Absence of a right of appeal in the ICT Act in a case where a person may be put behind bars for up to a year is definitely a step backwards when one considers the global trend in relation to contempt of court.
In the light of a series of contempt proceedings drawn by the International Crimes Tribunal of Bangladesh, the debate on the law of contempt of court has taken centre stage once again. In a recent program organised by the Supreme Court of Bangladesh and UNDP, the honourable chief justice of Bangladesh, Justice Surendra Kumar Sinha, very succinctly summarised the law in this regard, inviting and encouraging fair criticism of judgments and the judiciary, but strongly discouraging irresponsible criticism.
While the importance of the law on contempt is undeniable in maintaining public confidence in the justice delivery system as a whole, it has the potential of unreasonably restricting freedom of speech and expression, a right that is the hallmark of any functioning democracy, and in our case, guaranteed as a fundamental right by the constitution.
The modern trend in democracies is increasingly to confine contempt of court cases to instances where either there has been a substantial interference in ongoing legal proceedings, or there has been a defiance of court order. The common law of England and Wales, from which our contempt of court law has originated, no longer contains scandalising the court as a category of contempt: England has abolished it by the Crimes and Courts Act 2013.
This category of contempt, which is still recognised and punishable in Bangladesh, has the potential of significantly restricting freedom of speech and expression. The attitude of the Indian judiciary has also increasingly been more and more charitable in the face of scathing criticism of its judgments, as long as those criticisms have been made out of bona fide concern for improvement of the law and the legal system in general.
A recent example of this is an article on the political website www.thewire.in criticising a decision by the Karnataka High Court acquitting the former Tamil Nadu chief minister, J Jayalalithaa, in a corruption case. The article contained scathing criticism of the Karnataka High Court’s decision, referring to the judgment as containing “errors,” stating that jurists are “spitting fire” because of the poor quality of the judgment, that the judiciary is “giving legal sanction to corruption,” that the High Court is setting “a bad precedent, one that encourages bribery,” and that the judgment “will bring down the image of the Indian judiciary in the world.”
Does the law of contempt of court in Bangladesh conform to this modern trend which allows free speech to flourish? The Supreme Court of Bangladesh derives its power to punish for any contempt of itself from Article 108 of the constitution. The Contempt of Courts Act 1926, which merely deals with the High Court’s powers, in this regard is outdated and inadequate to say the least. There is no statute containing similar provisions with respect to the Appellate Division. In the light of the inadequacies of the 1926 act, the Law Commission headed by our former chief justice, late Justice Mustafa Kamal, prepared a draft of the Contempt of Court Bill, which was then finally enacted. While the new act was not without its share of flaws, it was a step in the right direction.
Unfortunately, it did not live long. Immediately after its enactment, a writ petition was filed in the High Court challenging the constitutionality of several sections of the new act. The judgment that followed declared the entire act to be unconstitutional and therefore void and of no legal effect. At present, the case is pending in the Appellate Division and as the operation of the High Court judgment was not stayed, the new act has no legal effect. Therefore, the main source of the law of contempt of court is not codified law but English common law as adopted by our judicial decisions.
In recent times, it may tend to give an impression that the Bangladeshi judiciary has taken a hard-line approach to contempt of court, as evidenced by the International Crimes Tribunal drawing up to nine contempt proceedings in three years. Others may argue that the tribunal has shown magnanimity that befits a judicial institution of its stature in dealing with these nine contempt proceedings by mostly cautioning and exonerating the accused contemnors for criticising the tribunal’s judgments.
There is always room for debate when the issue is free speech, vis-a-vis contempt of court. However, the same should not apply when the issue changes to the rights of convicted contemnors of the tribunal. There should not be any room for debate as to whether a right of appeal should be afforded to a convicted contemnor, especially given the very nature of contempt jurisdiction where the court is both the prosecutor and the judge, rolled into one.
Unfortunately, the International Crimes Tribunal Act 1973 (ICT Act), as it stands, does not afford a right of appeal to those convicted for contempt of the tribunal even though the ICT Act provides such right to convicted war criminals and the government. On the face of the law, there seems to be no rational justification or legitimate governmental objective for discriminating between convicted contemnors and convicted war criminals. This absence of a right of appeal becomes even unacceptable when one considers that, (i) appeal has been granted as of right by Article 103 of the constitution to those convicted and punished for contempt of the High Court, and (ii) a conviction for contempt of the tribunal carries a harsher punishment than a conviction for contempt of the High Court.
While a maximum of six months’ imprisonment or up to Tk2,000 fine or both has been prescribed for contempt of court by the Contempt of Courts Act 1926, a maximum of one year’s imprisonment or Tk5,000 or both has been prescribed for contempt of the tribunal by the ICT Act.
Absence of a right of appeal in the ICT Act in a case where a person may be put behind bars for up to a year is definitely a step backwards when one considers the global trend in relation to contempt of court. This lacuna in the ICT Act requires amendment, especially because the tribunal’s power to punish for contempt has the potential to affect three important fundamental rights of the citizens of Bangladesh, namely, the right to personal liberty, the right to freedom of speech and expression, and the right to freedom of press.
As we have seen, the ICT Act is far from flawless, and has been amended multiple times till date. One of the amendments extended the right of appeal to the government when it was previously only given to convicted war criminals. It is now time for another amendment to extend the right of appeal further.