Defamation laws are being widely misused in the country curtailing the freedom of expression and press, and ultimately forcing many to undergo self-censorship, experts said at a roundtable yesterday.
Many of the experts recommended making defamation a civil offence, not a criminal one, and stressed the need for clarifying the definition of “aggrieved person” as there were instances where third parties, who do not fall under the purview of the law, filed such cases.
Mentioning that independence of the judiciary is a must to ensure freedom of expression and press, the speakers, who included Supreme Court lawyers, university teachers, journalists and rights defenders, called for overcoming the existing obstacles unitedly.
The Daily Star organised the roundtable titled “Use and Misuse of Defamation Law and its Impact on Journalism” at The Daily Star Centre in the capital. The discussion was organised amid growing concern over the freedom of speech, expression and press, especially after the passage of the Digital Security Act last year.
SC lawyer Khurshid Alam Khan said the High Court, not the magistrate or sessions courts, should deal with the trial proceedings of defamation cases.
He said the trial proceedings of a defamation case filed under Section 500 of the Penal Code are connected to Article 39 of the constitution, but the magistrate courts or the sessions courts do not have the jurisdiction to opine or interpret the article. Only the HC can express opinion on the article, he said.
“So how can a judge hold the trial of a case filed under Section 500 [of the Penal Code] if he or she doesn’t have the jurisdiction to explain the article?” Khurshid, also the editor of Dhaka Law Reports, said.
“The responsibility of holding trial of defamation cases need to be given to the original jurisdiction. It means a constitutional court -- the High Court -- should handle the issue,” he said.
Khurshid, also the chief prosecutor of the Anti-Corruption Commission, then mentioned that many on Facebook made defamatory remarks against him following a verdict on a top opposition leader in a corruption case. He said he was in favour of considering defamation as a criminal offence.
At the roundtable, Advocate Manzill Murshid, president of Human Rights and Peace for Bangladesh, said in the context of present day digital era, there was a need for a law to protect people on the digital platforms.
Talking to The Daily Star after the programme, he said Article 39 guaranteed the freedom of speech and expression, but it was subject to “reasonable restrictions”.
Under the garb of those restrictions, the state has formulated some acts, including defamation laws, digital security act, press council act and contempt of court laws, he said.
“Those acts are existing in the country in respect of freedom of speech, but a few years ago there was not so many allegations that those are misused.
“But now-a-days, we find in many cases that the authorities concerned are abusing the provisions of the defamation and other laws. It is happening because of the weaknesses in the rule of law and absence of an effective democracy.”
Addressing the discussion, Prof Asif Nazrul of Dhaka University’s Law department said defamation act was a much-talked-about issue all over the world.
Freedom of many media outlets, including print and online, as well as citizen journalism received blows with filing of cases under the defamation laws, he said.
He said the act of defamation in Bangladesh should be considered to be a civil offence as this would reduce chances of harassment by police and government prosecutors and also help people defend themselves.
Asif added defamation laws were being used to suppress different opinions.
Supreme Court lawyer Jyotirmoy Barua said there was a need for re-examining the issue of “reasonable restrictions” imposed on freedom of speech in the Article 39.
The article says, “Freedom of thought and conscience is guaranteed. Subject to any reasonable restrictions imposed by law in the interests of the security of the state, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence– a) the right of every citizen to freedom of speech and expression; and (b) freedom of the press are guaranteed.”
Jyotirmoy said, “I have serious doubt whether the restrictions mentioned in the article 39 is really ‘reasonable’ restrictions. I really want to examine those. Because these restrictions are the basis of all subsequent repressive laws”.
Due to these constitutional restrictions, he said, lawmakers get constitutional mandate to enact “repressive laws”. Until these restrictions can be eliminated, more repressive laws will come, he feared, as the law-making process cannot be challenged before court due to relevant constitutional restrictions.
Referring to the existing laws that deal with defamation cases, he said, “The existing law leads itself to misuse because it is vague and subject to various interpretation.”
Syed Ishtiaque Reza, chief editor of GTV and Sarabangla news portal, said one of the major concerns these days was defamation cases were being filed by third parties. He said local journalists were the main victims and that they lack necessary legal support.
He said the journalists’ union is sharply divided on political lines and they cannot take a firm stance even for freedom of the press. “Good journalism is possible if we can stand united at least in issues like press freedom,” he said.
“Self-censorship has reached such a level that we know when and where we must stop,” he said, adding that journalists have to think twice before writing anything against anyone.
Mizanur Rahman Khan, joint editor of the Prothom Alo, suggested building a consensus among the stakeholders to decriminalise defamation as the UN Human Rights Committee and other international bodies have recommended it.
“We [however] are witnessing harsher punishment in DSA [Digital Security Act] like new draconian laws that also dealt with defamations at a time when the UNHR committee clearly suggested avoiding excessively punitive measures and penalties,” he said in his written speech.
He said while the Indian law commission favours decriminalisation of defamation, the Bangladesh Law Commission in 2007 had refused to consider a request from the then caretaker government for decriminalising defamation.
Stressing the need for the independence of judiciary, he said, “Judicial independence is a must if we want press freedom.”
Another Supreme Court lawyer Qazi Zahed Iqbal said a proper explanation of the term “aggrieved person” is absent in defamation laws and this should be settled.
This would help reducing filing of “unnecessary cases”, he observed.
Defamation laws are notoriously known as “draconian” because there are scopes to misuse the laws, he said, adding that a change in people’s mindset is also required to stop such misuse.
SC lawyer Barrister Aneek R Haque an act of defamation should not be considered as a criminal offense under any circumstance. Instead, it should be considered as a civil offense.
He pointed out that many web portals were “acting in a strange way” in the name of journalism. He said necessary steps should have been taken against them to hold them accountable.
Sarkar Barbaq Quarmal, assistant professor at University of Liberal Arts Bangladesh, said many media houses, including those widely trusted by the people, had to exercise “self-censorship” due to enactment of certain laws.
They had to restrain themselves from publishing certain reports, including those on corruption and investigative reports, he said.
He, however, cautioned against too much self-censorship saying that people might lose their faith in journalism if media outlets fail to report facts and run investigative stories.
Faruq Faisel, South Asia regional director of rights organisation Article 19, recommended that the age-old Printing Presses and Publications (Declaration and Registration) Act-1973 should be updated.
Saleem Samad, Bangladesh representative of Reporters without Borders, said representatives of different international organisations which are working in the country for media freedom have recently sat together to build a network.
Their one major issue was to press the authorities to decriminalise defamation laws, he said.
Khairuzzaman Kamal, secretary general of Bangladesh Manobadhikar Sangbadik Forum, said beside legal battle, civil society members, journalists and lawyers have to work on a common platform to push forward – of freedom of expression and press freedom.
Syeed Ahamed of Frontline Defenders said laws are supposed to be formulated to uphold people’s rights.
However, new laws were formulated and those curtailed people’s rights, he said.
While moderating the programme, Mahfuz Anam, editor and publisher of The Daily Star, said there is a need for a defamation law in every society to protect people’s reputation and dignity, but how the law is being executed is very important.
“We are observing that people’s freedom of expression is being curtailed when the defamation act is being misused and the defamation law is almost becoming like a new avenue of repressing the press,” he said.
This is happening not only in Bangladesh, but also in other countries, he said. “Governments are intensifying control over freedom of speech and press by using defamation laws.”
At the beginning of the programme, a power point presentation was demonstrated by “Law and Our Rights” desk of The Daily Star.