CONTEMPT OF COURT: BANGLADSH PERSPECTIVE

Preface

Contempt of court is a challenging part of judiciary as well as journalism. It should be noted that there is a third freedom of expression issue related to the contempt of court doctrine when a journalist is held in contempt for refusing to obey a court order to disclose a source. The assignment mainly focuses on the ‘contempt of court, its categories, nature, problems, restrictions, protest against High Court verdicts in Bangladesh and so on’.

To complete the assignment I follow and use different secondary sources such as Books, Journals, Research papers.

I am optimistic that the assignment will able to reach its success.

INTRODUCTION

The law of contempt of court that has developed in Bangladesh and other parts of the sub-continent is more suppressive than that found in the United Kingdom and other common law countries. The current legislation, the Contempt of Court Act 1926, fails to strike a balance between protection of judiciary and freedom of expression. It is generally felt that the 1926 Act has been used more to protect judges from justified criticism and public scrutiny.

The courts are one of the most fundamental institutions where power is contested in a constitutional democracy. A functioning and an independent judiciary can restrain and hold the executive accountable together with other state institutions, as well as political and economic elites. A robust judiciary is imperative in establishing rule-based governance. In November 2007, the subordinate judiciary in Bangladesh was formally separated from the executive.

CONTEMPT OF COURT

Contempt of court is a court order which in the context of a court trial or hearing, declares a person or organization to have disobeyed or been disrespectful of the court‘s authority. Often referred to simply as “contempt,” such as a person “held in contempt,” it is the judge‘s strongest power to impose sanctions for acts that disrupt the court’s normal process. [01]

Contempt of court is the area of law which deals with behavior which might affect court proceedings. It takes many different forms, ranging from disrupting court hearings to disobeying court orders to publishing prejudicial information which might make the trial unfair. If someone commits a contempt of court, they can be punished, although the procedures for deciding whether they are guilty and for punishing them are currently different from those used for normal crimes.

HIGH COURT REVOKES CONTEMPT OF COURTS ACT

The High Court has annulled the Contempt of Courts Act, 2013 saying that the law was enacted only to protect journalists and public servants. The government will challenge the verdict, a deputy attorney general said. The bench of Justice Quazi Reza-Ul Hoque and Justice ABM Altaf Hossain delivered the verdict in response to a writ petition filed challenging eight provisions of the law. The court said as the sections 4, 5, 6, 7, 9, 10, 11 and 13(2) of the Act were contrary to the constitution, so the whole statute was unconstitutional, and it had no legal effect.

The Act was enacted on February 22 this year replacing the law of 1926 in the wake of huge demand from the journalists and public servants. The law stipulates that publishing “objective and unbiased reports” on the court proceedings and fair comment on a judgment should not be contempt of court. In this regard, the High Court said: “Criticism must be within the periphery of some limits, since total freedom without restriction leads to chaos.”

Referring to article 27 of the constitution, the court Thursday said it was surprising that the provision to protect the journalists in the Act “totally disregards all other citizens of the nation.” The constitutional provision says: “All citizens are equal before law and entitled to equal protection of law.”[02]

CONTEMPT IN THE FACE OF THE COURT

Contempt in the face of the court concerns misbehavior, usually in the courtroom itself that disrupts or shows disrespect towards the court or challenges the authority of the court. However, there is no precise legal definition of contempt in the face of the court.

Examples of contempt in the face of the court include:

(1) Assaulting anyone in court;

(2) Insulting the judge in court;

(3) Wearing offensive clothing or not wearing any clothing at all in court;

(4) Refusing to answer a question when ordered to do so by the judge; and

(5) Creating a disturbance elsewhere (such as in the corridor outside the courtroom) so that the court hearing is disturbed. [03]

CONTEMPT BY PUBLICATION

Contempt by publication is needed to protect the system of justice, including the right to a fair trial. This is because, in a criminal case, the jury should reach its verdict based only on the evidence which has been heard in court. Any information which the jury discovers from outside the courtroom will not have been examined by the parties and the judge. This could mean that this information which a juror relies on is mistaken or untrue. There are no reports of this order being made in the case of contempt by publication. This may be because it is unclear whether the Divisional Court can make this order once it has found the publisher guilty of contempt. [03]

REPORTING RESTRICTIONS

Under the Contempt of Court Act 1981, a “fair and accurate” report of what has happened in court is allowed and cannot be contempt, provided the hearing was in public and the report was published around the same time as the hearing took place.

So, for example, if the television news at 10pm describes what the witnesses in a murder trial said in open court that day, this will not be contempt. After all, it is important for the public to know what is happening in the legal system. [03]

INTERNATIONAL LAW AND STANDARD

Before examining the legal framework regulating freedom of expression and the administration of justice in different countries, it is useful to look at their status under international law.

The major international and regional human rights instruments on civil and political rights — the International Covenant on Civil and Political Rights (ICCPR), the European Convention on Human Rights (ECHR), the American Convention on Human Rights (ACHR), and the African Charter on Human and People’s Rights (ACHPR) — all protect both freedom of expression and the administration of justice. Freedom of expression is protected in Article 19 of the ICCPR as follows:

Everyone shall have the right to hold opinions without interference.

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.

The administration of justice, particularly the right to a fair trial and the presumption of innocence, is protected in Article 14 of the ICCPR, which states, in part:

(1) All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order or national security in a democratic society, or when the interest of the private lives of the Parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or guardianship of children.

(2) Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law. The permissible restrictions on freedom of expression are expressed in similar terms in the international and regional instruments, but the ECHR is more explicit than the others in setting out the protection of the administration of justice as a legitimate exception. [04]

SENTENCING

The maximum punishment for all types of contempt is two years in prison or an unlimited fine. Community sentences, such as unpaid work, are not available.

Additionally, a “third party costs order” can be made which requires a publisher to pay the costs incurred if the proceedings were prejudiced or impeded by the contempt.

Punishment can be imposed on both the journalist and the media organisation (for example, the newspaper as a whole can be fined), although it is rare for the individual journalist to be punished. No-one has been sent to prison for contempt by publication for over 60 years. The usual sentence is a fine and the court will calculate it by looking at things such as the seriousness of the contempt and the resources of the publisher. [04]

THE PROBLEMS WE ADDRESS

In summary, the main problems with the law in this area are as follows:

(1) There is a lack of clarity about some areas of the law. The behavior must be deliberate, but it is not clear whether the person accused of the contempt must also have intended to disrupt the court proceedings. For example, they might do something deliberately, but not realise that doing it would disrupt the court. It is not clear whether that would be a contempt.

(2) It is odd that section 12 does not include powers to deal with a person threatening anyone in the courtroom as contempt in the face of the court, given that it does include powers to deal with insults and interruptions.

(3) Contempt in the face of the court is dealt with differently by different courts. So, there is inconsistency – for example, section 12 only applies in the magistrates’ court, not in the Crown Court, where the common law applies.

(4) It is unclear how the right to liberty is protected and what the law on bail is for someone accused of contempt.

(5) It is not clear which rules of evidence apply to a contempt hearing.

(6) The sentence is limited to prison or a fine with no community sentence, such as unpaid work, available. It is unclear whether the magistrates can impose a suspended prison sentence.

(7) Some people have concerns about the impact of new technology on the law of contempt by publication. The rise of social media and so-called citizen journalism on the internet means that there is the potential for “everyone to be a publisher”.

(8) It is not clear whether the courts would treat social networking sites, such as Face book and Twitter, as publications to the public or a section of the public – it might depend on whether the users have turned on their privacy settings so their posting or tweet can only be viewed by a limited number of people. [05]

INTERNATIONAL CRIMES TRIBUNAL (BANGLADESH)

BANGLADESH suffered a violent birth. In the last days of 1971 the country then called East Pakistan was engulfed by torture, rape, mass-killing and other acts of genocide. The main perpetrators were Pakistani troops bent on preventing secession from “West Pakistan”. But the army had the support of many of East Pakistan’s fundamentalist groups, including Jamaat-e-Islami, which remains Bangladesh’s largest Islamic party. In 2010 Bangladesh established a tribunal to try those accused of war crimes. It is called the International Crimes Tribunal, though it is not an international court in the sense of being founded on international law. Rather it is a national court, based on a Bangladeshi statute passed in 1973 and amended in 2009 and 2012. It was very late to begin the search for justice, for the accused as well as for victims. But war crimes are subject to no statute of limitation. [06]

The International Crimes Tribunal (ICT) is a war crimes tribunal in Bangladesh set up in 2009 to investigate and prosecute suspects for the genocide committed in 1971 by the Pakistan Army and their local collaborators, Razakars, Al-Badr and Al-Shams during the Bangladesh Liberation War. During the 2008 general election, the Awami League (AL) pledged to establish the tribunals in response to long-demanded popular calls for trying war criminals. The first indictments were issued in 2010.

The government set up the tribunal after the Awami League won the general election in December 2008 with more than two-thirds majority in parliament. The War Crimes Fact Finding Committee, tasked to investigate and find evidence, completed its report in 2008, identifying 1600 suspects. Prior to the formation of the ICT, the United Nations Development Programme offered assistance in 2009 on the tribunal’s formation. In 2009 the parliament amended the 1973 act that authorized such a tribunal to update it. [07]

REACTIONS

Human Rights Watch initially supported the establishment of the tribunal and recommended amendments to the 1973 law. The government already had planned to update the law, and proceeded in consultation with experts.

When the tribunal was being planned, Stephen Rapp, the United States Ambassador-at-Large for War Crimes Issues, said that the “US government will help Bangladesh hold an open and transparent war crimes trial with the rights of defense for the accused.”

A Wikileaks leaked cable in November 2010 from the US State Department said, “There is little doubt that hard-line elements within the ruling party [AL] believe that the time is right to crush Jamaat and other Islamic parties.”

Bangladeshi opposition political parties have demanded the release of those held, claiming the arrests are politically motivated. Shafique Ahmed, the Minister of Law and Justice, disagrees, saying, “No one is being arrested or tried on religious or political grounds.”

Some human rights advocates are concerned that the mass rapes and killings of women may not be fully addressed in the prosecutions.

A conservative Muslim society has preferred to throw a veil of negligence and denial on the issue, allowed those who committed or colluded with gender violence to thrive, and left the women victims to struggle in anonymity and shame and without much state or community support.

The Bangladeshi government has dismissed criticisms of the legal provisions and fairness of the tribunal. Shafique Ahmed, the Minister of Law and Justice, said, “There is no scope for questioning the fairness and standard of the ongoing trial for war crimes during the Liberation War in 1971.”

In March 2013, the Economist criticized the tribunal, mentioning government interference, restrictions on public discussion, not enough time allocated for the defense, the kidnapping of a defense witness and the judge resigning due to controversy over his neutrality. [07]

ACCUSED AND VERDICTS

Abul Kalam Azad, a nationally known Islamic cleric and former member of Jamaat, was charged with genocide, rape, abduction, confinement and torture. He was tried in absentia after having fled the country. In January 2013 Azad was the first suspect to be convicted in the trials; he was found guilty of seven of eight charges and sentenced to death by hanging.

On February 5, 2013, the ICT sentenced Abdul Quader Mollah, assistant secretary of Jamaat, to life imprisonment. Mollah was convicted on five of six counts of crimes against humanity and war crimes. He was accused of shooting 344 people and the rape of an 11 year old girl.

On 28 February 2013, Delwar Hossain Sayeedi, the deputy of Jamaat, was found guilty of genocide, rape and religious persecution. He was sentenced to death by hanging.

Violence with police & protest Jamaat-e-ishlami(left), Sayeedi on Tribunal(right)

Muhammad Kamaruzzaman was indicted on 7 June 2012 on 7 counts of crimes against humanity. On 9 May 2013 he was convicted and given the death penalty on five counts of mass killings, rape, torture and kidnapping.

On 3 November 2013, the International Crimes Tribunal sentenced Chowdhury Mueen-Uddin to death after the tribunal found him guilty of torture and murder of 18 intellectuals during 1971 Liberation war of Bangladesh.

Ghulam Azam was found guilty by the ICT on five counts. Incitement, conspiracy, planning, abetment and failure to prevent murder. He was sentenced on 15 July 2013 to 90 years imprisonment.

Ali Ahsan Mohammad Mojaheed sentenced to death by hanging on 17 July, 2013.

Prior to the verdict, Jamaat members called a general strike in Dhaka in protest of the trials, which it said were politically motivated. Violence erupted in the course of this. [o7]

JAMAAT-SHIBIR’S VIOLENCE &PROTESTS

Jamaat-e-Islami supporters and their student wing, Islami Chhatra Shibir, called a general strike nationwide on December 4, 2012, which erupted in violence. They have demanded the tribunal be scrapped permanently and their leaders be released immediately.

Shibir, the student wing of Jamaat, led violent protests against the trials beginning with a general strike on December 4, 2012; they attacked police officers throughout the country. Shafique Ahmed was also attacked, in a skirmish which resulted in three police officers being injured.[43] Numerous vehicles, including one of the US embassies in Dhaka, were torched and vandalized. In another incident, police fired tear gas and rubber bullets at the activists. One Jamaat-e-Islami activist was killed and scores were injured when police used live ammunition against the protesters during clashes in December 2012. The activists were demanding the release of Miah Golam Parwar, Delawar Hossain Sayedee and other party members being tried. [07]

GANOJAGORON MANCHA

After Abdul Quader Molla, assistant secretary general of Jamaat, was convicted in February 2013 and sentenced to life imprisonment rather than capital punishment, a peaceful demonstration started at Shahbag intersection in Dhaka. Tens of thousands of mostly young demonstrators, including women, have called for the death penalty for those convicted of war crimes. Non-violent protests supporting this position have occurred in other cities as the country closely follows the trials.

Ganojagoron Mancha sought for death penalty of all war criminals

Following the verdict, large-scale, non-violent protests started on 5 February 2013 in Dhaka, with demonstrators calling for the death penalty for Mollah and any others convicted of war crimes. Tens of thousands of people filled the Shahbag intersection, with more coming in the days following. Activists of Ganojagaran Mancha, burst into demonstrates soon after the International Crimes Tribunal-1 pronounced the verdict. Later, they walked in a procession to the tribunal, exulting at the judgment. The youth activists had gathered in Sahbag as per their earlier announcement to stage a sit-in there, demanding death penalty for the war criminal.

The protest has spread to other parts of the country, with sit-ins and demonstrations taking place in Chittagong, Sylhet, Barisal, Mymensingh, Khulna, Rajbari, Rajshahi, Rangpur, Sunamganj, Noakhali, Naryaongang ,Narsingdiand many other parts in Bangladesh.

STATEMENT OF A LAWYER

For better understand here give a statement of a honorable lawyer about Ganojagoron Manch as well as Jamaat Shibir on contempt of court:

What do you think about contempt of court?

Lawyer: Contempt of court refers any tasks or activities, movements, comments that influence the verdict of a court. Disobeying the court is also contempt of court.

Do you considered that Ganojagoran Mancha and Jamaat-e-islamii’s protests and activities against verdict of International Crime Tribunals are contain contempt of court?

Lawyer: As any activities, movements, comments that influence the verdict of a court is considered as contempt of court, so these are obviously fall into contempt of court.

The Ganojagoron Mancha protest peacefully against the court(ICT) verdicts for the death penalty of war criminals. The common people accept and support this activity so this is the interest of the whole people and it’s called the mass or the democratic movement.

On the other hand Jamaat-e-islami called hartal and take violence activities beyond the country ruling system to save the enemy of our country. So it’s not a mass or democratic movement for us.

  1. MAHBUB-UL ALAM (JEWELE)

LLB, LLM (LAW & JUSTICE) UNIVERSITY OF RAJSHAHI

ADVOCATE, JOURJE COURT, CHAPAI NAWABGANJ

CONCLUSION

The law of contempt is essentially concerned with interference with the administration of justice. lthough criminal contempts of court may take a variety of forms they all share a common characteristic: they involve an interference with the due administration of justice, either in a particular case or more generally as a continuing process.

As the above analysis illustrates, there is a significant tension between freedom of expression and the administration of justice because of the high public interest in maintaining and protecting both principles. There is also a clear difficulty in finding functional equivalents between the contempt of court principles which exist in common law systems and the disparate principles which exist in civil law and other jurisdictions. One hopes that this paper has demonstrated that there is both a need and a basis to develop international standards in this area.

RFERENCES

http://en.wikipedia.org/wiki/Contempt_of_court[01]

http://www.dhakatribune.com/law-amp-rights/2013/sep/26/hc-annuls-contempt-court-act-2013[02]

International Seminar on Promoting Freedom of Expression With the Three Specialized International Mandates; Hilton Hotel London, United Kingdom 29-30 November 2000 [03]

Foe-and-contempt-of-court.pdf [O4]

cp209_contempt_of_court_summary.pdf[05]

Trying war crimes in Bangladesh: The trial of the birth of a nation; The Economist; 15 December 2012[06]

judiciary – policy – note.pdf; Institution of Accountability: Judiciary Policy Note; Institute of Governance Studies BRAC University.

International_Crimes_Tribunal_(Bangladesh).htm[07]

http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=140

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Published by

Lalon Chandra Singh

Lalon Chandra Singh Department of Mass Communication & Journalism Begum Rokeya University, Rangpur.

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