Limitations on freedom of expression are made comparatively explicit in the formal agreements on human rights -illustrate and explain.


Can we hold the opinions that differ from other people in a country?  Can we express and publish what we think actually? Can we protest to your government if we criticize of its policies? Can the government treat us differently than it treats other people? Every country is based on some kind of law. Some of those are arbitrary powers, however over the years the only rule that seems to dictate the terms is the rule of law. As a citizen, we must know our constitutional rights in order to assert them. One of the basic principles of the any constitution is the rule of law.[1]Actually sustainable development and good governance mostly depends on the proper application of rule of law. Laws are made for the welfare of the people, to bring a balance in society, a harmony between the conflicting forces in society. 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. 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.

Importance of Freedom of expression and speech:

The significance of free speech as a basic and valuable characteristic of western 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. One of the difficulties inherent in discussing freedom of speech is that it contains what libertarians often describe as the paradox of freedom. The classical exposition of this paradox was described by John Stuart Mill in his essay On Liberty in Utilitarianism Etc.: (London, 1910) p 83-“ there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it might be considered”

The Universal Declaration of Human Rights was adopted by the United Nations in 1948 and in its Preamble “it was proclaimed as a common standard of achievement for all peoples and all nations.” The Universal Declaration outlines 30 basic rights for all human beings to achieve their full potential and to live a life free of fear and want.[2]

A decision made after adequate consultation is likely to be a better one which less imperfectly mirrors the opinions, interests and needs of all concerned, than a decision taken with little or no consultation. Thus freedom of speech is important at all levels in society. Yet it is most important for government. 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. On the other hand, when freedom of speech is restricted, rumors, unfair criticisms, comments and downright falsehoods are circulated by word of mouth. There are those, among them notably Justice Douglas of the American Supreme Court, who have argued for near absolute freedom of speech and against the restrictions based on many of the common exceptions. In Roth v US 354 US 476 (1957) a case about obscenity,          Justice Douglas said in dissent: “The test of obscenity the Court endorses today gives the censor free range over a vast domain. To allow the State to step in and punish mere speech or publication that the Judge or jury thinks has an undesirable impact on thoughts but that is not shown to be part of unlawful action is drastically to curtail the First Amendment.”[3]

Finally, “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 and 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 citizen’s help 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”[4]

Limits to freedom of expression and speech:

Limitations on freedom of expression are made comparatively explicit in the formal agreements on human rights drawn up by governments.[5]

A- In general

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? The answer can be found in the European Parliament resolution on the right to freedom of expression and respect for religious beliefs:

The European Parliament, “Defends freedom of expression as a fundamental value of the EU; believes that freedom of expression must be exercised within the limits of the law and should coexist with personal responsibility and be based on respect for other’s rights and sensibilities; acknowledges that balancing these concerns necessitates ongoing debate in a democracy.”[6]

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”.[7] 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.[8] For instance, Article 29 of the Universal Declaration of Human Rights says that:

 “ (1) everyone has duties to the community in which alone the free and full development of his personality is possible.

   (2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

  (3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.”

Similarly, the Article 10(2) of the European Convention of Human Rights explains for what, how and why the exercise of freedoms, mentioned in Article 10 (1), may be subject to formalities, conditions, restrictions or penalties.

 It is stated that, the Article 10 attracts attention to the freedom of expression’s capability of being harmful for the interests of others or for the common good and in its judgments relating to Article 10, European Court of Human Rights has tried to balance the right of expression with the need to protect other rights.[9] 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.

 B- National security

All the treaties about human rights allow limitations on freedom of expression when national security is discussed.[10] 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[11]. National security has been a common subject of a general debate in the world after the terrorist attacks on 9 September 2001 in New York and on 7 July 2005 in London. These attacks have leaded the states to review their anti-terrorist laws and some restrictions on freedom of expression came into force as a result. Especially the press has been affected by these limitations and it is defined as a desire “to bury or silence controversial voices[12]

 In this context, Article 23 of the “Guidelines of the Committee of Ministers of the

Council of Europe on Protecting Freedom of Expression and Information in times of crisis[13]

will be a perfect reference for the media professionals;“23. Media professionals need to adhere, especially in times of crisis, to the highest professional and ethical standards, having regard to their special responsibility in crisis situations to make available to the public timely, factual, accurate and comprehensive information while being attentive to the rights of other people, their special sensitivities and their possible feeling of uncertainty and fear.”[14]

 C- Racial hate Speech

After the Second World War and the Holocaust, non-discrimination has taken a place as a fundamental principle in all main human rights treaties. It applies to everyone and bans discrimination on the basis sex, race, color and so on. The principle of non-discrimination is completed by “equality”, as mentioned in Article 1 of the Universal Declaration of Human Rights:All human beings are born free and equal in dignity and rights”[15]

.D- Religious intolerance and the incitement of hatred

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.[16] 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.[17] This is so because beliefs and the religious are integral parts of humanity. To emphasize its importance, in 1981 UN General Assembly adopted the “Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief” In its preamble the Declaration states that “religion or belief for anyone who professes either, is one of the fundamental elements in his conception of life and that freedom of religion or belief should be fully respected and guaranteed.”

Freedom of speech and expression in the constitution of Bangladesh:

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.

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.


ü      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.

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

ü      To enquire fully and independently into all allegations of attacks against human rights defenders and journalists, including when the alleged perpetrators are officials or nonstate actors.

ü      To establish the national human rights institution foreseen in the 1999 legislation

ü     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.


Finally we can say that Freedom of expression is restricted on politicized grounds on the basis of several pieces of stringent legislation. The public advertisement system and the control over the access to fair priced paper/newsprint for the media publications are both used to financially pressurize media considered to be close to the opposition. A common justification for the restrictions upon the liberty of individuals is the supposedly overriding interests of efficient government and the public benefit. It is conveniently overlooked that what constitutes “efficient government” and “public benefit” are subjective concepts, the interpretation of which will be in the hands of legislators, bureaucrats and judges with human failings and feelings, lack of vision, imperfect knowledge and understanding, subjective views and personal prejudices.


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

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

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

ü      Thakker, C.K. Basic Constitutional principles. Administrative Law, 1st ed; Eastern Book Company.

ü      Dicey, Albert V. (1885) 1961 Introduction to the Study of the freedom of speech. 10th ed. With an Introduction by E. C. S. Wade. London: Macmillan; New York: St. Martins. ? first published as Lectures Introductory to the Study of the Law of the Constitution.

ü      Austin, John (1832-1863)1954 The Province of Juris-prudence Determined and the Uses of the Study of Jurisprudence. London: Weidenfeld & Nicolson; New York: Noonday. ? Two books reprinted in one volume

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

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

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

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

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

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

ü      Marsh, The rule of law as a supranational concept, in Guest, 1961, p 240 and Marsh, 1959.

ü      Massey, I.P. Conceptual objections against the Growth of Administrative Law. Administrative Law, 5th Ed; Eastern Book Company: 34, Lalbagh.

ü      N Douglas, “Freedom of Expression Under the Australian Constitution” (1993) 16 UNSWL/ 315; T Campbell, “Democracy, Human Rights, and Positive Law” (1994) 16 Syd LR 195; A

ü      A V Dicey, Introduction to the Study of the Law of the Constitution (10th ed, 1959) at 72-74.

ü      G Lindell, “Why is Australia’s Constitution Binding? – The Reasons in 1900 and Now, and the Effect of Independence” (1986) 16 F L Rev 29 at 44.

ü      Wade, H.W.R. Some Constitutional Principles-The Rule of Law, Administrative Law, 3rd Ed; clarendon Press: Oxford, 1971; 6.

ü      Dicey, A.V. The Rule of Law: Its Nature and General Applications. Introduction To The Study Of The Law Of The Constitution, 8th Ed; Macmellan and Co. Limited: St. Martin’s Street,London, 1915; 202.

ü      Woodrow Wilson, Constitutional Government in the United States 69 (1908).

ü      David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb—A ConstitutionalHistory, 121 Harv. L. Rev. 941, 993 (2008) [hereinafter Barron & Lederman, Constitutional History].

ü      Missouri v. Holland, 252 U.S. 416, 433 (1920).

ü      Office of Legal Policy, U.S. Dep’t of Justice, Guidelines on Constitutional Litigation 3 (1988).

ü      Jean Bodin, On Sovereignty: Four Chapters from the Six Books of the Commonwealth, edited and Julian H. Franklin (Cambridge: Cambridge University Press, 1992) 1.

ü      William Blackstone, Commentaries on the Laws of England (Oxford: Clarendon Press, 1765) vol. I, ch.7, p. 234.

ü      Raz, Concept 27-43, H. L. A. Hart, The Concept of Law, second edition (Oxford: Oxford University Press, 1994) chs. 1-4.

ü      Haridakis, P. (2006). Article: Citizen Access and Government Secrecy. Saint Louis University Public Law Review, 25 St. Louis U. Pub. L. Rev. 3.

ü      Williams, G. (2006). National Security & The Law: Special Issue: Indefinite Detention and Extraordinary Rendition. Los Angeles Lawyer, 29 Los Angles Lawyer 44.

ü      Muhlke, A. The Right to Language and Linguistic Development: Deafness from a Human Rights Perspective, 40 Virginia Journal of International Law, Winter 2000, 705.


ü from theAttorney-GeneraltheHonRobertMcClelland

ü      Sellick, J. (2007). Constitutional and Administrative Law, London: Hodder Arnold, pp. 20

[1] 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.

[2] TakingITGlobal, ‘2008: Celebrating the 60th Anniversary of the Universal Declaration of Human Rights’ accessed 02 December 2008

[3] Adopted by the Committee of Ministers on 26 September 2007 at the 1005th meeting of the Ministers’


[4] Dr. M. Cooray, ‘The Importance of Freedom of Expression’ (An explanation of the importance of freedom of

expression and freedom of association and how they are being eroded in Australia in 1996.) accessed 04 December 2008

[5] T.R.S. Allan, ‘Common Law Constitutionalism and Freedom of Speech’ in J. Beatson and Y. Cripps, ‘Freedom

of Expression and Freedom of Information’, (Oxford University Press, Oxford 2000) 15

[6] European Parliament Resolution ,B6-0136,0138,0139 and 0141/2006, 16 February 2006

[7] Handyside v. United Kingdom, (App 5493/72) ECHR 7 December 1976

[8] Otto-Preminger-Institut v. Austria (App 13470/87) ECHR, 20 September 1994

[9] R. Clayton, H. Tomlinson, Privacy and Freedom of Expression (Oxford University Press, Oxford 2001) 166

12 L.

[10] S. Coliver ( International Center Against Censorship, Article 19’s Law Programme Director) , The Article 19

Freedom of Expression Manual (The Bath Press, Avon August 1993)

[11]Dr. A.Callamard, Executive Director, ARTICLE 19, “Key Note Speech, Osce Supplementary Meeting

Freedom of Media: Protection of Journalists and Access to Information”, 13-14 July 2006, 2, accessed on 27 December 2008

[12] accessed on 27 December 2008

n 7 above, at 3

[13] Adopted by the Committee of Ministers on 26 September 2007 at the 1005th meeting of the Ministers’


[14] E. Barendt, Freedom of Speech, ( 2nd. Ed., Oxford University Press, Oxford 2005) 65

[15] Dr. A. Callamard, Article 19 Executive Director, “ Expert Meeting on the Links Between Articles 19 and 20 of

the ICCPR: Freedom of Expression and Advocacy of Religious Hatred that Constitutes Incitement to

Discrimination, Hostility or Violence” UN HCHR, October 2-3 2008, Geneva, , accessed on 28

December 2008

[16] K. Boyle, “Religious Intolerance and the Incitement of Hatred” in S. Coliver, “ Striking a Balance: Hate Speech,

Freedom of Expression and Non-discrimination”, ( Article 19, International Center Against Censorship, Human Rights

Center, University of Essex 1992) 61

[17] Gunduz v Turkey (App 35071/97) ECHR 4 December 2003