On 5 December last year, an epoch-changing verdict was passed by the African Court on Human and People's Rights regarding freedom of expression. Much on the lines of the European Human Rights Court and the European Court of Human Rights (ECHR), this regional court of Africa was launched on 25 January in 2004.
In a case filed by Lohe Issa Konate, editor of the Burkina Faso weekly L'Ouragan, the verdict of African Court on Human and People's Rights stated that the prison sentence and fine imposed on the editor for defamation of a magistrate and a state attorney, was a violation of his freedom of expression. In November 2012, Mr. Konate had been given a one-year prison sentence and a $12,000 fine. His paper had been closed down due to the prison sentence. But now the African Court on Human and People's Rights have ordered compensation for the time he spent in prison and has directed Burkina Faso to amend the defamation clause in its criminal law. Institutions pertaining to freedom of speech and the protection of journalists have lauded this verdict and said that it would create opportunity for a more vibrant media.
Not all African countries, afflicted with political unrest, tribal conflicts and clashes, participated in the convention to create this court, but 15 of the 27 African Union member states have accepted it. While much progress has been made in Europe and Africa regarding multi-national courts or judicial systems to protect human rights and freedom of expression, no such experimentation has been made by the SAARC or ASEAN nations.
There is a fine, and sensitive, line between freedom of expression and defamation or libel, leading to an endless debate on the issue. However, dictators and autocrats, along with their councils, have always used the defamation law to control and coerce the media in order to keep their weaknesses, corruption, misdeeds as well as their unethical and unlawful activities, under covers. An awareness is growing around the world that such practices cannot continue in this age of democratization. However, when it comes to Bangladesh, in which direction are we going? I doubt if anyone has been able to keep account of the number of defamation cases filed against editors in Bangladesh over the past one year. In the case of certain dailies, the number of such cases has crossed all limits.
Many countries have accepted the fact that contempt of court and other libel laws made during British colonial times are no longer relevant to democratic concepts. In fact, after three reforms of the relevant clauses, the British are now considering to altogether do away with the law pertaining to contempt of court. The ground reality is, most countries of the democratic world have reformed this law to such an extent that it is virtually an ineffective one. Freedom of expression now takes precedence.
As a result of all these reforms, the contempt of court laws now place more focus on attempts to influence justice. On the other hand, in the liberal stance towards freedom of expression, criticism of a verdict or pointing out errors of the court or a judge is considered acceptable democratic behaviour, if it is not ill-motivated but done in the interests of justice and public welfare.
It is evident from the verdict in the 1899 McLeod vs. St Aubyn case that a colonial mindset was at work when this law was created in Britain. In its argument, the Privy Council stated that while contempt of court was no longer practiced in England, this law was required to uphold the honour of the English court in the non-white colonies. In other cases where contempt of court was considered a criminal offence, the main judicial consideration was that the people of colonies were mostly "non-white", "illiterate" or "low-class".
A startling decision regarding contempt of court is found in the NSW Attorney General vs. Mundey case of Australia. Justice Hope stated, "There is no more reason why the acts of court should not be trenchantly criticised than the acts of public institutions, including parliaments. The truth is of course that public institutions in a free society must stand upon their own merits; they cannot be propped up if their conduct does not command the respect and confidence of the community. If [the judiciary's] conduct justifies the respect and confidence of a community they do not need the protection of special rules to protect them from criticism."
That is why in Britain, Australia and New Zealand, when it comes to the contempt of court law, it is essential to determine whether there is any risk of the people's confidence in the judiciary being harmed. And the scope for contempt of court in the US has been narrowed down much longer ago. The Supreme Court there has made it clear that there will be contempt of court only if there is clear and living risk to the carrying out of justice. Other than when it comes to certain legal constrictions and the necessity to uphold the court's rule, the European Human Rights Court and the European Court of Human Rights hold a different view regarding whether a contempt of court law is required at all in a democratic society.
In the developed countries whenever strict application of the contempt of court law has been taken, it has invariably been when there has been obstruction to justice or attempts to influence a trial. This calls for journalists to show respect towards the right of an accused person to be regarded as innocent until proven guilty.
In our country there is little or no trend to follow certain rules or policies regarding reporting or publishing any sub-judice matter. But no one has been held accountable for this either. Media trial has become a common matter in Bangladesh. On the other hand, we have no end to apprehensions when it comes to criticising any verdict. In many cases, criticism of a verdict is considered contempt of court. But reality is that, criticism of a verdict does not mean disobeying the verdict.
The explanation of what constitutes contempt of court can be extremely wide and varied. This can include an event in court or a comment, statement or publication outside of the court. It can also be in the social media, on Internet, beyond the jurisdiction of the court.
In this digital age with various publications able to pierce though state restrictions and limitations, there is urgent need for laws to be reformed in all countries. In Britain, journalists are allowed to use Twitter in court. There is initiative to make changes in the law pertaining to contempt of court.
In Bangladesh, the new Chief Justice Surendra Kumar Sinha, speaking at a reception accorded to him by the lawyers' association, said that the laws of colonial times would have to be rendered appropriate for democracy. Pointing to the criminal, civil, penal and other laws of British colonial times, he said that these did not reflect democratic values.
In a different context, prime minister Sheikh Hasina recently said, "We have been enslaved by the British. I do not see any reason to uphold their heritage." She made these remarks while issuing orders to pull down certain historically important buildings of Dhaka to resolve the city's housing problems. I do not know whether this will include demolishing the plush colonial houses in which ministers, state ministers and important government officials live on Minto Road and Hare Road. If the prime minister is so sincere in erasing the subservient past, then before the century-old buildings, she should first change the laws and regulations that have been passed down from those colonial times. This particularly applies to the contempt of court law drawn up by her government in 2013 and which was rejected by the Supreme Court as it was not supported by the constitution. This law should be reformed in such a manner that freedom of expression is not curtailed in any manner at all.
Kamal Ahmed: journalist