Time to rethink contempt?

The contempt law as it exists in Bangladesh is something of an anachronism that is inconsistent with the functioning of a modern democracy.

Contempt is governed by the Contempt of Courts Act, 1926, and the line of cases that it has engendered.

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The act was promulgated by the British colonial government in 1926 -- as were many of the laws that regrettably remain on the books in Bangladesh -- to serve the purposes of an unelected authoritarian administration.

It makes sense that a foreign authority ruling over a restive native population would wish to severely restrict dissent -- but this abridgement of free speech has no place in a democracy in which freedom of expression and the press is enshrined as a constitutional right.

To be sure, Article 39 of the Bangladesh Constitution makes it quite clear that freedom of expression and the press is subject, among other things, to reasonable restrictions imposed by law in relation to contempt of court.

Nor would anyone argue with the fact that freedom of expression and the press must be subject to reasonable contempt laws.

I agree that contempt power is indispensable to the smooth functioning of the judiciary. It is the power by which the court can enforce the effective administration of justice.

The court must have recourse or means by which it can ensure compliance with its rulings and demand obedience to its orders. Without the power of contempt, the courts are powerless to ensure the administration of justice.

The court needs means to ensure that subpoenas are honoured, that witnesses testify, that court orders are complied with, etc. In all these cases the contempt power of the court is indispensable.

Contempt of court can be defined, according to this understanding, as one, doing something that interferes with the court's administration of justice, or two, of not obeying or respecting the authority of the court.

But it is the third element of contempt as it is understood in Bangladesh -- what is knows as "scandalising the court" -- criticism of a judge, his judgement, or the institution of the judiciary -- that I believe needs to be rethought.

I can readily comprehend why an authoritarian administration would wish to ensure that the workings of the judiciary remain above criticism, but such a doctrine is simply inconsistent with the imperatives of liberal democracy.

Such a doctrine presupposes that the courts are either infallible, or if not infallible, must be seen to be infallible.

An authoritarian administration that arrogates to itself the power to rule indefinitely regardless of performance has a readily apparent stake in ensuring that its courts retain the imprimatur and appearance of infallibility.

In contrast, however, a liberal democracy that depends upon robust debate and where administrations can and do fall due to their non-performance or malfeasance has no need to retain such an appearance.

Indeed, maintaining such a facade runs counter to the very notion of liberal democracy where administrations must rise and fall on their merits.

Courts are fallible and judges are human. They can make mistakes. Why, therefore, should they be shielded from critical scrutiny?

In many countries the law holds that fair criticism of a judicial decision that does not cast aspersions on the judge in question cannot be construed as contempt.

Such a theory has not been tested in Bangladeshi courts, but until and unless such fair criticism is found to be not contempt, the media will continue to avoid comment on the merits of a judgement.

It seems to me that permitting simple criticism of a case as long as it is offered in a fair and reasonable manner should be beyond question.

That is the first reform to the law of contempt that I would suggest.

The second reform would be to permit a defense of truth in cases of contempt.

The way the law stands now, it does not matter whether what is said or written about a judge or the judiciary is true. If it is construed as bringing the judge or the institution of the judiciary into disrepute, it is subject to a charge of contempt.

Truth should always be a defence. If someone falsely maligns a judge, the judge can always bring a simple defamation cause of action. But if the criticism is true, why should the person making it be punished?

The idea that a judge must remain above criticism and imputations of impropriety makes no sense unless judges are infallible.

If a judge has issued a corrupt judgement or has otherwise acted in an improper manner, he or she should be held to account.

Neither the legislature nor the executive branch arrogate to themselves the power to remain above criticism. So why should the judiciary?

I understand that denigration of the institution of the judiciary can have harmful consequences. It is important for the public to repose its faith in the institutions of government and that gratuitous insult or aspersion not be cast against the judiciary.

But in circumstances where the judiciary is far from infallible, surely it does more harm than good to maintain such a charade.

The cornerstone of good governance is accountability and transparency, and excessive deference to the judiciary is inconsistent with these this understanding.

In Bangladesh today we need to give serious consideration to resetting the scales when it comes to balancing the needs of a free media with those of the dignity of the judiciary.

Right now the balance is tilted quite heavily in favour of the judiciary, and it is my firm belief that such a tilt cannot possibly be in the long term interests, either of the judiciary, or of the country as a whole.

The tilt serves only to shield the judiciary from careful scrutiny, and in a polity where the make-up and performance of the judiciary is a crucial issue of national importance, it makes little sense for the matter to be off limits to debate.

Indeed, perhaps the best way to protect and safeguard the institution is to expose it to the slings and arrows of robust criticism and debate. Nothing is so injurious to an institution of government than blanket immunity from critical scrutiny.

For its part, the press itself has a duty to report on legal matters responsibly and ensure that they do not write stories that bring the dignity of the judiciary into disrepute or call into question the integrity of the court without due care and caution.

The press must educate itself about legal matters so that its coverage of the court is informed and even-handed and avoids sensationalism and scandal. The right to fairly criticise the court does not give the press the right to demean the court or to make unfair or unjustifiable allegations and accusations. Respect is a two-way street.

In fairness to the judiciary in Bangladesh, it has, in general, not misused its contempt powers, and has ruled with moderation and temperance when it comes to cases of contempt before it.

Rules and applications have typically been disposed of with acceptance of unqualified apology or been set aside on appeal. In a significant number of cases the courts have shown lenience and generosity to the respondents and disposed of the cases forthwith.

Nevertheless, the fact that the judiciary has exercised considerable prudence and circumspection in its application of contempt of court does little to limit the chilling effect of the doctrine of contempt as it exists under Bangladeshi law.

The simple truth is that the media is itself unduly circumspect and often chooses to censor itself rather than run the risk of a contempt order. In the long run this kind of excessive circumspection benefits no one.

The right to freely be critical of a judge or the judiciary -- if warranted -- is a right whose time has come in Bangladesh.

Zafar Sobhan is Assistant Editor of The Daily Star.