Freedom of expression: subverted

by CR Abrar

02At the beginning of the month of anniversary of its freedom, the nation was quietly reminded of the tenuous foundation over which one of the most cherished freedoms currently rests. International Crimes Tribunal 2 convicted and sentenced a journalist on charges of ‘contempt of court’ for citing figures from published research on casualties during the war of liberation of 1971. Although the conviction did not elicit much concern among the habitual standard-bearers of ‘the spirit of war of liberation’, it portends worrisome signs for the freedom of expression in the country. Rights activists believe that the judgement in this case has taken away the right of a person ‘to examine and comment on the differing historic narratives… including the official ones’. They have also observed that the judgement ‘may have a stifling effect on the freedom of expression with ramifications for journalists and other writers and hinder research and debate on the history of our war of liberation’. Curiously, the laws of the contempt of court in Bangladesh do not allow appeal, undermining the very concept of due process and the rule of law. There is little scope to view this judgement of the higher judiciary in isolation.
The constitution of Bangladesh has guaranteed the ‘[f]reedom of thought and conscience’ (Article 39/1) and subject to reasonable restrictions imposed by law, ‘(a)… freedom of speech and expression, and (b) freedom of the press’. While the Universal Declaration of Human Rights provides a normative basis that led to formulating the standards for the freedom of expression, Article 19 of the ICCPR, of which Bangladesh is a state party, stipulates that ‘[e]veryone shall have the right to hold opinions without interference’ and ‘everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice’.
Despite securing such lofty commitments from the state, the freedom of expression for people of Bangladesh has continued to remain elusive. During its more than four decades as an independent state, although the masses have been subjected to various forms of governments — parliamentary, single party dictatorship, military, quasi-military, prime ministerial authoritarianism — it meant little to the populace’s enjoyment of the freedom of expression and the press. The state continued to be administered along authoritarian rule, habitually undermining fundamental rights of the citizenry. In such a context, the constitutional guarantees of freedoms were subverted by a plethora of rules and regulations, as well by state practice of monopolising control over sections of the media through issuance of licences to preferred clients, disbursement of quotas of newsprints and advertisement, and no less important, through various directives of the chief executive’s office.
It is interesting to note that media control has been a rare case of bipartisanship in an otherwise deeply fractured policy. Repressive and freedom-curbing laws legislated by the one faction of the ruling elite was not only retained by the other when it comes to power, often those are reinforced. Despite their commitments to the great spirit of the war of liberation and their vow of making a complete break with the freedom-curbing colonial and Pakistani past, successive governments in Bangladesh assiduously pursued policies of control and coercion to curtail the freedom of expression.
The failure of the ruling class to recognise the important link between freedom and development has resulted in a situation where the ruling faction is guided by its own petty and immediate partisan interest. Instead of emerging as a hegemonic class, appreciating the need for and establishing enabling conditions for healthy debate and discussions, it has tended to curtail freedom and rely on control and coercion. There is a palpable lack of appreciation of positive role of criticism and disagreement. Such reasoning pervades the psyche of the power holders and has resulted in shrinking of the democratic space and general intolerance for dissent. Let us take a few recent examples.
The recent amendment to the Information and Communication Technology Act 2006 is a good case to examine. Under Article 57 of the amended act, if any person deliberately publishes any material in electronic form that causes to deteriorate law and order, prejudice the image of the state or person or causes to hurt religious belief the offender will be punished for a maximum of 14 years and minimum of seven years’ imprisonment. It also made the crime non-bailable. The amendment also empowered the police to arrest the offender without authorisation of the court.
The intent of the administration in amending the law can be questioned on several grounds. Firstly, it was decreed as an ordinance only days before the parliament was due to meet denying the august body to deliberate on the amendment that had major bearing on the enjoyment of fundamental rights of the citizens. Secondly, little effort was made to engage the public in the issue before proceeding with the act. Thirdly, no explanation offered by the government as to why the punishment were being augmented without clarifying the vagueness that exists in the original provisions of the law. An elementary knowledge of law would entail that provisions of penal laws should be clear and unambiguous. Moreover, in a situation where the criminal justice system is plagued by inordinate delays instead of putting in place measures to expedite disposal of cases, increasing the length of punishment will only undermine justice. Finally, the government has failed to assign reason for making offences under Section 57 cognisable, giving the police the authority to arrest alleged offenders without the court’s order. The decision to give the ill-equipped and ill-trained, and increasingly partisan police force, such extensive authority only bodes ill for the enjoyment of rights of the people. Observers have noted that the amendment had done away with the little degree of protection (non-cognisable and non-bailable) that the original law provided. The amendment would make the accused stay in prison for the entire duration of the legal proceeding until he is proven innocent or guilty.
The imprudent amendment has elicited adverse response from informed sections of society. A member of the high-profile digital task force, the highest government body of the ICT sector headed by the prime minister, was quoted saying ‘There is no doubt it is a black law…. Not just ICT people, every citizen should join hands to protect their rights by preventing execution of the law’. Others have gone on to note, ‘the government would not be able to tackle cybercrimes with this kind of “inefficient act”’. The president of the Bangladesh Computer Society is reported to have stated, ‘The law was inadequate to deal with cybercrimes’. Suggesting, ‘The law offers the scope for political misuse’, he also pointed out that it is in conflict with the country’s Evidence Act. Eminent jurist Shahdeen Malik has observed that the Section 57 ‘will take the country back to the mediaeval age’ and it has made the ICT Act ‘ridiculous’.
It is interesting to note that instead of responding to a 2010 Rule issued by the High Court as to why Section 46 and 57 of the ICT Act 2006 should not be held ultra vires (beyond the authority) of the constitution, the government has gone ahead with the amendment. The rule was returnable in four weeks. Among other things, the petitioners in this case (Writ petition no 4719 of 2010) argued that the provisions were vague and uncertain and provided the government with arbitrary powers, the penalties prescribed were disproportionate to the offences committed and they violated fundamental rights to the freedom of expression, freedom of association, the right to be treated in accordance with law, guaranteed under Article 31, 38, 39 of the constitution and Article 19 of the International Covenant on Civil and Political Rights.
The substance and the process of the Orwellian amendment to the ICT Act, 2006 only reflects contempt of the ruling party of the freedom of expression.
The year 2014 has also seen the framing of the new broadcasting policy by the government. In presenting the policy, the information minister tried to assuage public concern and reassured that it was not directed ‘to control’ the media, but to ensure that they enjoyed ‘greater independence and accountability’. He also stated that it was essentially in response to the demands of the members of the media ‘to bring about discipline’ in the sector.
It may be noted that the new policy was declared within weeks after discussions about the amending the Printing Presses and Publications Act to give back the power of rescinding the registration of newspapers to the deputy commissioners. In selecting members of the committee that framed the policy, the government pursued a partisan approach and engaged those who subscribed to the ruling party’s ideology. Even those members on the committee disapproved the final document that was churned out by the information ministry in the name of the committee. The framing of the policy before establishing the independent broadcasting commission and the associated rules betrayed the ill intent of the government.
In conditions of shrinking democratic space, the measures proposed in the policy details out the control mechanism. Some of the provisions are obviously directed to thwart broadcasting of footage indicating the government’s failure, irregularities and repression.
The courageous reporting of a section of the media on the excesses of the executive arm of the state (as in the infamous 7 murder case of Narayanganj), rampant corruption and arbitrary use of force by members of the law enforcement agencies, made it an important source of balanced information. Among other things, the policy reiterates the government’s entrenched position in continuing with the culture of impunity extended to the members of the law enforcement agencies and those in civil administration.
The new broadcasting policy came heavy on the talk-shows, hosted by a section of private channels that provided information, reflection and analysis of current-day events. Audiences, hungry for objective information and analysis, find these programmes rewarding as get the opportunity to secure contending views. The administration therefore has opted to bring in line channels that have been responding to popular demands for unbiased reporting and differing perspectives. Hence, its insistence on streamlining the contents of the news and talk shows. The inclusion of the provision to include government programmes mandatory for the private channels will essentially result in turning the private channels as extended arms of the state propaganda. Its final goal is to ensure conformism.
In addition to framing of new laws and further sharpening existing ones, arrests for making ‘derogatory remarks’ have also become a favoured weapon in the arsenal for the ruling faction. Over the last several months, a number of arrests have been made for making ‘derogatory remarks’ about the political bigwigs. Rights activists have expressed deep concern for levelling criminal charges for satire and posting comments on web sites. Such an intolerant approach to the freedom of expression is reminiscent of mediaeval times when any criticism or satire of the monarch was regarded as irreverence, inviting retribution from the state.
Increased filing of cases against individuals for ‘hurting public sentiment’ through what is stated to be objectionable comments also marks the period. While as per the law the aggrieved party needed to establish its bona fide. Now any individual is allowed to file case for making such comments without having to establish bona fide of their claim. Since cases are filed under the criminal law, the respondents have to be physically present in courts that may be located in far-flung parts of the country causing hardship and harassment to the accused. This has become another ploy for curbing criticism.
Finally, although the ambit of the contempt of court law has been narrowed down in various parts of the world, in Bangladesh it continues to be used in its old form. It is left to the judges to decide if there is merit in the contempt charges. In a case against an editor and recent one against the journalist, factual accuracy was not what mattered solely. The the fact that the piece concerned was contemptuous was good enough for it.
Thus one finds that the freedom of expression, the mother of all rights, is under severe strain in Bangladesh. Curtailment of this right invariably impinges on other rights. It is unfortunate as the nation celebrates forty-four years of its freedom, the people have to continue to struggle for one of the most cherished freedoms — the freedom of expression.
CR Abrar teaches international relations at the University of Dhaka. He researches and writes on migration and rights issues.

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