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|Volume 11 |Issue 21| May 25, 2012 ||
Guilty of Contempt?
In order to protect the image of the judiciary, the Supreme Court can try anyone for contempt of court and pass a verdict. On the other hand, freedom of expression of all citizens is an essential pillar of democracy. It seems that a balance between the two is yet to be established in the country.
Akram Hosen MAmun
There is a complex and often contradictory relationship between the scope of Contempt of Court law and freedom of expression. Dissenting journalists, writers and intellectuals, among others, often find themselves tried for alleged contempt of court. In Bangladesh, there have been quite a number of cases of journalists being accused of and receiving punishment for contempt of court.
The law that is being applied by the court now is called Contempt of Court Act 1926. For contempt charges, a convict can get a sentence of a maximum of six months in prison or a fine of Tk. 2000 or both. However, Mizanur Rahman Khan, a journalist who specialises in constitutional and legal issues of the state, refuses to acknowledge it as an act. “In British India, it was formed to create a jurisdiction of the Kolkata court,” he says, “and it is not a complete contempt law in any sense.” As a result, the law is inconsistent and fails to serve the need of contemporary society, he asserts.
In a similar note, Nurul Kabir, the editor of daily New Age, against whom contempt charges were brought for publishing an article that was deemed contemptuous by the court, questions the very concept of Contempt of Court. “The notion of the doctrine of the 'contempt of court' is colonialist, in the first place,” he says, “The colonial regimes formulated and nurtured the doctrine primarily to repress legally the political dissenters of the colonies.” To prove his point, he refers to an observation by the Privy Council of England in 1899:
Committals for contempt of court itself have become obsolete in this country [England]. Courts are satisfied to leave to public opinion attacks or comments derogatory or scandalous to them. But it must be considered that in small colonies, consisting principally of coloured populations, the enforcement in proper cases of committal for contempt of court for attacks on the court may be absolutely necessary to preserve in such a community the dignity of and respect for the court.
In Kabir's opinion, “No human being committed to democratic values can deny that the Privy Council's observation about the doctrine of the contempt of court is not only colonialist, but also racist to its core.”
In the proceedings of contempt cases, the court does not acknowledge facts as 'evidence'. In other words, an accused cannot be defended even if what he/she had published was true. “It means that you cannot cannot speak or publish the truth if it scandalises the court,” says Rahman. The court uses this provision in virtually all the petitions of contempt.
Kabir does not find this surprising at all. “Had 'truth' been considered evidence, the colonialist courts would not always have been able to legally punish those politically opposing the miscarriage of justice to the victims of brutal colonial exploitations across the continents,” he says, “The people of Bangladesh have no reason, even at present, to accept the colonial judicial practice of not recognising 'truth' as evidence in contempt of court cases.”
Moreover, the limitation and delimitation of the contempt law is not specified anywhere. According to Rahman, “The scope of the law depends on the temperament of the society, the application of rule of law and its practice.” However, the press has repeatedly urged the court to specifically identify what is contempt and what is not.
In 2005, our contempt law was 'modernised'. It stated, “The publication of a substantially fair and accurate report of a judicial proceeding or any part thereof shall not constitute contempt of court.” Rahman points out that the notion of 'substantially fair and accurate' is an abstract one. As a result the scope of contempt law still remains a grey area.
Our constitution also endows the Supreme Court with the power to punish individuals for contempt: "The Supreme Court shall be a court of record and shall have all the powers of such a court including the power subject to law to make an order for the investigation of or punishment for any contempt of itself." [Article 108]
Here, Rahman points out that the power given to the court by the constitution is 'subject to law'. The government and the court tell us that the law is the 1926 law. “But we beg to differ,” says he, “The aims of framing the 1926 law are not in compliance with what the constitution refers to in Article 108. We do not want further amendment of the 1926 law. We need a new one.”
Tracing the reason why we don't have a contempt law, Kabir says that after our independence, “the subsequent governments of the country's ruling classes, who are still suffering from colonial hangover of various kinds” have retained the contempt of court law made by the British colonial rulers in 1926. To take advantage of the unjust colonial legislation enacted as many as 85 years ago, the governments are not enacting a new law.
As we have mentioned earlier, the contempt act is closely related to freedom of expression. Rahman informs that in other countries, the Supreme Court uses the law with very limited scope. “In our constitution, the freedom of speech has been guaranteed with 'reasonable restrictions.' Who defines the reasonable restrictions?” he says, “The parliament is supposed to define that through a law. But the law is not there. Having no law is the worst threat to freedom of expression in the country.”
Coming back to the issue of deeming truth as 'no defense', Kabir remembers an incident in 2002. “In a contempt of court case, a High Court bench punished the chief editor and the editor of a Bangla daily, Manabjamin, with both imprisonment and financial penalties, as they allegorically reported on an unethical discussion between a powerful accused in a graft case and a High Court judge trying the case. That the report was based on solid facts was adequately proved in the courtroom, and subsequently the court penalised the accused concerned on the basis of the reported facts.” He says. On the basis of the same reported facts, according to him, the court observed that the country's Supreme Judicial Council should probe into the misconduct of the individual judge. “Clearly, the journalists in question helped the higher judiciary prevent a miscarriage of justice by way of bringing to light the unethical liaison between an accused and a judge trying the accused,” he adds, “Still, the High Court bench handed down punishments to the journalists, claiming that they had 'scandalised' the court, which is an offence under the existing contempt of court law.”
In 2010, the acting editor of of daily Amar Desh Mahmudur Rahman was convicted for contempt and was sentenced to serve six months in prison and fined Tk 1 lakh for gross contempt of court.
“It was a case where the court had violated the maximum limit of financial punishment, which is Tk. 2000,” regrets Mizanur Rahman, “That law was violated for the first time in our history. It was a dangerous conceptual aberration. It also set a precedent of crossing the limit of a law.”
Rahman adds, “The justification given for crossing the limits of punishment was that they followed Article 108 of the constitution. But they probably missed the phrase, 'subject to law' in the Article.”
In the 70s and 80s most of the commonwealth countries amended their contempt law to cope with situations of modern society. But our Law Commission draft still has provisions like 'truth is not defense', points out Rahman.
Commenting on the existence of this provision, Kabir says that it is impossible for any “reasonable being on earth” to appreciate the “abuse of the contempt of court law against the writers/journalists committed to truth.”
He brings the example of a 1978 case of contempt in the Supreme Court of India. Justice Krishna VR Iyer, a former Chief Justice of India wrote in the judgement, “To criticise a judge fairly, albeit fiercely, is no crime but a necessary right. Where freedom of expression subserves public interest in reasonable measure, public justice cannot gag it or manacle it.”
Kabir concludes, “In the absence of a just law, democratically oriented and socially engaged writers and journalists of the country, committed to democratic justice, often find themselves caught between their intellectual responsibility to critically analyse various judicial decisions affecting the public interest on the one hand and the Damocles' sword of the unjust contempt of court law on the other.”
On the other hand, Rahman sees grounds for optimism, because a draft of contempt law has been proposed in the parliament. But it has not been passed yet. He thinks that the proposed draft substantially meets the needs of our country. “But passing the law is being delayed. There is no reason to believe that putting off the proposed draft is apolitical,” says Rahman, “In the last three years, the present government has tried to solve many contentious political issues that should have been solved on the parliament floor, in the court.”
In his opinion, since the government uses the court to reach political ends, it is reluctant to pass the contempt of court law. “Passing the law will empower the critics of this phenomenon. I feel vulnerable and insecure as a citizen as long as the new law is not passed in the parliament,” he concludes. What is needed at present is the enactment of a law in the parliament. The process needs to be transparent and it should take into consideration the different stakeholders who might be affected by it.
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