Law opinion
Contempt of court and press freedom: A balancing approach
The declaration by the High Court Division of the Supreme Court on 26 September 2013 certain provisions of the Contempt of Court Act 2013 'invalid and unconstitutional' generated legal controversy. These provisions exempt government officials and journalists from any contempt of court action. The Court said this exemption is discriminatory as it treats two particular groups more equal than others in violation of Article 27 of the Constitution guaranteeing equality before the law.
There is no statutory bar on the constructive criticism of judges and their judgments at the aftermath of the disposal of a case. The objective of contempt action is to protect the prestige, dignity, and authority of the court for which there is a body of case law. The Lahore HC held that judicial functions are open to public criticism. No court would treat reasonable arguments against any judicial act contrary to law or the public good as contempt: State v Abdul Latif (1961) PLD Lah 51. The Bangladesh SC held that a court is to suffer criticism and only in exceptional cases of bad faith or ill motive should it resort to contempt actions: Saleem Ullah v State (1992) 44 DLR AD 309. It recognised freedom of expression in Article 39 of the Constitution as a right to express one's own opinion freely by spoken words, writing, printing, painting, or in any other manner: Dewan Abdul Kader v Bangladesh (1994) 46 DLR 596. Judicial functions are open to public scrutiny in Australia. Lord Denning justified press freedom as a watcher of judicial functions: Denning, The Road to Justice, 1955, p 64.
Freedom to criticise judicial functions may be the best watchdog to ensure judicial accountability. But this freedom requires fairness, legal knowledge, and ethical standard in assessing judicial affairs. If the critics play a strictly responsible role in exposing judicial impropriety, it would be of much help for the judges to be more careful. The judiciary benefits from constructive criticisms to become a responsive and transparent judiciary. This positive nexus between the judiciary and its critics becomes counterproductive when criticisms are targeted to tarnish the image of the judiciary, which resorts to contempt actions to insulate itself from adverse criticisms.
Legislative exoneration of government officials from contempt charges is almost unprecedented in western democracies. Public servants should not be immune from contempt charge when their action amounts to interference in the administration of justice. They should be able to defend their action and explain its underlying rationale if they are called upon to do so in courts. If an identical comment about a judicial proceeding made by a government official and an ordinary citizen separately, the Contempt Act allows the latter to be charged for contempt but the former remains exempt. This means that the source of contempt is not the comment but the status of its author, which is legally untenable. Given so many irresponsible and pre-emptive public statements made by executive officials, including ministers and politicians, about international crimes trials, their exemption from contempt action is likely to make a bad situation worse. These instances give credence to the argument that an all-powerful executive enacted this exemption in Parliament as a self-serving bid to insulate their political interference with the judicial process. They must be made answerable when their role is questionable and contempt action is one of the palatable means to hold into account irresponsible comments by government officials.
Freedom of expression is a fundamental right under various national and international human rights instruments. The expression of this right in Article 18 of the Universal Declaration of Human Rights (UDHR) remains authoritative. When this right is exercised, its effects may impinge on other equally recognised human rights. UDHR Articles 29 and 30 impose restrictions on the exercise of its listed rights 'solely for the purpose of securing due recognition and respect for the rights and freedoms of others' and warn against the abuse of rights 'aimed at the destruction of any of the rights'. No right is absolute but accompanies its corresponding duty of respect for others' rights. If freedom of expression is unfettered and under no duty to tolerate others' interference, other' rights are also entitled to be immune from interference by the former. Since unfettered rights counteract each other, their ultimate enjoyment lies in reciprocal respect for each other's rights. It is this reciprocity that minimises abuses and maximises the realisation of rights. Freedom of expression, like any other rights, is not unfettered but contingent upon its associated duties.
The eloquent and persuasive language of freedom of expression seemingly comforts the oppressed and confronts the oppressor. But this freedom under the laissez-faire western liberalism can itself be oppressive when surpasses its limit and encroaches into other' right. Let me exemplify media excesses through two widely known past events, parallel of which are abound in Bangladesh but avoided due to their subjudice status. Prophet Mohammad's(P) cartoons in the Danish newspaper Jyllands-Posten on 30 September 2005 displayed 12 cartoons depicting Muhammad(P) as a terrorist, wearing a turban shaped as a bomb with a burning fuse. The cartoons were reprinted in newspapers in over fifty countries. US President Barack Obama's cover page cartoon of the New Yorker Magazine on 14 July 2008 showed Obama as a Muslim wearing a turban and shaking hand with his wife dressed in military gear with a gun hanging on her back. Behind Obama, there was a picture of Osama bin Laden on the wall and an American flag burning in an open fireplace. The cartoon was reproduced in many right wing websites in the US.
In both cases, the satirical intent of the cartoonists was justified in western liberal democracies as a legitimate exercise of freedom of expression. The Danish cartoons offended the religious feelings and traditions of the Islamic faith. Muhammad(P) is the prophet of Islam that includes some fundamentalist elements, whose views and acts are not necessarily shared by the overwhelming majority of Muslims. The depiction of Islam, its prophet and faithfuls in general as terrorists was very offensive to the vast majority of Muslims, which caused global unrest. The depiction of Obama as a Muslim and anti-American having link with terrorists and their leader Osama bin Laden was a blatant lie that conveyed a false message during the US Presidential election. It impacted on the individual dignity of Obama. Freedom of expression may well be wide enough to accommodate insults, mockery, degradation, and ridicule. But it cannot justify making fun of religious feelings indiscriminately at will and that individual dignity has a duty to tolerate false and misleading, yet insulting, depictions.
Freedom of expression on a matter of public interest must encourage, not destroy, public harmony. Press freedom of expression can sometimes be personally oppressive and humiliating. It can be a major intrusion on the right to live in peace and dignity. Resorting to absolutist arguments by giving priority to press freedom over other rights cannot resolve this conflict. Rather all legitimate freedoms should be reconciled through mutual respect. It is this mutual respect that is a limitation on press freedom. The media commitment to freedom of expression is not necessarily compromised if offensive languages, outrageous behaviours, hateful opinions, and humiliating depictions that would step over the threshold to impinge on others are censored. These acts are unacceptable in the society and law because of their wounding power to hurt deeply and inflict psychological torment to the targeted victims.
Self-regulation has hardly arrested media excesses. Absolute press freedom and exoneration from contempt action in a country like Bangladesh with so many polarised media-outlets ventilating self-perceived news and views is likely to consign fear and inculcate nightmarish concern particularly among the weak, powerless, voiceless, and deprived. The utility of a balanced regulatory and judicial oversight in keeping media freedom within their bounds may not be gainsaid. This is not to oppose tolerance that freedom of expression wants us to listen to things we dislike or views we disagree. It merely reinforces that press freedom must be balanced with its accompanied obligation. Media freedom must be protected not only against its deniers and suppressers, but also against those who cynically abuse it under immunity.
The judiciary appreciates the press publicity of its positive role in upholding the constitutional guarantees. It also needs to appreciate press criticism of judicial misconducts, if any. Continuous judicial obsession for contempt actions to avoid public criticisms may diminish public confidence in the judiciary. Similarly government officials and the press must exercise due care and self-restraint not to indulge in any undue act that may have potential to frustrate an ongoing pursuit of justice. Should they fail, contempt action is in order and indeed imperative to hold them accountable. It is important that none should be allowed to unduly interfere in the administration of justice with impunity.
The author is Professor of Law, Macquarie University, Sydney, Australia.
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