The most important aspect that differentiates democratic ruling of state from communism is the right to freedom of expression and speech-illustrate and explain.

Introduction

The most important aspect that differentiates democratic ruling of state from communism is the right to freedom of expression and speech. Thus freedom of speech and expression is essential for the development and functioning of democracy. Without freedom of speech there cannot be any democracy¹. The freedom thus consists of the right to express freely one’s conviction and opinion on any matter orally or by writing. This right gives individual’s the freedom to express his or her views or wishes, however offensive to others, in private or public; freedom of the press to express any view; freedom of authors to write and publish; and freedom of film makers to record and distribute films/ videos in private and public consumption².

Freedom of speech and expression is perhaps one of the most exploited right we have. Decreasing level of social modesty, privacy and health of individuals are rising phenomenon that are usually backed up by this right. As a result of this, the right is subjected to legal restrictions to protect the interest of national security or public safety, for prevention of disorder or crime, for the protection of health or morals and finally to protect the freedom and rights of others.

¹ I.Mahmudul, Constitutional Law of Bangladesh 1995, 2^nd edition, Mullick Brothers 2006, pg. 239

² B.Hilaire, Constitutional & Administrative Law 1995, 7^th edition, Routledge-Cavendish 2009, London, pg. 533

Historical Background on Fundamental Rights in the Constitution

Right after one year to the independence of Bangladesh, Sk. Mujibar Rahman the president of Bangladesh issued the Provisional Constitution of Bangladesh Order in 1972 providing for a parliament form of government. The Constitutional Assembly adopted a constitution that was based on democratic ruling of state, which came into operation on 16 December 1972. In comparison with other democratic county’s constitutional “The constitution of The People’s Republic of Bangladesh” was more or less the same. The Constitution specified a number of rights as fundamental rights and no law could be made which was inconsistent with these rights and no action could be taken by the government in derogation of such rights. However, certain laws were set apart which could not be challenged on the ground of violation of fundamental rights. In the fourth amendment which was passed in 1975 the inclusion of the power of High Court Division to enforce the fundamental rights [art.102(1)] was repealed and by an amendment of art.44 Parliament was empowered to establish by law a constitutional court for the enforcement of the fundamental rights.

Freedom of expression and Speech in Constitution

The right to freedom of expression and speech is a vital part in any democratic country’s constitution. Bangladesh being a democratic country, this right is ensured in the constitution known as “The Constitution of People’s Republic of Bangladesh”. In part III certain fundamental rights has been included amongst which the right of freedom of expression and speech is also mentioned in Article – 39 of the constitution. The article provides:

Article – 39. (1) Freedom of thought and conscience is guaranteed

(2) Subject to any reasonable restrictions imposed by law in the interest of the security of the state, friendly relations with foreign states, defamation or incitement to an offence –

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

(b) Freedom of press, are guaranteed

Freedom of thought and conscience is essential to the development of human personality and every person should be free in his thought and conscience¹. This right is given in absolute form and it is not possible to pass any law limiting this right on any ground whatsoever, according to Article – 39(1). Article – 39(2) guarantees the freedom of speech and expression but subjected to the limitation that restrictions on the excise of this right can be imposed by law under certain circumstances. According to Article – 39(2) freedom not only includes expression of one ideas through any visible or audible representations made to others, but also the right to acquire and import from others ideas, actions and information about matters on common interest and thus the right to read and be informed. For example, displaying of the national flag upside down with a peace symbol affixed as a protest against a government action or wearing of black armbands by students as a symbolic protest against war. It also emphasizes the freedom of press and other medias conveying important information to the people.

Enforcement of Fundamental Rights

This right has also been enforced in the constitution of Bangladesh under Article – 44 (Enforcement of fundamental rights), 26 (1) (Laws inconsistent with the fundamental rights to be void) and finally article – 102(1). Article 26 states that all laws that are inconsistent with the fundamental rights provided in part III shall become void on the commencement of the constitution and state shall not make any law inconsistent with those rights. Article 44(1) provides that the right to move the Supreme Court for the enforcement of any of the fundamental rights is itself a fundamental right.

Article 44(2) enables parliament to confer the jurisdiction to enforce fundamental rights on any other court, but such conferment cannot be in derogation of the Supreme Court under Article 102(1). The articles provide:

¹ I.Mahmudul, Constitutional Law of Bangladesh 1995, 2^nd edition, Mullick Brothers 2006, pg. 239

Article – 44. (1) The right to move the High Court Division in accordance with [clause (1)] of article 102, for the enforcement of the rights conferred by this Part is guaranteed.

(2) Without prejudice to the powers of the High Court Division under Article – 102 , Parliament may by law empower any other court, within the local limits of its jurisdiction, to exercise all or any of those powers.

Article – 26. (1) All existing law inconsistent with the provision of this part shall, to the extent of such inconsistency, become void on the commencement of this constitution.

Article – 102. (1) High Court Division has the power to issue orders and directions at the time of violation of fundamental rights.

Restriction on freedom of expression

In order to ensure the fair usage of the rights to freedom of speech and expression, the right is subjected to certain restrictions which may be imposed by law on specific grounds, according to Article 39(2). In order to ensure the safety and security of the state, health of public, and protect the interest of the masses this is extremely important. More over the Constitution of Bangladesh gives certain powers to the High Court Division to issue orders and directions to suspend fundamental rights at the time of emergency period, according to article141(c). Discussed below are some of the grounds under which freedom of speech and expression can be restricted:

i. Security of State: the security of the state is a matter of concern when there is a serious and aggravated form of public disorder as distinguished from ordinary breach of public order or public safety which does not involve any danger to the state. The security of the state is endangered by crimes of violence intended to overthrow the government¹, by waging war or rebellion against government, or by external aggression or war, but the security of the state is not endangered by minor breaches of public order or tranquility, such as unlawful assembly, riot, affray, rash driving and the like. However, violent crimes such as murder are an offence against public order and may endanger the security of state².

ii. Public order: in order to protect public order a reasonable restriction could be imposed by law. The expression `public order’ includes absence of all acts which are a danger to the security of the state and absence of insurrection, riot, turbulence or crimes of violence, but not acts which merely disturb the serenity of others³. Thus restrictions may be imposed to avert danger to property, human life and safety and public tranquility. For example, under art.31 an individual have the liberty to use a loud speaker in public speech, but interfering with the comfort, convenience and privacy of individuals, a law can restrict it.

iii. Friendly relations with foreign states: foreign relations are always a touchy matter and the state cannot be embarrassed by irresponsible statements inside the country touching sensitive issues of international affairs. Thus the objective of this restriction is the prevention of slander and libel against foreign states in interest of friendly relations with them.

iv. Decency or morality: a law can be imposed to restrict speechs or expression which tend to undermine public morality or decency. Obscenity is also restricted by law under art.39. obscenity means offensive to modesty, or decency; lewd, filthy, repulsive¹.thus a balance must be kept between freedom of speech and expression and public decency and morality, but when morality or decency is substantially transgressed, freedom of speech must be given away².

v. Contempt of court: in the exercise of his/her freedom of speech and expression, nobody can be allowed to interfere with the administration of justice³ or authority of the court even in the garb to criticizing judgments of the court⁴. Under art. 141(c) the constitution gives the right to the High Court Division to restrict fundamental rights at the time of emergency.

¹Santokh Singh v, Delhi Adminstration, AIR 1973 SC 1091

² Bihar v. Sailabala, AIR 1952 SC 329

³ Babulal Parate v. Maharashtra, AIR 1961 SC 884, 891

vi. Defamation: Defamation may be defined as the publication, whether oral or written, of a falsehood which damages the reputation of the person concerned and lowers the victim’s reputation. The freedom is available so long as it is not malicious or libelous and if the speech or expression is untrue and reckless, the speaker or the author does not get protection of the constitutional rights⁵.

vii. Incitement to an offence: this ground will permit legislation not only to punish or prevent incitement to commit serious offences like murder which lead to breach of public order, but also to commit any offence which according to the general Clauses Act made punishable by any law for the time being.

Inappropriate Implication of the Rights to Freedom of Speech and Expression in Bangladesh

The constitution of The People’s Republic of Bangladesh ensures many fundamental rights to the citizen of this country. Thus the rights ensure freedom of speech and expression of each and every citizen, allowing them to think and judge by themselves, put forward their opinion without any barrier or hesitation. However, in recent time this is not the case, implementation of this rights are still not done properly. The government is continuously trying to play game with the right of the citizens, ensure their sustainability. Thus many people are being deprive form this freedom. Discussed below are few of the recent incidents of using this right:

Article: Daily Star march 13 2009 – “Hizb ut-Tahrir men to be charged with sedition” According to this article 27 members of Hizb ut-Tahrir were arrested and charged as they were distributing leaflets regarding the BDR carnage in public which according to the police were provocable and were sensitive to international affairs. However, according to art. 39(2) the

1 Ranjit Singh v. Maharashtra, AIR 1960 SC 881

2 Ranjit Singh v. Maharashtra, AIR 1965 SC 881

3 Namboodripad v. Nambiar, AIR 1970 SC 2015; Saxena v. Chief Justice, AIR 1996 SC 2481

4 Daphtary v. Gupta, AIR 1971 SC 1132

5 Ibid; Saxena v. Chief Justice

constitution gives individuals the rights to express their opinions in the form of leaflets and pamphlets¹. Even though we agree with the governments’ point of view, there were lots of writing about this matter on papers and magazines but no actions were taken against them. We believe that under art.27 everybody should be equal before law.

Article: Just 3 to 4 months back home minister Ms. Sahera Khatun announced the implementation of mobile courts during strike to tackle riots and damages to public and private properties. In general this is indeed a good step taken by the home minister, but if you think deep and look at the implementations of this you will see that these mobile courts are mostly step up in strikes that set by the opposing party or strikes that are against the interest of the government, even if the strikes are done peacefully. Freedom includes the right of peaceful demonstrations and picketing².This is indeed a violation of the right freedom of speech and expression that our country’s constitution gives us.

¹ I.Mahmudul, Constitutional Law of Bangladesh 1995, 2^nd edition, Mullick Brothers 2006, pg. 242

² I.Mahmudul, Constitutional Law of Bangladesh 1995, 2^nd edition, Mullick Brothers 2006, pg. 241

Recommendations

The Constitution of The People’s Republic of Bangladesh ensures many of the right to freedom of speech and expression of citizens of this country. However, there are certain aspects that if followed would result in a greater benefit to the citizens. They are:

1. Better implementation of the rights: for the citizens to benefits from the rights ensured in the constitution the government has to take strong steps in implementing the rights so that the people of the country actually benefits from it. This involves improving the knowledge amongst the people assigned in the country’s defense and security (includes policemen, army men etc.).

2. More awareness amongst people about the rights given to them: a large segment of our citizens are not well educated, as a result they have little or no knowledge about the rights of freedom they have. Thus it is the duty of the country’s government to ensure that people are more aware of the rights offered to them in the constitution¹. This involves setting up more courts well dispersed and arranging public seminars throughout the country to talk about to advocate these rights.

3. Restrictions imposed by law on certain fundamental rights needs to be more precised: for example the situations were restrictions on freedom of speech and expression can be impose by law is very briefly stated in art.39 (2). Without detailed explanation the restriction imposed by law may result in differences in implementation that may vary from person to person , situation to situation and is may also affect more than one fundamental right. For example, abortion according to some may be a freedom of choice an individual has but to others it may be a detrimental to the morality of the society.

¹I.Mahmudul, Constitutional Law of Bangladesh 1995, 2^nd edition, Mullick Brothers 2006, pg. 90

4. Religious point of views should also be incorporated in putting guidelines to the right of freedom of speech and expression or any other fundamental rights: restricting the right to freedom of speech and expression on the basis of religious grounds is essential as many people tend to misuse it by blaspheming other religions or criticizing them. In past there were many cases of violence or riots as a result of this loop hole and in most of the cases the government played no role at all in stopping it.

Bibliography

B.Hilaire, Constitutional & Administrative Law 1995, 7^th edition, Routledge-Cavendish 2009, London

G. Kaye (2005, November). Freedom of speech and expression . . . most abused rights, Retrieved October 15, 2010, from http://www.renewamerica.com/columns/grogan/051129

Human Rights Act 1998, Retrieved October 15, 2010, from www.legislation.gov.uk/ukpga/1998/42/contents

I.Mahmudul, Constitutional Law of Bangladesh 1995, 2^nd edition, Mullick Brothers 2006, Dhaka

Justic K. Mustafa, Bangladesh Constitution: Trends and Issues 1994, Dhaka University Publications Bbureu, University of Dhaka, Dhaka

The Daily Star(2009, march). Hizb ut-Tahrir men to be charged with sedition , Retrieved October 15, 2010, from http://www.thedailystar.net/newDesign/news- details.php?nid=79536

The Constitution of the Peoples Republic of Bangladesh 2000