Freedom of speech and expression is also restricted on politicized grounds on the basis of several pieces of stringent legislation-illustrate and explain.
God created human and give them a special power and that is power of intelligence. Which letter lead them towards a man made revolution and that is speech and that letter became a power. These Principles set out an appropriate balance between the human right to freedom of expression, 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. These Principles are based on international law and standards, evolving state practice and the general principles of law recognized by the community of nations. They are the product of a long process of study, analysis and consultation overseen by ARTICLE 19, including a number of national and international seminars and workshops. The scope of these Principles is limited to the question of striking an appropriate balance between freedom of expression and injury to reputation. By reputation is meant the esteem in which an individual is generally held within a particular community. These Principles should neither be taken as foreclosing nor as approving restrictions designed to protect other interests – including in such areas as privacy, self-esteem or hate speech – which deserve separate treatment. All though freedom of speech is the basic right of human being but to some extent it should be restricted.
What is freedom of speech and expression?
One of the prime objects of making constitution is to maintain law and order in society, a peaceful environment for the progress of the people. Freedom of speech is the freedom to speak freely without censorship. Freedom of speech means the right to express the thought and view of an individual without any governing intervention. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used. In practice, the right to freedom of speech is not absolute in any country and the right is commonly subject to limitations, such as on libel, slander, obscenity, incitement to commit a crime, etc.
Significance of freedom of speech and expression
The significance of freedom of speech as a fundamental and precious characteristic of present society cannot be underestimated. As well as emphasizing the value of free speech, it is proposed to make an evaluation of some of the traditional restrictions on what may be freely said or published, such as the defamation laws, contempt of court, national security and so on. The approach is one which makes the case for free speech, since the world is now a place where people’s unfettered freedoms are by and large in retreat. The main difficulty inherent in discussing freedom of speech is that it contains what libertarians often describe as the paradox of freedom. In practical life, freedom of speech serves many functions. One of its most important functions is that decision-making at all levels is preceded by discussion and consideration of a representative range of views.
Government also needs freedom of speech 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.
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.
Importance of Freedom of speech and expressions in the context of Constitution of Bangladesh
To define freedom of speech and expression in the context of Bangladesh there are some laws included in the constitution. In article 39 of the Constitution provide the most important Article for the study as it contain 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.
In this article it is clearly states that freedom of thought and conscience is unlimited, but other freedoms like 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.
· Margin of appreciation: According to the Court, interference will be justified if the interference is prescribed by law; if there is a legitimate aim; and if it is necessary in a democratic society. Generally the Court deals with the question of being necessary. Necessity has been connected to proportionality which has a number of elements: whether the measure is suitable to acquire the stated aim and is there any less intrusive effective measure to reach it. 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.
· State security: Under the section 97of the Constitution reasonable restrictions can be imposed on freedom of speech and expression in the interest of security of State. 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. Thus speeches or expression on the part of an individual, which incite to or encourage the commission of violent crimes, such as, murder are matters, which would undermine the security of State.
· Contempt of court: Restriction on the freedom of speech and expression can be imposed if it exceeds the reasonable and fair limit and amounts to contempt of court. According to the Section 2 ‘Contempt of court’ may be either ‘civil contempt’ or ‘criminal contempt.’
· Public order: This ground was added by the Constitution (First Amendment) Act. Anything that disturbs public tranquility or public peace disturbs public order. Thus communal disturbances and strikes promoted with the sole object of accusing unrest among workmen are offences against public order. Thus a law punishing utterances made with the deliberate intention to hurt the religious feelings of any class of persons is valid because it imposes a restriction on the right of free speech in the interest of public order since such speech or writing has the tendency to create public disorder even if in some case those activities may not actually lead to a breach of peace. But there must be reasonable and proper nexus or relationship between the restrictions and the achievements of public order.
· Defamation: 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.
· Restrictions on the freedom of press: Unlike the 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.
· Sedition: As understood by English law, sedition embraces all those practices whether by words, or writing which are calculated to disturb the tranquility of the State and lead ignorant person to subvert the government.
· Decency or morality: The words ‘morality or decency’ are words of wide meaning. Sections 18 of the Bangladesh Constitution impose restrictions on the freedom of speech and expression in the interest of decency or morality. These sections prohibit the sale or distribution or exhibition of obscene words, etc. in public places. No fix standard is laid down till now as to what is moral and indecent. The standard of morality varies from time to time and from place to place.
· Religious intolerance and the provocation of abhorrence: In 2005, a Danish newspaper published some cartoons; inclosing one depicting the prophet Mohammed and it caused protests of Muslims in all over the world. It was not the first and not will be the last. The examples of religious insult, discrimination and intolerance have been seen since the beginning of human existence. Hence, struggle against intolerance and discrimination to others because of their religious or beliefs has been a common issue of the international human rights actions. This is so because beliefs and the religious are integral parts of humanity.
· 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.
· To screen its domestic legislation in order to bring it in conformity with the international human rights instruments binding on Bangladesh, in particular with regards to the provisions that are used to restrict freedoms of expression and association.
· To put an end to any act of violence and any kind of harassment, including legal persecution, against journalists and human rights defenders.
· To enquire fully and independently into all allegations of attacks against human rights defenders and journalists, including when the alleged perpetrators are officials or non state actors.
· To establish the national human rights institution foreseen in the 1999 legislation
· To address the violations of freedom of expression and association in general, and the situation of human rights defenders and journalists in particular, at all bilateral and multilateral meetings with the authorities of Bangladesh.
In conclusion I can clearly state that freedom of speech and expression is a very important basic right of being human. Freedom of speech and expression is also restricted on politicized grounds on the basis of several pieces of stringent legislation. However, as mentioned before because of its potential of being harmful for the interests of others or for the public benefit. 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. But when public benefit is an important factor, the test for allowing further restrictions upon free speech should strive to be somewhat more stringent because all the law and regulation are created for the betterment of the society.
BCDJC (Bangladesh Centre For Development, Journalism and Communication) (2003); Madhyam (Bangladesh Media Directory); BCDJC; Dhaka
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