Photo: Sk Enamul Haq

When he was a judge of the High Court Division, Justice ABM Khairul Haque in a verdict on contempt of court ordinance in 2008 said the power to punish anybody for contempt of court was created to ensure litigants the benefit of verdicts for the sake of fair justice. The power was not created for the personal purpose of judges.
Justice Haque, who was later appointed as the chief justice of the Supreme Court, in his 2008 verdict that scrapped the contempt of court ordinance, described briefly the history of the contempt of court.
Undermining the King's order was considered a grave offence in ancient times. Since then people who defied the King's orders were tried summarily and put behind bars. During the regime of King Henry III [1216-1272] judges imposed fines on employees of courts and others for their activities beyond the court's orders.
The King of England was considered the fountain of justice and he had inherent power of holding any sort of trials. When the King sat to hold trial, it was known as King's Bench. He was the owner of all the supreme power. And he was also above the law literally.
No one dared to defy any order or verdict delivered by the King since such an act was considered as a grave offence and for which death penalty was the only punishment.
Later, judges empowered by the power of the King carried out judicial proceedings and their supremacy was like the King of England. They were also empowered with the inherent power of the King to hold trials.
During the British colonial regime in the Indian sub-continent, the Supreme Court was set up in Fort William in 1774 with the same and all powers including the contempt of court power of the King Bench.
Following a series of developments, the British regime enacted the contempt of court act in 1926.
In view of Professor Shah Alam, who teaches law at the University of Chittagong and now a member of Bangladesh Law Commission, the motive behind the contempt of court act made by British colonial rulers in 1926 was to gag all sort of criticism against judiciary in the Indian sub-continent.
They were in favour of the judiciary not for the sake of independence of judiciary. They rather used to abuse the judiciary against people of this sub-continent to rule them. But people and media could not criticise the judiciary's role due to the contempt of court law.
"That was an abnormal law. It did not have any definition of contempt. But the law had lasted for around a century as all the successive ruling classes accepted it," sates Prof Shah Alam.
Professor Sarkar Ali Akkas, dean of law faculty of Jagannath University, says the law of contempt of 1926 curbed the role of media in scrutinising judges. That was an insufficient law. The principles of contempt of court were not specifically provided by that law. There was no definition of contempt of court.
Therefore, contempt of court was a barrier to the role of the media in scrutinising judges, although, freedom of the press is an important fundamental right in Bangladesh. Since the law of contempt of court itself was uncertain, freedom of the press was always at risk, he states.
Around a decade ago, Prof Akkas in his book styled 'Independence and Accountability of Judiciary: A critical review' described in detail the situation.
"For the sake of ensuring the public accountability of judges, the law of contempt of court should be changed providing detailed principles including a clear definition of contempt of court," he wrote in his book.
The past caretaker government led by Fakhruddin Ahmed moved to make a new law of contempt. To make the law, then president promulgated an ordinance in 2008. But a High Court Division bench consisting of Justice Khairul Haque and Justice Abul Tarique declared the ordinance unconstitutional and void.
Later, the present Awami League-led government again moved to enact a new law on the contempt of court and placed a bill in parliament on June 14, 2011. The parliament repealed the British- colonial regime's law of contempt and passed the bill to enact a new law of contempt on February 19 this year.
The new law defines two types of contempt of court – civil and criminal. The law was considered a strong step to strengthen people's right to freedom of speech and the freedom of press as it did not consider as contemptuous the publishing of impartial and objective reports on judicial proceedings and making objective and unbiased comments on the merits of a case after its final disposal.
In absence of any such specific protection, media and people in general had been finding it difficult to write even objective reports or make comments on judicial proceedings, fearing action under the contempt law of 1926.
In defence of the enacting the new law, a parliamentary sub-committee formed by the parliamentary standing committee on the law justice and parliamentary affairs ministry in a report said in absence of any definition in Contempt of Court Act, 1926 judges on many occasions, have drawn contempt proceedings against the judges of lower courts, civil servants and journalists which have no relevance either violation of the court's order or disrespect to it but related with personal affairs arising out of their personal entitlement of accommodation, passing of the bills by the audit department and using some other public facilities.
"But the fact remains that issues which have no relevance with the court proceeding and relates to personal affairs of a judge shall not be dealt with within the scope of power of contempt as it hinders to put in place transparency and accountability," observed the parliamentary sub-committee in its report prepared in mid of 2012 after reviewing the then proposed bill on the contempt of court.
But the new law lasted only for a few months. The High Court on September 26 declared the law illegal and unconstitutional. Alongside giving some protection to the media, the law had also provided the government officials with some protection against the court of contempt charges. The High Court said both the provisions were discriminatory and against the constitution.
Interestingly, identical media-friendly provisions exist in the contempt of court law in India, the largest democratic country in the world with a vibrant judiciary. Passed in 1971, the law says fair and accurate reporting of judicial proceedings and fair criticism of judicial functions will not be considered as contempt of court.
India did not attempt to protect the government officials the way Bangladesh has.
In view of some legal experts and academics, the High Court should not have declared illegal the provision on the freedom of speech and freedom of press. They supported the court's ruling against the provision that had tried to protect the government officials in unjustified way.
The Appellate Division of the Supreme Court will now decide the fate of the High Court verdict and the fate of the contempt of court law as well.
The constitution is the source of power of the court. And the constitution as the solemn expression of the will of the people emphatically states all powers in the Republic belongs to the people. So, people's freedom of speech should not be limited in any unjustified way. Democracy cannot flourish by stifling freedom of speech and the freedom of press.

The writer is Senior Reporter, The Daily Star.