ARTICLE TEXT

Every constitution that guarantees free speech also protects the courts from it. Article 39 of the Constitution of Bangladesh guarantees freedom of thought, conscience and speech, but subjects it to reasonable restrictions in relation to contempt of court. Article 108 makes the Supreme Court a court of record with power to punish contempt of itself. The question is not whether contempt should exist but how far it should reach. Should it be a crime to say that a judge is biased, incompetent or corrupt?

The Law in Bangladesh

The governing statute is the Contempt of Courts Act 1926, a four-section colonial law that defines nothing and leaves the content of contempt to the common law. In 2013 Parliament tried to modernise it. The Contempt of Courts Act 2013 defined contempt, provided defences of truth and fair comment, and exempted government officials acting in good faith. On 26 September 2013, the High Court Division, in a judgment by Justice Quazi Reza-Ul Hoque and Justice ABM Altaf Hossain, declared the new Act unconstitutional. It held that several sections violated Article 108 by limiting the Supreme Court’s inherent power to punish contempt, and that the exemption for officials offended equality under Article 27. The 1926 Act was restored. The full judgment was released only in November 2022.

The result is that Bangladesh has no statutory definition of contempt. Judges decide, case by case, what crosses the line. Journalists, lawyers, ministers and academics have all been summoned. Some have been fined or briefly imprisoned; many more have apologised unconditionally rather than fight. The chilling effect on public discussion of the judiciary is real, even where no proceedings are brought.

The English Turn

The offence of scandalising the court, meaning conduct that lowers the authority of the judiciary in the eyes of the public, was part of English common law for centuries. It fell into disuse in the twentieth century. In 2012, contempt proceedings against Peter Hain, a former Northern Ireland Secretary, over criticism of a judge in his memoirs prompted the Law Commission to review the offence. It recommended abolition, and section 33 of the Crime and Courts Act 2013 abolished scandalising the judiciary as a form of contempt in England and Wales. The other forms of contempt, interfering with proceedings, breaching court orders and prejudicing a fair trial, remain.

The reasoning was simple. Judges in a mature democracy do not need criminal law to protect their reputations. The proper answer to unfair criticism is reasoned judgment, public confidence built over time, and, where a statement is false and defamatory, the ordinary law of defamation.

The Case for Keeping the Offence

Defenders of the Bangladeshi position argue that England’s conditions do not apply here. The judiciary in Bangladesh operates in a highly polarised political environment, where attacks on judges are often organised rather than spontaneous, and where a campaign against a court can be a prelude to defying its orders. Public confidence in the courts is fragile. A judge who is publicly accused of corruption without evidence cannot answer back; the contempt power is the court’s only shield.

They add that the power is rarely used, that courts routinely accept apologies, and that the alternative, judges suing for defamation in their own courts, would be worse.

The Case for Reform

Reformers reply that a power which is rarely used but always available is the most effective form of censorship, because it works through self-restraint. They point to the absence of any statutory definition, which means no one can know in advance what is punishable. They note that truth is not clearly a defence, so that a journalist who exposes real judicial misconduct may still be in contempt. And they observe that the same courts that punish criticism have themselves, in recent years, issued judgments containing sweeping political commentary, the Sixteenth Amendment case being the obvious example. A judiciary that comments on politics must expect politics to comment back.

A Way Forward

Between abolition and the status quo lies the option Parliament tried in 2013: a statute that defines contempt, provides defences of truth and fair comment made in good faith, and confines punishment to conduct that actually obstructs justice. The 2013 Act failed constitutionally because it went further, trying to cut down the Supreme Court’s inherent power and to shield officials. A more carefully drafted law, respecting Article 108 while codifying the defences, would likely survive.

Until then, the position remains uneasy. Courts in Bangladesh decide cases of enormous political consequence, from constitutional amendments to the fate of governments. The public has every right to discuss those decisions, and the judges who make them, with vigour. The law of contempt should protect the administration of justice, not the feelings of those who administer it.

Sources

1. High Court Division, Writ Petition No. 2964 of 2013 (Contempt of Courts Act 2013), judgment (PDF): https://www.hrpb.org.bd/public/images/judgement/writ-petition-no.-2964-of-2013—challenge-the-contempt-law-2013.pdf
2. The Daily Star, HC releases full verdict scrapping contempt of court law (November 2022): https://www.thedailystar.net/news/bangladesh/crime-justice/news/hc-releases-full-verdict-scrapping-contempt-court-law-3171076
3. Crime and Courts Act 2013, section 33, legislation.gov.uk: https://www.legislation.gov.uk/ukpga/2013/22/section/33
4. Constitution of Bangladesh, Article 39 and Article 108: http://bdlaws.minlaw.gov.bd/act-367.html