The right to freedom of speech and expression is not totally liberal in a democratic country like Bangladesh. Justify.
1. Introduction
Freedom speech is considered as one of the fundamental rights of citizens according to Constitution of the People’s Republic of Bangladesh. The right to freedom of expression and speech endorses the right of every legal personality to express their opinions and views liberally. It is an essential element of society which should be prioritized to the maximum extent in order to ensure its role in democracy and political life. On the other hand, there are certain forms of speech and expression which must be restricted in order to protect human rights. In such cases, the right to freedom of speech and expression is limited by a fine balancing act. The right to freedom of speech is significantly perceived by individuals, legal entities, mass media, journalists, information service providers, telecommunication corporations etc. Considering the various aspect of such right, restriction may result in violation of fundamental rights.
1.1 Freedom of Speech and Expression History in Bangladesh
Before the independence of Bangladesh the right to exercise freedom of speech was regulated by the external government. The Indian Press act was passed providing the local government to impose necessary regulations in 1931[1]. Another significant declaration took place during the Pakistani Government in 1965, the Defiance of Pakistan Ordinance. The ordinance was issued to restrict the freedom of mass and print media specially. Moreover, The Daily Ittefaq and New Nation press were penalized for criticizing the Pakistani government. Just before the independence during the liberation war, four daily newspapers and periodicals were found and their ownership was consigned with the government in power.
The government formally authorized the right to freedom of speech right after the independence in 1972. 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 endorsed. In 2001, The Dramatic Performance Act of 1876 was repealed and the copyright ordinance of 1962 was revised and became law in 2000.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. Therefore, the regulation evolved rapidly regarding freedom of speech leaving space for restriction imposed since the independence of mass media in Bangladesh is still questionable.
2. Declarations
Constitution of People’s Republic of Bangladesh includes specific legislations in Article 39. This article upholds remarkable significance in terms of regulating the right to freedom of speech and expression. In the article 39 (1, 2) of chapter-3 of this constitution these have been stated:
39 (1) Freedom of thought and conscience is guaranteed. Freedom of thought and conscience, and of speech
39 (2) Subject to any reasonable restrictions imposed by law in the interests of 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 offense –
(a) the right of every citizen of freedom of speech and expression;
(b) freedom of the press, are guaranteed.
The article entails the implication of right to freedom of speech and expression subject to public and foreign interest. According to the article, restrictions can be imposed to ensure public security against any offensive or immoral actions by legislative authority.
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.
The Constitution not only holds the right to ensure freedom of speech but also protects public from moral hazards and interference in expression of opinions.
2.1 International Declaration
Considering freedom of speech and expression an inherent human right to voice opinions, it should be internationally accepted and regardless of any punishment or censorship. The United NationsUniversal Declaration of Human Rights, adopted in 1948, provides, in Article 19, that:
(19) Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.[2]
The International Covenant on Civil and Political Rights, also known by its shortening ICCPR, was activated in 1976. It expands the ideologies laid out in UDHR and is legally binding on all states who have signed and ratified its provisions. Article 19 of the ICCPR specifies that:
(1) Everyone shall have the right to hold opinions without interference.
(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
(3) The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.[3]
2.2 Implication of ICCPR
International Covenant on Civil and Political Rights elaborated the implication of International Law regarding freedom of speech and expression. Freedom not confined only in linguistic form but also printed or written form of expression. Once again, the article emphasizes on protection public health and morality. Therefore, nations are privileged to impose certain restrictions only subject to national security, respect and reputation of legal personalities. Therefore, freedom of speech and expression has been promoted globally by United Nations, though many countries impose restriction pressurized by political and legal environment.
3. Aspects of Freedom of Speech
According to the Constitution, Government can bring charges against any form of expression or speech that violates public, state or national security. Bangladesh being an Islamic country, any speech or expression detrimental towards the religious belief will be subject to judgment law. Apart from the previously mentioned written and verbal form, freedom of speech is also observed in different means of internet.
3.1 Legal Aspect
Any expression in such advanced media against the national security would also be treated according to the law. As a result of such imposed restrictions, there is profound possessiveness amongst the government in resolving the conflict between freedom of speech and defamation. Criticism of the political actions and figures are often handled strongly. Therefore, such actions have ranked Bangladesh amongst the countries with less or no freedom of speech and expression[4].
3.2 Moral and Media Aspect
Authorities restrict official access to journalists from certain publications. The government remained sensitive to international inspection; foreign publications are subject to censorship, while foreign journalists and press freedom promoters have encountered increasing difficulties in obtaining visas to enter Bangladesh and are put under observation while in the country. Information censorship laws are more restricted as the government has passed legislation. The legislation is declared to protect the “public interest” from any sort of information abuse.[5]
4. Actions against the Violation of Freedom of Speech
The People’s Republic of Bangladesh is not completely free in terms of exercising the freedom of speech and expression. Based on the Constitution there are reasonable restrictions found in Article 39:
(a) Against the interest of security of the State
(b) Against the friendly relation with foreign state
(c) Desecration of public order
(d) Desecration of civility or morality
(e) Anything disrespectful to the court
(f) Defamation or provocation to any offense
The restrictions tend have lower impact on public and social life except defamation. Defamation of the mass media and the journalists has always been in the limelight of legal system.
4.1 Defamation
The constituting law does not define defamation in a proper manner. In a general perception, defamation is simply harming one’s reputation or the theft of it. The legislation against defamation manner is not mentioned specifically in binding laws. Thus, there is the conflict between freedom of speech and defamation. According to Clerk and Lindsell –
When a person directly communicates to the mind of another, matter untrue, to disparage the reputation of a third person, he is on the face of it guilty of a legal wrong, namely defamation.[6]
Defamations can be in the form of words, signs or visual representations which can denounce the reputation of a person exposing him/her to contempt, ridicule or public hatred and this way can lower the prestige of the person in the society. In simple words, when a person does anything by spoken or written words causing substantial damage to the reputation of an legal person, entity, state or government, it is simply know as defamation.
4.2 Defamation in English Law
In English Law libel and slander are two principles that specifydefamation under any circumstances. A defamatory statement in writing, film, broadcasting, or other permanent form is libel. On the other hand orally or temporary defamatory statement is called slander. Libel in English is not only a civil wrong but also a criminal wrong.
4.3 Defamation in Bangladeshi Law
In case of Bangladesh there is no statutory law concerning defamation except the amendment in chapter 21 of the Penal Code.As a result, without any specific principles the violation of freedom of speech is often misunderstood and government end up taking actions against it.
4.4 Few Significant Scenarios
The case of journalist and writer Salah UddinShoaibChoudhury, who was arrested in 2003 and prohibited from attending a conference in Israel, charged with sedition, and spent 17 months in jail before being released on bail in 2005, remained open throughout 2006 as he awaited trial.
The Government asked ProthomAlo publishers to suspend the publication of the newspaper’s weekly satire supplement Alpin, as e result of violation against the religious sentiment through conflicting with freedom of speech.
Social networking website Facebook was suspended for a week on 29 May, 2010 due to violation of the right to freedom speech and expression against the government and national security. Therefore, government’s strict regulation prohibits every individual from defamation.
In case of Taslima Nasrin, an open minded journalist and writer, was banished from the country by the reigning government. The journalist was accused of expressing opinion against the religious sentiment and public security, and was forced to leave the country.
4.5 Journalism under threat
The freedom of press is required for the purpose of establishing smooth democracy in the society. The scenario is totally different in Bangladesh. Journalists are often harassed and violently attacked by a range of actors including organized crime groups, political parties and their faction, government authorities, and leftist and Islamist militant groups. Generally they are threatened because of their coverage of corruption, criminal activity, political violence, the rise of Islamic fundamentalism, or human rights abuses. Police brutality towards photographers in different protests and political events are also common form of actions against violations.
5. Recommendations
The constitution doesn’t specify the criteria upon which any action would be held against the freedom of speech. There must be specified instructions in terms of content-based, non-content based restrictions. Commercial speech, symbolic speech, compelled speech and internet restriction should also be clearly specified including relevant penalties.
5.1 Content-based Restrictions
According to Justice Holmes –
The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic…. The question in every case is whether the words used … create a clear and present danger.[7]
The content-based restriction simply refers to utterance of “fighting” words, those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.[8] The government should impose restrictions against the personal abuse tend to be made by utterance or expression.
5.2 Non-Content-Based Restrictions
Two types of speech restriction can be imposed under the Non-Content based restrictions. These are: (1) Time, place or manner restrictions and (2) Incidental restrictions. The restrictions are imposed to combat the crime directly occurring from the aggressive content of speech or expression, which is considered as secondary efforts. [9]
5.3 Commercial Speech Restrictions
Commercial speech is “speech that proposes a commercial transaction.[10] The books and films that are sold for profit are not a part of this commercial speech. Commercial speech, however, may be banned if it is false or misleading, or if it advertises an illegal product or service. Even if fits in none of these categories, the government should regulate it more than it may regulate fully protected speech.
Conclusion
The right to freedom of speech and expression is not totally liberal in a democratic country like Bangladesh. The government of People’s Republic of Bangladesh must protect and ensure maximum freedom of speech in order to smoothly operate the political system and successful democracy. Mass media should be given their preferred rights to express opinion and criticize the actions independently. Unnecessary harassment of journalists and media figures would not only misinterpret the inherent meaning of freedom of speech but also deprive the nation from free flow of information in such a global village. Therefore, imposed restrictions must be relaxed significantly stating the specified difference between freedom of speech and defamation. The right to freedom of speech expression is not confined in verbal, written or printed form; it is the right to be achieved, honored and most importantly spread to every legal personality.
References
Constitution of Bangladesh: Part II: Fundamental Principles of State Policy”. Chief Adviser’s Office. Prime Minister’s Office. Government of the People’s Republic of Bangladesh
bdnews24. (2010, October 4). HC rules Bangladesh secular . Retrieved October 11, 2011, from bdnews24.com: http://www.bdnews24.com/details.php?cid=2&id=175271&hb=4
Bangladesh, G. o. (n.d.). Index of Constitution. Retrieved October 2, 2011, from PMO.gov.bd: http://www.pmo.gov.bd/pmolib/constitution/
Timeline: a history of free speech” The Guardian. February 5, 2006.
MacQueen, Hector L; Charlotte Waelde and Graeme T Laurie (2007). Contemporary Intellectual Property: Law and Policy .Oxford University Press. pp. 34
13. John Milton (1608–1674). Areopagitica; A Speech of Mr. John Milton for the Liberty of Unlicenc’d Printing, to the Parlament of England. London: [s.n. 1644″]. Early Censorship in England, “Heresy and Error”: The Ecclesiastical Censorship of Books, 1400-1800. Bridwell Library. Exhibition September 20 – December 17, 2000. Retrieved 26 October 2011.
Sanders, Karen (2003). Ethics & Journalism. Sage. pp. 67
Office of the United Nations High Commissioner for Human Rights. “List of Declarations and Reservations to the International Covenant on Civil and Political Rights”
Banglapedia. (2006). Constitutional Amendments. Retrieved September 29, 2011, from Banglapedia.com: http://www.banglapedia.org/httpdocs/HT/C_0336.HTM
Sadurski, Wojciech (2001). Freedom of Speech and Its Limits. Law and Philosophy Library. 38. p. 179.
Conte, Alex (2010). Human Rights in the Prevention and Punishment of Terrorism. Springer. p. 643.
Crook, Tim (2010). Comparative Media Law and Ethics. p. 397.
Hensley, Thomas R. (2001). The Boundaries of Freedom of Expression & Order in American Democracy. Kent State University Press. p. 153.
Cohen, H. (2009). Freedom of Speech and Press: Exceptions to the First Amendment. Congressional Research Service, 3-12.
[1]Bangladesh Press Freedom, Freedom House
[2]General Assembly of the United Nations (1948-12-10).“Universal Declaration of Human Rights” (in English/French) (pdf). pp. 4–5. Retrieved 2007-05-06.
[3]“UN Treaty Collection: International Covenant on Civil and Political Rights”. UN. 2011-10-14. Retrieved 2011-09-04.
[4] Press Freedom Report. www.worldaudit.org. 2001-09-22. Retrieved 2011-10-04.
[5] The Daily Star Article. 2010-09-12. Retrieved 2011-10-04.
[6]Clerk&Lindsell on Torts, Supplement 1. Anthony M. Dugdale. Wildy Logo. 2010-10-22. Retrieved 2011-09-28.
[7] Schenck v. United States, 249 U.S. 47, 52 (1919).
[8] Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942). Campus “hate speech” prohibitions at public colleges (the First Amendment does not apply to private colleges) are apparently unconstitutional, even as applied to fighting words, if they cover only certain types of hate speech, such as speech based on racial hatred. This conclusion is based on the cross-burning case, R.A.V. v. City of St. Paul, infra note 138.
[9] For additional information on this subject, see CRS Report 95-804, Obscenity and Indecency: Constitutional Principles and Federal Statutes, by Henry Cohen.
[10] Board of Trustees of the State University of New York v. Fox, 492 U.S. 469, 482 (1989) (emphasis in original). In Nike, Inc. v. Kasky, 45 P.3d 243 (2002), cert. dismissed, 539 U.S. 654 (2003),