The members of free and independent press have reasons to surprise on the verdict of the High Court against Bangla daily Prothom Alo and Bhorer Kagoj in Bangladesh.

It is not because the dailies, which are by far the largest and most respected newspaper in the country and the dailies of reputes, but also to us the dailies were rightly informed the people, information about the judiciary in Bangladesh.

The High Court of Bangladesh on March 21, 2005 convicted editors, publishers and three reporters of two national dailies for contempt of court for publishing reports on the allegedly doctored LLB result of an additional judge of the High Court, Faisal Mahmud Fayezee. The High Court slaps fines, jail term on journalists for contempt and Newsmen barred from contacting judges directly. The court sentenced is as follows: the reporter of Bhorer Kagoj, Samaresh Baidya, to undergo rigorous imprisonment for two months and to pay a fine of Tk 2,000, and in default to suffer imprisonment for one more month.

Editor Matiur Rahman and publisher Mahfuz Anam of Prothom Alo and its two reporters, Ekramul Haque Bulbul and Masud Milad, and former editor Abed Khan and publisher Saber Hossain Chowdhury have been fined Tk 1,000 each, and if they do not pay the fine they will have to undergo imprisonment for one month. The court sentenced Samaresh to suffer rigorous imprisonment for publishing the photograph of Justice Fayezee along with the report.

The judgment, however, is a direct blow to the freedom of press and could seriously limit and harm free expression in Bangladesh. We have no doubt that against this decision the convicted journalists will appeal to the Appellate Division of the Supreme Court, and the International Press Freedom and human rights organizations will come forward to support the journalists with their whole efforts.

The 'Lectric Law Library's Legal Lexicon defined CONTEMPT OF COURT as –“Any willful disobedience to, or disregard of, a court order or any misconduct in the presence of a court; action that interferes with a judge's ability to administer justice or that insults the dignity of the court; punishable by fine or imprisonment or both. There are both civil and criminal contempts; the distinction is often unclear…A judge who feels someone is improperly challenging or ignoring the court's authority has the power to declare the defiant person (called the contemnor) in contempt of court.”

It is observed that there are two types of contempt - criminal and civil. Criminal contempt occurs when the contemnor actually interferes with the ability of the court to function properly - for example, by yelling at the judge and Civil contempt occurs when the contemnor willfully disobeys a court order. It is called indirect contempt because it occurs outside the judge's immediate realm and evidence must be presented to the judge to prove the contempt.

The limitation of the above contempt case verdict would be clear from the Daily Star editorial on March 23rd that writes, “What is more stunning is that through this judgment the court has taken upon itself to vouch for all actions of all judges not only during his or her judgeship but for all activities before he/she became a judge.

The judgment cites Lord Morris' judgement of 1899 (just 105 years ago, as if nothing has changed since then) about the need for contempt laws. He is quoted as saying that contempt laws regarding scandalising the court may be necessary in 'small countries consisting principally of coloured population.' It is regrettable that such racist language should find any place in our court's consideration even as a passing reference.

When the world is moving towards greater freedom, when transparency and accountability are becoming the key agents of good governance and when public's right to know is being increasingly recognised as a universal right, we get a judgment from no less a body then our High Court saying that the free and independent press the only channel through which people get to know anything in this country- must take second place to a yet undefined and unspecified notion of contempt of court.

And thus issues of national importance regarding the functioning and integrity of one of our key institutions which deserve public scrutiny and debate-will instead be hidden from view. It is sad judgment. It is sadder still that such a judgement comes when the notion of contempt of court is all but disappearing from the legal parlance all over the world. We seem to be getting back into the dark ages of legal views which subordinates the People's Right to Know to judiciary's notion that its must protect itself from public scrutiny.”

Freedom of Press and Contempt of Court is no doubt a delicate matter globally and nationally. Throughout the world freedom of press now respected and continue to maintain a balance with the judiciary in each of the nation states. Sheikh Hafizur Rahman Karzon writes in the Daily Star on June 15, 2003, on Conflicting coexistence of freedom of press and defamation, “Freedom of press, an offshoot of freedom of thought, conscience and speech, has become instrumental for establishing a democratic state where fairness, transparency and free expression constitute skeleton of that polity.

Every segment of the above right is very important as freedom of thought and conscience is essential for developing human personality, knowledge and civilisation. Freedom of speech and expression including freedom of press is the very foundation of democracy. Without ensuring free expression, criticism and open discussion democracy cannot function smoothly.

But this freedom, like other rights, is not unfettered as it has been given to the citizens subject to a number of conditions including the right of the persons to remain unassailed by the press reports. Freedom of press is important but right to reputation is also important, as it is the most dearly valued property and attribute of a citizen. So law has to accomplish the delicate task of maintaining a balance between two very important but conflicting rights.”

In this judgment, sadly, the judges failed to define the law to accomplish the delicate task of maintaining balance between the judiciary and free press. It is needless to say that our respect for the judiciary remains firm and unconditional and we will continue to fight for the independence of our judiciary and also support the idea of its complete separation from the executive but free and independent press is essential to achieve those goals and certainly our hope is that as there are scopes of reviewing the credibility of this judgment by the Appellate Division of the Supreme Court of Bangladesh and we could hope for the best.

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Writer: Delwar Jahid is the Executive Director of Manitoba Centre for Social and Peace Studies, Inc. and Research Fellow of St. Paul’s College, University of Manitoba, Canada. He is regularly contributing to the newspapers and web magazines. E-mail: samaj@mts.net/ delwarj@johnhoward.mb.ca

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