The Contempt of Courts Act 2013 that the High Court recently scrapped was, professionals said, a good law because it could have effectively protected freedom of expression and the media.
They, however, said the provision that gave impunity to the bureaucracy was problematic.
On September 26, the High Court bench of Justice Quazi Reza-Ul Hoque and Justice ABM Altaf Hossain annulled the law, saying it contradicted the constitution because it curtailed the court’s authority and protected only the journalists and public servants while disregarding other citizens.
Dr Kamal Hossain, whose statement the court kept record of, said on September 25 that the law was nothing like Ziaur Rahman’s 5th amendment. It was a good law and therefore it should not have been challenged, he observed.
Legal professional Shahdin Malik said the idea of contempt of court was medieval; blocking the path of criticism was not healthy for democracy.
Additional Attorney General MK Rahman told the Dhaka Tribune that the government was likely to lodge a plea with the chamber judge of the Appellate Division seeking a stay order on the ruling.
He added that the government could not file an appeal against the HC verdict because the full text of the ruling was yet to be published.
On June 9, 2005, the Law Commission, then led by former chief justice Mustafa Kamal, made a draft bill to modernise the contempt law. The Act of 2013 by and large accommodated most of the recommendations set out by the commission.
One of the recommendations that the 2013 law accommodated said the publication of fair and accurate reports on the proceedings of a court, as well as fair comment on a judgement, would not amount to contempt.
However, the provision on the impunity of bureaucracy was not a part of what the commission said.
The revoked Act was promulgated on February 22 this year, replacing the 1926 version in the wake of strong demand from media and public servants.
In March this year, lawyers Asaduzzaman and Ayeasha Khatoon lodged a public interest writ petition with the High Court questioning certain sections of the 2013 law, which the court scrapped after hearing the petition.
Deputy Attorney General Biswojit Roy told the Dhaka Tribune that the public interest petition was not justifiable because the petitioners were not adversely affected by the law.
Manzill Murshid, lawyer of the petitioners, told the Dhaka Tribune that the petition mainly objected against the immunity that the law had given the public servants. “Some media houses tried to make an issue saying their freedom was shattered. But it is not like that. The media can keep on writing or commenting on a judgment just like the way it did before the law was enacted.”
After the judgement, Justice Quazi Reza-Ul Hoque said: “The press is now a big power. We, in no way, want to limit the press. Every day we take help from the press, even in court. But it has to stay within a certain limit.”
Prof Shah Alam, member of the Law Commission, told the Dhaka Tribune: “The Act is in no way contrary to the constitution. I do not find anything wrong about the provision on press and freedom of expression. But at the same time giving immunity to bureaucracy creates a hurdle in establishing justice.”
He said he believed that the Appellate Division would not uphold the High Court verdict. Rather, he expected that it would give some meaningful directions for amending the law.
The British-era Contempt of Courts Act 1926 was enacted for serving colonial interests, which did not clarify what would amount to contempt, Prof Shah Alam said.
Absolute power cannot be trusted on the Supreme Court regarding contempt, he added.
Additional Attorney General MK Rahman said the 2013 law did not curtail the Supreme Court’s authority because the constitution allowed the Supreme Court to practice its power to try contempt charges under the law promulgated by parliament. He also said there was no law in the country for trying contempt of court charges.
Shahdin Malik said a vacuum had been created by the annulment of the contempt law.
Manzill Murshid said: “[With the annulment of the 2013 law,] now the act of 1926 is revived. It will deal with the contempt of lower courts, and the Supreme Court will try contempt of itself according to the constitution and its judgements.”