge to get a favorable verdict in the appeal and judge also assure Ershad that he will try best to obtain a favorable order but he could not do so as the presiding judge did not agree to his proposal. Added that the talk recorded in the cassette that there remains no doubt that HM Ershad did not talk with the learned judge only after delivery of judgment but frequently talking with the learned judge even prior to the delivery of judgment of for deduction of sentenced. The principal of law is that communication with a judge for the purpose of influencing him on the subject matter of the case pending before the judge amounts to contempt of court. It furthers added that Ershad did not even tender unqualified apology for the earliest an opportunity. In trying to influenced the learned judge while the appeal was pending for disposal. Ershad has committed contempt of court. The court also convene that the report published in the Dainik Manabjamin is written is such a palatable style the entire incident was the outcome of bribery of unprecedented amount to get a favorable judgment. The condemner No.1 Matiur Rahman Chowdhury sentenced for preparing such news, which scandalized the judges of this court and lowered down the authority of the court and brought the same in disrespect and disrepute to the public. He is the Editor and author of the item and by writing his baseless and factious story committed contempt of gravest magnitude. The condemner No2 Mrs., Mahbuba Chowdury was sentenced for same responsibility of the printer and publisher of newspaper for every thing that is published in the newspaper. So he is equally guilty of contempt of court. The court further observed that the reading of the report gives the impression that it was clearly intended to designed purpose of bringing the court into contempt. The court observed; “admittedly this Article referred to the corruptibility of the judge and these sorts of allegation are very serious in nature having great repercussion causing an embarrassment to this court. Such an irresponsible conduct & attitude on the part of the Manabjamin cannot be said to have done in good faith or in the interest of justice but distinctly opposed to the high professional standard as even a slightest inquiry or simple verification of the tape conversation would show that there is no table of library in it. It appears that no care was taken by the condemners in publishing such a false news item & it appears that they have deliberately & intentionally published this sensitive article for drawing attention of the public at large.

This is by no standard can be regarded as a public service but a disservice to the public by misguiding them with false new this sort of grossest type of contempt must be visited with punishment.

Reaction After this judgment plenty of reaction made from the media, public etc. In reaction the Chief Editor of the Dainik Manabjamin said that Ershad had confessed to his conversation and the judge concerned had resigned, he had not done any wrong. A report of the Dainik Janakantha termed the judgment surprising and unprecedented because both the persons who committed a crime and who helped to

catch the culprit are convicted. It commented that the duty of the press is to publish report on crime, corruption, irregularities and although the Danik Manabjamin had performed this duty properly, it has been convicted for contempt of court, Moreover fifteen editors of leading national dailies in a joint statement expressed their outright dissatisfaction with the verdict of imprisonment and fine against the chief editor and publisher of the Dainik Manabjamin. 57 Positive sides of the judgment Though the judgment made lot of controversy among the people but it has also some positive side, which are characterized under following way.

•

This judgment was trying to uphold the dignity and prestige of the judiciary. In this judgment the court added that the court and the press have common roles to play in many cases and the matter taped conversation between Ershad and a High court judge0was published by different newspaper being fully conscious of the judiciary’s image our objective was not to undermine the judiciary butt to held uphold its image by revealing the flaws;

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In this judgment court also added that judgments also criticized but motives of the judge need to be attributed because it brings the administration of justice into deep disrepute;

•

It also directs what would be the duty of the press. It is the duty of the press to refrain from scandalizing or tend to scandalize or lowers or tends to lower the authority of the court or prejudices or tends to prejudice or interfere or tends to interfere with the due course of justice. Any publication whether by words written or spoken or by signs or by visible representation or otherwise of any matter or the doing of any other act whatsoever relevant and material;

•

In this judgment, the court also remembered the judge about their duty and directed that; independent judiciary is the right of every citizens. A Judge must be and be seen to be free to decided honestly and impartially on the basis of the law and the evidence and do such works in relation to keep the confidence of the public in the judiciary.

Negatives sides of the judgment Following are marked as a negative point of view from the judgment•

In this case, conversation between HM Ershad chief justice Latifur Rahman was made. It established there is a conversation between above two. In this regard HM

57

The Dainik Janakantha, 21 may 2002

Ershad was convicted but justice Latifur Rahman escaped from any disciplinary sanction or punishment simply by resigning from office.

•

Albeit the press played an important role in scrutinizing the conduct of the judge, which is an important way of gaining public confidence in the judiciary or judges was punished for contempt of court.

•

The person who committed a crime and who catch the criminal both are convicted, is really questionable.58

9.2

Problems and Recommendation in Regard to Freedom of press and Contempt Of Court Law in Bangladesh.

The freedoms of press and contempt of court law have a different value in democracy. Both are essential for establishment of the good governance in the county freedom of press are a guaranteed right in our constitution through which people can received the up to date information about the happing occurred in every day’s life. It is the duty of the press to publish accurate and authentic news and refrain from publishing fair story Contempt of court law is also essential for the proper functioning of the judiciary. Only judiciary can cheek the other organ of the government and established justice to the society. The contempt of court laws not only uphold the dignity, prestige and image of the judiciary but also maintain the proper function us of the judiciary. Now the freedom of press and contempt of court law in Bangladesh creates controversy among the public. Some may though that contempt of court law must exist for protecting the unreasonable news to publish against judiciary. In Bangladesh, the contempt of court Act 1926 is governed throughout the country.

Article 108 and 39 of the constitution with the contempt of court Act 1926 are governed throughout the country. This of court Act1926 comprises with 3 sections 1 of the Act contains its title, extent and commencement; section 2 gives power to the high court division to punish condemner and section 3 limits punishment for contempt. This act was enacted in British era when Bangladesh was a part of British India. This colonial law of contempt is quite inappropriate and insuffient for the modern Bangladesh. Neither neither the Act nor the Art 108 of the constitution defined the contempt of court.

After analyzing the case laws it was found that anything which scandalizing the judge and interference with the administration of tantamount to contempt of court nor my other but nothing this act mentioned what conduct would tantamount to contempt of court. Without specify law public have a chance to commit wrong and create substantial risk that the course of justice in the proceeding sing in question will be seriously impeded or prejudiced, the Act identifies the principle of liability for contempt as strict liability rule which means the ruler of law whereby conduct may be treated as a 58

The Dainik Janakantha, 21 may 2002

contempt of court as tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so. It provides that any speech, writing, broadcast or other communication in whatever form, Which is addressed to the public at large or any section of the public may be subject to the strict liability rule however a person would not be a guilty of such contempt if the or she does not know and has reason to suspect the relevant proceeding are active.

Though the freedom of press as guaranteed as fundamental rights but it does not give absolute freedom to write publish anything regarding court. However due to some reason, absolute freedom always made absolute corruption has a chance to commit wrong with court & influences the mind of the people from judiciary. Absolute freedom never brings fruitful result for democracy. There must be some restriction, which might control the power of freedom of press. If freedom of press absolute then the judge will have an apprehension to administer the justice due to consequence of criticizing his judgment which really hampering the due course of justice. That is why absolute freedom is not desirable. But the contempt court law cannot restrict the press to exercise its power in full extent. It only curtails in court related matter .Its not only save the people but also the whole public (including press).

So, both contempt of court law & freedom of press must exist in Bangladesh, only controversy arises between this two due to uncertainty of contempt of court law. The govt. should enact a contempt of court law in considering the present situation of the country. Because the Contempt of Court Act 1926 has become obsolete, inappropriate, insufficient with the present conditions. A specific law of contempt of court can be useful to make the public & the media aptly aware of the liability for contempt of court. Although Bangladesh, India & Pakistan have similar Historical Background of law & legal institution & they all have inheritance the British traditions, India & Pakistan have been much more advanced than Bangladesh. India had replace the contempt law; 1926 in 1952 & lastly enacted the Contempt of Court Acts, 1971. In Pakistan, they have contempt of court act 1976 pursuant to Art. 204 of 1973 Constitution. Instead of enacting new law Bangladesh still depending on principles of contempt by the statutory law. It is urgent necessity that Bangladesh like India & Pakistan shall enact a contempt of court law. Then all intricacy between press freedom & contempt of court will remove the controversy. It also necessary to limit the powder of press due to proper functioning of the judiciary, otherwise judge will scared to pronounced judgment for consequence of criticism. If a judge committed any wrong then the through the supreme judicial council punishment of the judges must be ensured.

Chapter-10 Conclusion:

The press seems to play a significant role in upholding the interest of the people. It works as representative and voice of the people against any act which destructive to the people rights. It is duty to write and publish news items and features concerning matter of utmost public interest. Freedom of the press guarantees the right of the people to be informed by the press on matters of public interest so that they may exercise their right and citizen. People firmly believes that freedom of press will ensure the willingly participation of good governance and maintained the democracy. It helps the public by giving information corruption, mismanagement of any organ of the Government so as to aware the people about such corruption and mismanagement to the process of development of the country. As stated above Contempt of court law is also necessary in democratic society. It protects the independence and dignity of the judiciary and the administration of justice against any conduct, which disrespect or to obstruct or interfere with the due course of justice. It is the duty of the every citizen including press maintained the dignity. Prestige and image of judiciary and avoiding making comments which demeaning, lowering the judiciary. The power, prestige and image of the court should remain above controversy. It is the most important organ of government. If it is break down than other organs will automatically collapse. For that reason constitution of our country guarantees restriction in by law in relation to contempt of court. Though in a sense it seems that provision contempt of court is a barrier to the role of the press recognized as an important fundamental right but in real it is not.

Thus Article 39 of the constitution does not guarantee the absolute power of the press due to uphold the dignity and prestige of the court. There is no doubt that this court is the last resort of the hapless people .if the judiciary is question able than nothing will remain to uphold the rule of law which regarded as fundamental feature of our constitution Our judiciary is so weakest judiciary despite of separation of power. If any unreasonable criticism it may destroy they public confidence. Albeit the judiciary is not immune from criticism but when criticism based on obvious distortion or quote gross misstatement and made in a manner which is designed to lower respect of the judiciary and ruin the public confidence. These we must remember that this court is not only the guardians of the constitution but it exist to guide all other organ of the sate and the people at large helped them on right track. Therefore, freedom of press and judiciary are vital for preserving democratic values. It is essential that each other and appreciate their contemporary role in the preservation of democratic value. The restriction imposed under article 39 (2) of the constitution does not curtail the rights of freedom of press in full extent. But for the save of the effective role of the press in protecting and promoting human rights, the law of contempt of courts should be charge providing detailed principles including clear definition of contempt of court.

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