Discuss the concept of “Article 39” of the Constitution & also the matter of “Freedom of speech”.

 Introduction

 Speech comes from speaking and the expression of feelings of mind. Speaking is a god gifted power of mankind. Freedom of speech and expressions are regarded as a fundamental freedom or liberty in any free, open, and democratic society. Freedom of speech is said to be the “first freedom” and “above all liberties”. In the Bangladesh constitution, free speech is guaranteed in the first Amendment of the Bill of Rights. Freedom of expression is guaranteed in UN and regional human rights instruments as well as nearly every national constitution, and the need to protect individual reputations, widely recognized by international human rights instruments and the law in countries around the world. The principles are based on the premise that in a democratic society, freedom of expression must be guaranteed and may be subject only to narrowly drawn restrictions which are necessary to protect legitimate interests, including reputations. In particular, they set out standards of respect for freedom of expression to which legal provisions designed to protect reputations should, at a minimum, conform.[1] , [2]Limiting the freedom of speech and expression for the betterment of a small group is one of the key hindrances in the way of democracy of a nation.

 Freedom of speech and expressions

 [3]Freedom of speech means the right to express the thought and view of an individual without any governing intervention. It can be written, verbal, body language or any other type of expression. In every democratic nation the right is must in the constitution and it should be guaranteed. United States guarantees freedom of speech by the enactment of the Amendment to the constitution. It guarantees the freedom to communicate ideas and opinions to every citizen of the United States without government intervention. Bangladeshi constitution also guarantees the freedom of speech and expressions. The importance of speech and expression is to fulfill the individual to attain self-fulfillment and find the truth of nature. Expression provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change.

 Freedom of speech and expressions in Bangladesh Constitution

 [4]Article 39 of the Constitution is the most important Article for this study as it provides provision for freedom of speech.

 39 (1) Freedom of thought and conscience is guaranteed. (2) Subject to any reasonable restrictions imposed by law in the interest of the society of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence-

(a) The right of every citizen to freedom of speech and expression; and

(b) Freedom of the press is guaranteed.

Article 39 clearly states that freedom of thought and conscience is unlimited, but other freedoms such as speech and expression and freedom of the press are not without restrictions. The restrictions referred to in Article 39 assume action only by law. Without legislative authority, the executive cannot place any restriction or limitations on these freedoms. To impose a restriction, the legislature must make a law only for that purpose. While a citizen may exercise such rights in normal situations, extenuating circumstances may create compelling reasons to depart from the normal functions of the state.

 The Importance of freedom of speech and Expressions

 The importance of free speech as a basic and valuable characteristic of modern society cannot be underestimated. The Universal Declaration of Human Rights was adopted by the United Nations in1948 and in its Preamble [5]“it was proclaimed as a common standard of achievement for all peoples and all nations.” It was the first study on the reorganization of human rights at the international level and has had remarkable influence on the improvement of national and international human rights law[6].

[7]Freedom of speech is also important to governments because when criticisms of a government are freely voiced, the government has the opportunity to respond to answer unfair comments and criticisms about its actions.

 [8]One of the difficulties inherent in discussing freedom of speech is that it contains what libertarians often describe as the paradox of freedom.[9]On a more practical plane, freedom of speech serves many functions. The European Court of Human Rights in a number of cases has emphasized the special importance of freedom of expression to democratic institutions. [10]For example in Handyside v. United Kingdom, the Court stated that, “Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man.” Freedom of expression provides the citizens with the right to participate to common life as a supporter and ensures their capacity to contribute in action and improvement of institutional organizations that serve the public welfare.[11]

 [12]As Cooray stated, “the freedom of speech is the single most important political right of citizens, although private property is required for its operation. Without free speech, no political action is possible and no resistance to injustice or oppression is possible. Without free speech elections would have no meaning at all. Policies of contestants become known to the public and become responsive to public opinion only by virtue of free speech. Between elections the freely expressed opinions of citizens help to restrain oppressive rule. Without this freedom it is futile to expect political freedom or, consequently, economic freedom. Thus freedom of speech is the sine qua non of a democratic society”.

Finally, the freedom of speech is the single most important political right of citizens, although private Without this freedom it is futile to expect political freedom or consequently economic freedom. The sine qua non of a democratic society is the freedom of speech.

 Restrictions of freedom of speech and expressions

 Under the section 97 of the Constitution reasonable restrictions can be imposed on freedom of speech and expression in the interest of security of State. [13]The term security of state refers only to serious and aggravated forms of public order e.g. rebellion, waging war against the State, insurrection and not ordinary breaches of public order and public safety, e.g. unlawful assembly, riot, affray.

As it mentioned above, freedom of expression is not only important in it, but also plays a vital role in the protection of other rights. However, to what extent can freedom of expression be protected? How it should be exercised. According to the resolution, the key points of exercising freedom of expression are “within the limits of the law”, “with personal responsibility”, and “based on respect for other’s rights and sensibilities”. The limits of the law mean justified restrictions and again their frame has been designated by the international instruments on human rights which provide protection to freedom of expression.

From the perspective of nation’s security, all the treaties about human rights allow limitations on freedom of expression when national security is discussed.[14] Again in almost all states where freedom of information is being protected under the law, national security is the general legal ground for the limitations in these laws.[15]

 Restrictions on the freedom of press are dissimilar the [16]American Constitution, Art. 19(1)(a) of the Bangladeshi Constitution does not expressly mention the liberty of the press. The specific areas of restrictions are related to the security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. Article 78 also deserves reference because it describes the privileges. Under the Special Powers Act of 1974, the Government may detain any journalist for six months without trial in prison.

 On behalf of racial hate speech Dr. Agnes Callamard claims that “this is the only positive duty upon states as far as restrictions of freedom of expression is concerned”[17] and adds that, “hate speech regulations, at least in theory, may be regarded as lawful and potentially necessary since they are protecting the right to equality, the right to mental and physical integrity, the right to be free from discrimination, and ultimately the right to life”.[18] The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by  law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

 A statement, which injures a man’s reputation, amounts to defamation. Defamation consists in exposing a man to hatred, ridicule, or contempt. The civil law in relating to defamation is still unmodified in Bangladesh and subject to certain exceptions.[19]

 In practice, the court let the member states have a “margin of appreciation” in deciding if it is needed to put a limit on the exercise of freedom of expression.

 It is in state responsibility to proof that the restriction has met the requirements. However at the same time, in its decisions the court reminds that “freedom of expression constitutes one of the essential foundations of any democratic society and subject to paragraph 2 of Article 10, it is applicable not only to information or ideas that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb.” [20]

 Opinion

 Freedom of speech and expressions cannot be restricted in bold hand. However, electronic and press media should be allowed to express views about different activities of the government. Criticism against government activities are for their own benefit and it is the right in a democratic country.

Put an end to any act of violence and any kind of harassment, including legal persecution, against journalists and human rights defenders.

Information has to be made available to general people; specially, regarding government activities so that transparency can be ensured. It is possible by making the information less costly and time effective. Information should be disseminated in a way that does not carry any threat to the security of the state.

More restriction can be put on the language of commercial advertise to make sure that the freedom of speech and expression is for the betterment of all people regardless of the class.         

 Conclusion

 Freedom of speech and expression is one of the most important fundamental right. There is no doubt that freedom of expression is one of the essential foundations of Democracy and it is important for the development and protection of other human rights. However, as mentioned before because of its potential of being harmful for the interests of Others or for the public benefit, Article 10 (2) states that “the exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties.” But in today’s world I think we need much more tolerance, understanding and harmony than the restrictions. If we show proper respect for rights and sensibilities of others, we will not need any limitations.

 However, while public benefit is an important factor, the test for allowing further restrictions upon free speech should strive to be somewhat more stringent. Legal restraints upon individual freedom of speech should only be tolerated where they are absolutely necessary to prevent infliction of actual harm or to secure the liberties of others. A more or less remote possibility that someone will be harmed or unbiased claims that the stability of society will be undermined is not sufficient justification for legal prohibition.

Bibliography:

Allen, D. 1995. Freeing the first Amendment: Critical Perspectives on Freedom of Expression. New York: New York University Press.

Alexander, A. 2005 Is There a Right to Freedom of Expression?. Cambridge: Cambridge Studies in Philosophy and Law.

BCDJC (Bangladesh Centre For Development, Journalism and Communication) (2003); Madhyam (Bangladesh Media Directory); BCDJC; Dhaka.

Bosmajian, H. 1999. Freedom Not to Speak. New York: New York University Press.

Curtis, M.K. 2000. Free Speech, “The People’s Darling privilege”: Struggles for Freedom of Expression in American History. North Carolina: Duke University Press.

Cohen-Almagor, R. 2006. The Scope of Tolerance: Studies on the Cost of Free Expression and Freedom of the Press. Routledge.

Council of Europe. 2007. Freedom of Expression in Europe: Case-Law Concerning Article 10 of the European Convention of Human Rights. Council of Europe.

Chowdhury, Afsan (2004). Media in Times of Crisis: National and International Issues. Shrabon. Dhaka.

Cohen-Almagor, R. 2005. Speech, Media and Ethics: The Limits of Free Expression: Critical Studies on Freedom of Expression, Freedom of the Press, and th Public’s Right to Know. Palgrave Macmillan.

Dworkin, R., 1977, Taking Rights Seriously. Cambridge: Harvard University Press.

Edwin Baker, C., 1989. Human Liberty and Freedom of Speech. Oxford: Oxford University Press.

Fish, S. 1994, There’s No Such Thing as Free Speech…and it’s a good thing too. New York: Oxford University Press.

 Fiss, O.M. 1996. Liberalism Divided: Freedom of Speech and the Many Uses of State Power. Boulder: Westview Press.

Graber, M.A. 1992. Transforming Free Speech: The Ambiguous Legacy of Civil Libertarianism. Berkeley: University of California Press.

Hashim Kamali, Mohammad. 1997. Freedom of Expression in Islam. Islamic Texts Society.

Halim, M. A. Rule of Law. Constitution, Constitutional Law and Politics: Bangladesh Perspective, Khan, M. Yousuf Ali, Eds; Rico Printers: 9 Nilkhet, Babupara, Dhaka-1205, 1998; 345.

Kramer, M., 2002, “Why Freedoms Do Not Exist by Degrees,” in Political Studies, Vol 50.

Lyons, D., 1994, Rights, Welfare, and Mill’s Moral Theory. New York: Oxford University Press.

Magee, J. 2002. Freedom of Expression. Greenwood Press.

Mcleod, K. 2007. Freedom of Expression: Resistance and Repression in the Age of Intellectual Property.Minneapolis: University of Minnesota Press.

O’Rourke, K.C. 2001. John Stuart Mill and Freedom of Expression: The Genesis of a Theory. Routledge.

Rahman, Golam and Ahmed, Helal Uddin (2004). Banglapedia: National Encyclopedia of Bangladesh.

Rahman, Mahfuzur (2004). The State of Media in Bangladesh. News Network. Dhaka.

Scanlon, T., 1972, “A Theory of Freedom of Expression,” Philosophy and Public Affairs, 1, no.2.

Thakker, C.K. Basic Constitutional principles. Administrative Law, 1st ed; Eastern Book Company: 34 Lalbagh, Lacknow-226001, India, 1992; 26.

The classical exposition of this paradox was described by John Stuart Mill in his essayOn Liberty in Utilitarianism Etc: (London, 1910) p 83

Waluchow, W.J. 1994. Free Expression: Essays in Law and Philosophy. Oxford: Oxford University Press.

Raz, J., 1986, The Morality of Freedom. Clarendon: Oxford University Press.