Freedom of expression is a cornerstone of democratic rights and freedoms. In its very first session in 1946, before any human rights declarations or treaties had been adopted, the UN General Assembly adopted resolution 59(I) stating “Freedom of information is a fundamental human right and … the touchstone of all the freedoms to which the United Nations is consecrated.”Freedom of expression is essential in enabling democracy to work and public participation in decision-making. Citizens cannot exercise their right to vote effectively or take part in public decision-making if they do not have free access to information and ideas and are not able to express their views freely. Freedom of expression is thus not only important for individual dignity but also to participation, accountability and democracy. Violations of freedom of expression often go hand in hand with other violations, in particular the right to freedom of association and assembly.
Progress has been made in recent years in terms of securing respect for the right to freedom of expression. Efforts have been made to implement this right through specially constructed regional mechanisms. New opportunities are emerging for greater freedom of expression with the internet and worldwide satellite broadcasting. New threats are emerging too, for example with global media monopolies and pressures on independent media outlets.
Brief History of the Media Laws and Regulations
Prior to independence, Bangladeshi media history began under the authority of external governments. In 1931, the India Press (Emergency Power) Act was passed giving the local Government authority to forfeit the press. Another landmark measure took effect in 1965 under the Pakistani Government, the Defiance of Pakistan Ordinance, which restricted the freedom of the press altogether. The Daily Ittefaq and the New Nation Press were penalized for criticizing the Government. Just before independence in 1972, four daily newspapers and a periodical were found abandoned and their ownership was vested with the government.
In 1972, the constitution of the People’s Republic of Bangladesh was formally endorsed. In this new constitution, the right of every citizen of freedom of speech and expression, and freedom of the press was guaranteed. In 1973, The Printing Presses and Publication (Declaration and Registration) Act was introduced. In 2001, the Dramatic Performance Act of 1876 was repealed and the copyright ordinance of 1962 was revised and became law in 2000. On September 16th, the Information Minister said that future legislation will include an act titled ‘Television Network (Management and Control) Act 2002. The law may provide the commercial activities of Cable operators and distributors.
Most freedom of information laws exclude the private sector from their jurisdiction. Information held by the private sector cannot be accessed as a legal right. This limitation entails serious implications because the private sector is performing many functions which were previously the domain of the public sector. As a result, information that was previously public is now within the private sector, and the private contractors cannot be forced to disclose information.
Other countries are working towards introducing such laws, and many regions of countries with national legislation have local laws. For example, all states of the United States have laws governing access to public documents of state and local taxing entities, in addition to that country’s Freedom of Information Act which governs records management of documents in the possession of the federal government.
A related concept is open meetings legislation, which allows access to government meetings, not just to the records of them. In many countries, privacy or data protection laws may be part of the freedom of information legislation; the concepts are often closely tied together in political discourse.
A basic principle behind most freedom of information legislation is that the burden of proof falls on the body asked for information, not the person asking for it. The person making the request does not usually have to give an explanation for their actions, but if the information is not disclosed a valid reason has to be given.
Constitution:Freedom of expression and speech
Freedom of the press is a fundamental right of all citizens as guaranteed in the Constitution of the People’s Republic of Bangladesh. Article 39 of the Constitution is the most important Article for this study as it provides provision for press freedoms:
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.
While Article 39 addresses freedom of the press, Article 43 provides protection of privacy to the citizen. Every citizen shall have the right, subject to any reasonable restrictions imposed by law in the interests of the security of the State, public order, public morality or public health-
(a) to be secured in his home against entry, search and seizure; and
(b) to the privacy of his correspondence and other means of communication.
As interpreted, this provision limits the right of the press to invade private homes to obtain confidential information, interfere in a citizen’s secrets, or record private political discussions.
Part IXA of the Constitution deals with abnormal or emergency situations. If the President believes that a grave situation threatens the security or economic life of the country, be it war, external aggression or internal disturbances, he may proclaim an emergency. When an emergency is issued, the rights granted in articles 36-40 and 42 are suspended so that the State has no restrictions on its ability to make any new laws or take any executive actions. Article 141A speaks of issuance, period and revocation of the emergency; Article 141B discusses the suspension of fundamental rights and Article 141C deals with the suspension of enforcement of fundamental rights during emergency.
During emergency, the executives become all powerful. They can take any executive action regardless of fundamental rights since the operation of fundamental rights remain suspended during an emergency.
Besides the proclamation of emergency, other restrictions relating to the security of the state can be found in Article 39(2). It states the right of every citizen to freedom of speech and expression and freedom of the press, but renders such freedoms subject to the security of the state, friendly relations with foreign states, public order, decency or morality, contempt of court, defamation or incitement to an offence. The Penal Code, Special Powers Act and the Contempt of Courts Act prescribe the punishment for violations that offend these press limits.
Reference should also be drawn to Article 33, which empowers the Government to detain anyone, including journalists, in prison, without trial for six months initially.
This Article provides immunity to the Government against illegal confinement of a citizen. Under the Special Powers Act of 1974, the Government may detain any journalist for six months without trial in prison.
Article 78 also deserves reference because it describes the privileges and immunities of parliament and its members. For example, members of the press may enter parliament, but only with permission. The Speaker alone has the power to authorize the publication of papers, documents and reports placed or submitted in Parliament. No member of the press has a right to take any document out of Parliament without the permission of the Speaker. Contempt of Parliament is a punishable offence. In fact, members of the press are not allowed to attend any parliamentary committee meetings.
On October 21, 2008, the Caretaker Government of Bangladesh issued in the Bangladesh Gazette the Right to Information Ordinance (No. 50 of 2008), based loosely on the Indian Right to Information Act, 2005. The Ordinance was passed by the current government of Bangladesh in the first session of this parliament on March 29, 2009.
International legal instruments take the form of a treaty (also called agreement, convention, or protocol) that binds the contracting states to the negotiated terms. When negotiations are completed, the text of a treaty is established as authentic and definitive and is “signed” by the representatives of states. A state can agree to be bound to a treaty in various ways. The most common are ratification or accession. A new treaty is ratified by those states that have negotiated the instrument. A state that has not participated in the negotiations may, at a later stage, accede to the treaty. The treaty enters into force, or becomes valid, when a pre-determined number of states have ratified or acceded to the treaty.
When a state ratifies or accedes to a treaty, that state may make reservations to one or more articles of the treaty, unless reservations are prohibited by the treaty. Reservations may normally be withdrawn at any time. In some countries, international treaties take precedence over national law; in others a specific law may be required to give a ratified international treaty the force of a national law. Practically all states that have ratified or acceded to an international treaty must issue decrees, change existing laws, or introduce new legislation in order for the treaty to be fully effective on the national territory.
Countries that have ratified these international and regional treaties have agreed to meet their obligations under these conventions by implementing these provisions fully at the national level. This should mean in the first instance reviewing their laws relating to freedom of expression and adapting these to ensure they are in conformity or adopting new laws to meet these requirements.
Implementation of the right to freedom of expression remains problematic in many countries and governments in many cases are failing to fulfil their obligations. Problems and concerns with implementation in individual countries is well documented in reports of the Special Rapporteurs of the UN, OAS and OSCE as well as submissions to them by NGOs.
More than ever, the people of Bangladesh are exposed to a wide array of information and it is impacting all strata of life in all regions of the country. The freer flow of information has not only empowered women and the underprivileged; it has also generated enthusiasm among all segments of the populace to take part in development activities. However, the democratization
process resulting in greater access to information should not mask the fact that the state still plays a large role in manipulating the media. There are a number of obstacles standing in the way of effective media reforms such as the country’s large illiteracy rate, 48 percent for men and 71 percent for women. However, democratization and the gradual deregulation of the media is bound to have mixed effects, such as less government interference, and with it less media accountability.