Freedom of press and legal restrictions in Bangladesh

Preface

Freedom of press is an indispensable element of democracy. Freedom of the press or freedom of the media means the freedom of communication and expression through mediums including various electronic media and published materials. The role of media and its impact on Bangladesh became more important since the restoration of democracy after 90s.

But the way of the journey of the press is not always smooth. It is always expected that the media will get supportive environment to work for society and culture. But unfortunately most of the cases Bangladeshi media don’t get supportive environment.

In Bangladesh media are facing so many problems. One of the major problems is legal restrictions. There are too many laws regarding media that restrict the freedom of press.

Freedom of press and legal restrictions in Bangladesh:

Press is the mirror of society. Media provide us information about our surroundings. If the media are restricted by law, we will not be able to build a prosperous and corruption free country. Freedom of press and freedom of speech is essential for a democratic country. By observing media we can easily understand the political situation of a state. In a liberal democratic country press enjoy full freedom, on the other hand in an authoritarian or totalitarian regime press enjoy less freedom.

In Bangladesh the freedom of press and freedom of speech is a fundamental right to every citizen. But in past government had made different laws to hinder the freedom of press. Hindering freedom of press very common in third world country and authoritarian regime. Most of the governments in third world are not very adept and in many cases they are corrupted. For this they make different laws obstructing the freedom of press as media can’t publish the news of inefficiency and corruption of government and bureaucracy.

Freedom of the press is the right to circulate opinions in print without censorship by the government. Article 39 of Bangladesh constitution ensures the freedom of speech and freedom of press.

According to HG.org legal resources ‘Media Law is a legal field that relates to legal regulation of the telecommunications industry, information technology, broadcasting, advertising, the entertainment industry, censorship, and internet and online services among others.

The freedom of speech and press is a fundamental right to every citizen of Bangladesh. The fundamental right being guaranteed by the fundamental law (constitution) of the state with some restrictions.

Article 39 of Bangladesh constitution says,

(1) Freedom of thought and conscience is guaranteed.

(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 offence

(a) the right of every citizen to freedom of speech and expression; and
(b) freedom of the press, are guaranteed.
(a) approaches, inspects, passes over or is in the vicinity of, or enters, any prohibited place; or
(b) makes any sketch, plan, model, or note which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy; or
(c) obtains, collects, records or publishes or communicates to any other person any secret official code or pass word, or any sketch, plan, model, article or note or other document or information which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy;
(2) On a prosecution for an offence punishable under this section with imprisonment for a term which may extend to fourteen years, it shall not be necessary to show that the accused person was guilty of any particular act tending to show a purpose prejudicial to the safety or interests of the State, and, notwithstanding that no such act is proved against him, he may be convicted if, from the circumstances of the case or his conduct or his known character as proved, it appears that his purpose was a purpose prejudicial to the safety or interests of the State; and if any sketch, plan, model, article, note, document, or information relating to or used in any prohibited place, or relating to anything in such a place, or any secret official code or pass word is made, obtained, collected, recorded, published or communicated by any person other than a person acting under lawful authority, and from the circumstances of the case or his conduct or his known character as proved it appears that his purpose was a purpose prejudicial to the safety or interests of the State, such sketch, plan, model, article, note, document or information shall be presumed to have been made, obtained, collected, recorded, published or communicated for a purpose prejudicial to the safety or interests of the State. 
(3) A person guilty of an offence under this section shall be punishable,-
(a) where the offence committed is intended or calculated to be, directly or indirectly, in the interest or for the benefit of a foreign power, or is in relation to any work of defense, arsenal, naval, military or air-force establishment or station, mine, minefield, factory, dockyard, camp, ship or aircraft or otherwise in relation to the naval, military or air force affairs of Bangladesh or in relation to any secret official code, with death, or with imprisonment for a term which may extend to fourteen years; and 
(b) in any other case, with imprisonment for a term which may extend to three years.

This article of constitution is not very clear. It’s a kind of oxymoron. Firstly the article gives total Freedom of thought and conscience but in the second phase of the article imposes some restrictions.

But the most important matter is the restrictions are not clear at all. The article gives no definitions of security of the State, public order, decency or morality, defamation or incitement. Government should have clarify the operational definition of the concepts.

Suppose a newspaper publishes something about foreign policy of the state, if govt. wish they can ban the newspaper by claiming that the very news hurting relations with foreign states.

Actually the constitutional article 39 restricts the freedom of press indirectly though it proclaims the freedom of press and freedom of conscious.

Penal code (1860)

According to Section 171(G) of penal code Whoever with intent to affect the result of an election makes or publishes any statement purporting to be a statement of fact which is false and which he either knows or believes to be or does not believe to be true, in relation to the personal character or conduct of any candidate shall be punished with fine.

I think this section of penal code is appropriate. It doesn’t restrict the freedom of press, in fact it helps to stop the misuse of media as a propaganda tool.

Section 292 & 293 of penal code Prescribe punishment for obscenity and immoral acts. According to this sections selling, haring, publishing, circulating or exhibiting any obscenities and immoral acts are punishable crime.

But the boundary of obscenity is not clear in this law. What is obscenity to me, may be that is decent to others. That’s why the definition of obscenity should have been included in this section.

As the boundary of obscenity isn’t identified so it possible to use this section against press to abridge the freedom.

Section 499, 500, 501 & 502 of penal code Deal with offences of defamation and libel. This sections are very obstructive for freedom of press. The definition of defamation isn’t clear in the section 499. Sometimes authority uses this section against press to protect corrupted politician or bureaucrats. As an example we can mention current ‘The Daily Star’ and ‘Mafuz Anam’ issue. Ruling party and their supporters harassing the editor in the name of defamation. Well, if he made defamation it’s justified to suit case against him. But is it justified suit hundred cases against one person for a single issue?

Actually by using this sections sometimes government restrict the freedom of press and freedom of expression.

Code of criminal procedure (1898)

Section 99(A) Code of criminal procedure Details the procedures of forfeiture of seditious books, pamphlets, newspaper or any printed documents or any matter which is defamatory of the President of Bangladesh, the Prime Minister of the Government, the Speaker of Parliament or the Chief Justice of Bangladesh or any matter which is grossly in-docent or is scurrilous or obscene.

This section covers a huge area. It creates hindrance to newspaper publishing news regarding any misdoing of prime minister or speaker or chief justice. If prime minister does anything wrong it is hard to publish anything about it according to this section.

This law was passed in British regime to suppress people but after liberation Bangladesh govt. did not repeal this law.

Actually this law has become a tool for controlling media. Govt. should repeal or amend this section to ensure the freedom of press.

The post office act (1869)

Section 27B the post office act empowers any authorized officer of the post office to detail any postal article which s/he suspects to contain seditious matter. This section abridges the personal privacy.

This law was passed in 1869 under British regime to control anti-government movement. Unfortunately after independence Bangladesh govt. didn’t repeal this law.

The dramatic performance act (1876)

This law was passed to empower govt. to prohibit public dramatic performances which are scandalous, defamatory, seditious or obscene. The act was aimed at prohibiting any performance or drama which was anti East-India Company or the corrupt officers and the indigo planters.

This law was passed in British regime to control general people especially the cultural activists. Although the British rule ended in 1947, this act has been kept alive in Bangladesh till today.

Sometimes this act creates problems for media in publishing different content. This act should repeal or amend to ensure the freedom of press.

The foreign relations act (1932)

This act prohibits the publication of statements likely to prejudice the maintenance of friendly relations between the Government of Bangladesh and the Government of certain foreign States.

If govt. makes any contract with certain nation that doesn’t serve our national interest, it will very hard for media to stand against it due to this law. Actually it is not a media friendly law.

This law was passed under British regime to control anti-government movement. Although the British rule ended in 1947, this act has been kept alive in Bangladesh till today.

Official secret act (1923)

 According to Section (3) of official secret act:

(1) If any person for any purpose prejudicial to the safety or interests of the State-

He shall be guilty of an offence under this section.

The boundary of national security, safety or interests isn’t obvious. It’s very tough for any journalist to investigate any corruption in govt. sector due to this very section. If media man tries to collect secret information from any govt. office for an investigating report it is very easy to suit a case against him/her with this section if govt. has ill intention.  So goes without saying that this law restricts the freedom of press. Also this law is contradictory with RTI (Right to information) Act 2009 which says people have right to have any information and concerned govt. officer has to give information if any person wants it. 

Contempt of court (1926)

According to this law any writing published calculated to bring a court or a judge of the court into contempt or to lower his authority is contempt of court. Further any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the court is contempt of court.

Under this law any comment on verdict or judge is contempt of law and it is punishable. This law has made judges absolute authority. This may lead Judiciary to malpractice. If any judge makes something wrong there is on one who can make him correct. This law made it difficult for journalists to analyze any verdict of court.

The children act (1974) Prohibits publication of reports in any newspaper magazine or newssheet disclosing any particulars of any case or proceeding in any court in which leads directly or indirectly the identification of such child. Even the publication of picture of the child is prohibited by the act. Section 2 of this law defines ‘child’ as one who is under the age of 16 years.

This is very important law. This law protects the fundamental right of a child. It doesn’t restrict the freedom of press rather helps to control malpractice of journalism popularly termed as “yellow journalism”.

Right to information act (2009)

The Right to Information Act has improved government transparency and accountability. It applies to all information held by public bodies, simplifies the fees required to access information, overrides existing secrecy legislation, and grants greater independence to the Information Commission, tasked with overseeing and promoting the law.

This law has made it very easy for journalists to get information. RTI ensures that every person has the right to information and concerned officer is bound to give information under this law.

Though RTI ensures that people get information, it excluded some govt. organizations and agencies. Excluded organizations and agencies are NSI, DGFI, SB (Bangladesh police), CID (Bangladesh police), Defence intelligence units, SSF, Intelligence cell of NBR and Intelligence cell of RAB. Under this law those organizations are not bound to provide any information.

It is logical to exclude some organizations for national security but exclusion of RAB (rapid action battalion) has created confusion in general people. Because RAB has bad records and different socio-political organizations blame RAB for extra judicial killing. Exclusion of RAB from this law has reduced the trustworthiness of the law.

If any concerned officer breach this law, RTI provides punishment for it but the punishment isn’t acute enough. The punishment for breaching the law should be tighten.

RTI creates some space for media. It made it easier for journalists to get information and making news story. But exclusion of different organizations especially RAB from this law has created some difficulties for journalists.  So it will not be exaggeration to say that RTI ensures information and freedom of press but not entirely.

RTI gives some room for media and has improved government transparency and accountability. But not enough for total free media. Punishment for breaching the law should be tightened and implementation of law must be ensured.

ICT act (2006)

Section 57 of the Information and Communication Technology (ICT) Act-2006 goes against people's right to freedom of expression and free speech.

section 57 (1) says: “If any person deliberately publishes or transmits or causes to be published or transmitted in the website or in any other electronic form any material which is false and obscene and if anyone sees, hears or reads it having regard to all relevant circumstances, its effect is such as to influence the reader to become dishonest or corrupt, or causes to deteriorate or creates possibility to deteriorate law and order, prejudice the image of the state or person or causes to hurt or may hurt religious belief or instigate against any person or organization, then this activity will be regarded as an offence.”

In the original ICT Act-2006, the maximum punishment was 10 years’ jail term and a fine of Tk 1 crore. Govt. amended the law in 2013. According to amended law offender will be punished for maximum 14 years and minimum 7 years imprisonment. It also suggested that the crime is non-bail able.

Section 57 is so vague that law enforcers can interpret it as they will to arrest anyone anytime. The act is contradictory with the constitution because section 57 robs us of our right to freedom of speech. The section had been widely misused by police to arrest innocent persons for posting critical comments about social and political issues and political leaders on social networking sites.

It also violates the rights enshrined in article 39 of our constitution. Article 39 ensures “the right of every citizen to freedom of speech and expression”. It also guarantees freedom of the press. But section 57 restricts the freedom of press.

In conclusion I’ll say the laws in Bangladesh regarding media is so vague and most of cases it restricts the freedom of press though sometime give some space for press. Freedom of press has been described as an indispensable element of democracy. If the media are restricted by law, democracy can’t flourish. For healthy democracy press freedom is must.

Though verbally constitution of Bangladesh and other laws ensure the freedom of press and speech, restrict the freedom with many hidden conditions and vague definition of terms.

To ensure total free press the hindrance and vague terms of law must be repealed. If we can eradicate the restrictions that minimize the freedom of press, we will have good democracy as well as a transparent government and prosperous BANGLADESH.