The last bulwark of a state is its courts of justice. There can be a kingdom without an army, but public confidence in the authority of the state cannot remain if there are no courts of justice.
An act constitutes contempt if it is calculated to interfere or has the tendency of interfering with the due course of justice.
The current legislation in Bangladesh, the Contempt of Court Act 1926, is said to have failed to strike a balance between protection of judiciary and freedom of expression. It is generally felt that the 1926 Act has been used more to protect judges from justified criticism and public scrutiny.
Contempt of court is an exigent part of judiciary. The courts are usually referred to as one of the most fundamental institutions where power is challenged in a constitutional democracy.An efficient and independent judiciary can pin down and seize the executive accountable together with other state institutions, as well as political and economic elites. A vigorous judiciary is crucial in establishing rule-based authority.
What constitutes contempt of court?
Civil contempt consists in willful disobedience to the judgments, orders, or other processes of the court. Any willful disobedience to the order of the court to do or abstain from doing any act, or the breach of any undertaking given to the court, is prima facie a civil contempt. A disobedience to the summons issued from the court is also a civil contempt.
Criminal contempts are criminal in nature. They include outrages on judges in open court, interference with persons attending court, libels on judges or courts or their officers, insolence to judges or comments in court on their decisions interfering with witnesses or jurymen or officers of the court, creating disturbance in court, and any publication which offends the dignity of the court.
In Bangladesh, a new law, Contempt of Court 2013 was set in motion repealing the age old Act of 1926. The enactment of the 2013 law was in arrears for long. It was argued by many scholars that the extremely badly understated statute of 1926 was passed for serving up the colonial rulers.
However, the High Court, on September 26, 2013 declared the “Contempt of Court Act 2013” as illegal and contradictory to the constitution in a writ petition, where it was claimed that sections IV, V, VI, VII, IX, X, XI, and XIII (2) of the Contempt of Court Act contradict with the constitution.
According to the challenged provisions, the court cannot issue any summon against any government official if they have committed contempt of court and contempt of court cases against them become ineffective just after their retirement.
As a result of this High Court decision, the 1926 Act is our effective law on contempt of court.
The present statute of 1926 contains three sections. Section One provides the short title, the extent of area where the law shall be applied, and the time of commencement. Section Two provides for the power of superior courts to punish contempt of court, and Section Three provides for the limit of punishment.
The balance in between
Freedom of speech and expression includes the right of every citizen to criticize the court, the judiciary as an institution, and its functioning. The major international and regional human rights instruments on civil and political rights -- the International Covenant on Civil and Political Rights (ICCPR), the European Convention on Human Rights (ECHR), the American Convention on Human Rights (ACHR), and the African Charter on Human and People’s Rights (ACHPR) -- all protect both freedom of expression and the administration of justice.
Article 39 of the Constitution of the People’s Republic of Bangladesh also provides for the freedom of thought and conscience, and of speech for the citizens of Bangladesh. The courts, to maintain their independence, use the power of contempt to punish one who lowers the dignity of the court or interferes with administration of justice. This in particular is the conflict between freedom of speech and expression and contempt of court.
A public space within contemporary Bangladesh is one where alternative opinions are gradually being silenced
Both freedom of speech and power of contempt are fundamental for a democratic setup. Both are for the benefit of the public and should be exercised accordingly. Freedom of speech and freedom of press ensure judicial accountability, whereas power of contempt ensures fair administration of justice.
Between a rock and a hard place
A court in Bangladesh initiated contempt of court charges against 23 people who had signed a letter in support of British journalist and blogger David Bergman, who himself was convicted of contempt of court in December, 2014.
In 2013, the International Crimes Tribunal of Bangladesh (ICT) accused David Bergman of hurting the “feelings of the nation” for three blog posts he had written. These supposedly questioned the evidence upon which the official death toll during the war is based.
The judgment stated that “freedom of expression can be exercised in good faith and public interest. David Bergman neither has good faith nor an issue of public interest.” He was given a Tk500 fine (£40) as well as a sentence of imprisonment “till the rising of the court,” meaning he had to remain in the courtroom until the judges left their seats.
David Bergman told reporters afterwards that the ruling was a matter of “great concern to those interested in freedom of speech and the proper scrutiny of state institutions.”
Following his conviction, a group of journalists, academics, and activists made a statement which was published in the largest circulated newspaper in Bangladesh, Prothom Alo. Mr Delwar Hussain, an anthropologist based at the University of Edinburgh and the author of Boundaries Undermined: The Ruins of Progress on the Bangladesh-India Border
, was one of them. The letter expressed concern regarding David Bergman’s conviction and the use of the law of contempt of court to curb freedoms of speech and expression in Bangladesh.
Mr Hussain on openDemocracy, an independent global media platform, said that a public space within contemporary Bangladesh is increasingly intolerant, a frightening, dangerous place for advocates and proponents of free speech and ideas.
It is one where alternative opinions, minority beliefs, and practices are gradually being silenced and muted. Whether these are voiced or conducted by those who are critical of the ruling party, of ideas of the past, about god and religion, or by essentially rebels against the status-quo -- all find themselves between a rock and a hard place. That is, between the future offered by the state and its paramilitary functionaries, and those with an extremist interpretation of Islam.
Neither version is what the majority of Bangladeshis need or want.
Therefore, as guaranteed under Article 39 of the Constitution, we must endeavor to protect freedom of thought and conscience, speech and expression of every person within our territory.
However, as this freedom of speech and power of contempt are elemental for a democratic setup, both should be exercised in a balanced way for the benefit of the public.
Tasmiah Nuhiya Ahmed is Advocate, Supreme Court of Bangladesh and a research assistant at Bangladesh Institute of Law and International Affairs (BILIA).