‘To what extent and how the right to freedom of expression and speech can be restricted .Discuss different aspects of this right entailed in the constitution ’

Introduction

The given topic denotes a firm relationship among the constitution, Freedom of speech and expression of the countries people. So, first a brief introduction regarding constitution and sovereignty will help to understand the contents of this research paper more easily.

In general constitution is basically a set of rules which provides a guide line for the members of any institution, organization or union. So, it basically defines the duties, power and rights of the organization. These defined rules and conditions will govern the internal aspect of the organization as well as outside aspects, such as how the organization will communicate with external outside parties. Therefore constitution looks upon on both the internal and external regulation of its related body.[1] A constitution is a nation’s highest law for many reasons. First of all, the constitution is more popular and straightforward than other laws. It provides basic power to official people and takes care of the basic rights of the citizens. On the other hand, most legislation implements policies. Second, constitution outsmarts other laws, because constitution wins whenever it collides with another state law. [2]

• Bangladesh Constitution (supremacy of people):

Supremacy of the Constitution.

(1) All powers in the Republic belong to the people, and their exercise on behalf of the people

shall be effected only under, and by the authority of, this Constitution.

(2) This Constitution is, as the solemn expression of the will of the people, the supreme law

of the Republic, and if any other law is inconsistent with this Constitution and other law

shall, to the extent of the inconsistency, be void.[3]

Freedom of speech

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.[4]

The right to freedom of expression is recognized as a human right under Article 19 of the Universal Declaration of Human Rights and recognized in international human rights law in the International Covenant on Civil and Political Rights (ICCPR).[5] Article 19 of the ICCPR states that “[e]veryone shall have the right to hold opinions without interference” and “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”. Article 19 goes on to say that the exercise of these rights carries “special duties and responsibilities” and may “therefore be subject to certain restrictions” when necessary “[f]or respect of the rights or reputation of others” or “[f]or the protection of national security or of public order (order public), or of public health or morals.[6]

International Background

In 1948 the United Nations General Assembly adopted the Universal Declaration of Human Rights (UDHR). Article 19 affirms the right to free speech:

Article 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.^([7])

Members of the Commonwealth Parliament reaffirmed the principles of the Declaration during a sitting on 10 December 1998 to mark the 50th anniversary of the UDHR and pledged to give wholehearted support to the principles enshrined in the Declaration.^([8])

Article 19 of the 1966 United Nations International Covenant on Civil and Political Rights (ICCPR) states that:

Everyone shall have the right to freedom of expression … [9]

Legal System of Bangladesh

The legal system of our country is based in part on English common law. Bangladesh seceded from Pakistan in December 1971. The British –era legislation applied in Pakistan after 1947 and post –partition legislation enacted in Pakistan continue to form the basis of Bangladeshi personal status laws , but legal developments since 1972 have been distinct.[10]

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.

 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.[11]

Situation of Bangladesh

 Freedom of Speech and Press

The Constitution provides for freedom of speech and of the press; however, the Government did not respect these rights in practice. Individuals cannot criticize the Government publicly without fear of reprisal. The Government attempted to impede criticism by prohibiting or dispersing political gatherings. As in past years, journalists pressed for repeal of the Official Secrets Act of 1923. According to the Act, a citizen must prove why he or she needs information before the Government will provide it. [12]The Act protected corrupt government officials from public scrutiny and hindered transparency and accountability of the Government at all levels. The hundreds of daily and weekly publications provided a forum for a wide range of views. [13]While some publications supported the overall policies of the Government, most newspapers reported critically on government policies and activities. In addition to an official government-owned wire service, there was one private wire service affiliated with overseas ownership.[14]

 Safety and Impunity

Sixteen journalists have been killed in Bangladesh since 1998, making the country one of the most dangerous for journalists (the individual names are listed below). Some were killed for investigating or exposing illegal activities, while others died at the hands of the security apparatus, in particular the infamous Rapid Action Battalion (RAB).[15]

 Limitations

Some reasonable restrictions found in these articles are as follows-

(a) Against the interest of security of the State
(b) Against the friendly relation with foreign state
(c) Violation of public order
(d) Violation of decency or morality
(e) Anything related to contempt of court
(f) Defamation or incitement to any offense[16]

 For specific country examples see Freedom of speech by country, and Criminal speech.

According to the Freedom Forum Organization, legal systems, and society at large, recognize limits on the freedom of speech, particularly when freedom of speech conflicts with other values or rights.^[39] Limitations to freedom of speech may follow the “harm principle” or the “offense principle”, for example in the case of pornography or hate speech. Limitations to freedom of speech may occur through legal sanction or social disapprobation, or both.

Members of Westboro Baptist Church have been specifically banned from entering Canada for hate speech.

In “On Liberty” (1859) John Stuart Mill argued that “…there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered.”^[40] Mill argues that the fullest liberty of expression is required to push arguments to their logical limits, rather than the limits of social embarrassment. However, Mill also introduced what is known as the harm principle, in placing the following limitation on free expression: “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”

In 1985 Joel Feinberg introduced what is known as the “offence principle”, arguing that Mill’s harm principle does not provide sufficient protection against the wrongful behaviors of others. Feinberg wrote “It is always a good reason in support of a proposed criminal prohibition that it would probably be an effective way of preventing serious offense (as opposed to injury or harm) to persons other than the actor, and that it is probably a necessary means to that end.”^[42] Hence Feinberg argues that the harm principle sets the bar too high and that some forms of expression can be legitimately prohibited by law because they are very offensive. But, as offending someone is less serious than harming someone, the penalties imposed should be higher for causing harm.^[42] In contrast Mill does not support legal penalties unless they are based on the harm principle.^[40] Because the degree to which people may take offense varies, or may be the result of unjustified prejudice, Feinberg suggests that a number of factors need to be taken into account when applying the offense principle, including: the extent, duration and social value of the speech, the ease with which it can be avoided, the motives of the speaker, the number of people offended, the intensity of the offense, and the general interest of the community at large.[17]Conclusions:

 A number of laws need to be amended to reflect international standards on the protection of freedom of expression. The government will need to review these laws, implement the

Freedom of Information act, as envisaged by the administration, as well as the Broadcasting Act. It is also important that the government develops a mechanism to ensure consultation with the media and the public on draft laws.[18]

 References

1. 1.      Government of the People’s Republic of Bangladesh, The Constitution of the People’s Republic of
2. Bangladesh, Dhaka,1972.
3. 3.      Anti-Slavery Society, The Chittagong Hill Tracts : Militarization, Oppression and the Hill Tribes,
4. London, 1984.
5. Huq, M. M. “Government Institutions & Underdevelopment : A study of the Tribal Peoples of the
6. Chittagong Hill Tracts Bangladesh” Institute of Local Government Studies, University of
7. Birmingham, December 1982.
8. The Law Commission, “Working Paper On the Proposed Right to Information Act, 2002”, Dhaka,
9. January 2002.
10. Kamal, Justice Mustafa, Bangladesh Constitution : Trends & Issues, University of Dhaka, Dhaka,
11. 1994.
12. Anisuzzaman, M. Bangladesh Public Administration and Society, Bangladesh Books International
13. Limited, Dhaka, 1979.
14. Ahmed, Syed Giasuddin, Public Personnel Administration in Bangladesh, University of Dhaka,
15. Dhaka, 1986.
16. 16.  Arafeen, A. S. M. Shamsul, Bangladesher Nirbachon 1970 – 2001 (Elections in Bangladesh :
17. from 1970 – 2001), Bangladesh Research and Publications, Dhaka, 2003.
18. The Daily Prothom Alo, 13.09.2009
19. The Daily Jaijaidin, 04.10.2009
20. Hizb ut-Tahrir Bangladesh: a political organisation
21. Section 54 allows police to arrest persons without a warrant
22. More about this incident is detailed later in this report
23. The Daily Amar Desh. 12.04. 2009
24. The Daily Amar Desh is a Bangla language newspaper
25. Municipality
26. Jubo League: The youth wing of the Awami League
27. A Bangla language newspaper
28. A Bangla language newspaper
29. Jubo League: The youth wing of the Awami League web http://www.internews.org/regions/mena/amr/bangladesh.pdf
30. Constitution of Bangladesh web  http://www.internews.org/regions/mena/amr/bangladesh.pdf
31. Web  http://www.aph.gov.au/library/pubs/rn/2001-02/02rn42.htm
32. http://www.ncbuy.com/reference/country/humanrights.html?code=bg&sec=intro

International Background

IBangladesh Human Rights Report (online available):