The High Court (HC), in a significant verdict on Thursday, declared illegal and unconstitutional the Contempt of Court Act 2013, which was passed in February this year.
The Act has certain provisions which allow the media as well as government employees to be critical of court judgments. In its verdict, the HC said the Contempt of Court law has curtailed the constitutional power of the High Court and some of its Sections were in direct conflict with Sections 27, 108 and 112 of the Constitution.
The court said according to Articles 108 and 112 of the Constitution, the HC possesses inherent power to summon anybody before it for committing contempt of court, and the administration will act in aid of the Supreme Court according to Article 112 of the Constitution.
The HC bench, comprising Justice Dr Quazi Reza-Ul Hoque and Justice ABM Altaf Hossain, passed the order after concluding a hearing on a writ petition that was filed challenging the legality of the Contempt of Court law.
The writ petition was filed challenging the legality of Sections 4, 5, 6, 7, 9, 10, 11, and 13 (2) of the Contempt of Court Act. However, in the verdict, the HC declared illegal and unconstitutional the entire Act.
In its observation, the HC said that the Constitution has provided an inherent power to the HC to deal with contempt of court proceedings. But Sections 4, 5, 6, 7, 9, 10, 11, and 13 (2) of the Contempt of Court Act have curtailed the constitutional power of the HC in dealing with the contempt of court cases, it added.
Every citizen used to get the same rights in any law enacted by the government. However, the Contempt of Court law has ensured special security for two sections — journalists and public servants — which is discriminatory in the eyes of the law, the court observed.
It is surprising that the Act has provided special facilities for special classes of people, the court said.
“The press is a major force of any state. We are taking assistance from the press every day. We have not restricted the press. The freedom of the press should be upheld. But its freedom should not be unlimited. It should have a limitation,” the HC said.
“The freedom of the press should not be unlimited, although it helps the court,” it added.
“We don’t want to prevent the publication of truthful comments or criticisms, but the truthful publication must be within the limit of the (constitutional) periphery as full freedom without restriction leads to chaos,” the HC noted.
According to Section 4 of the Contempt of Court Act 2013, innocent publication or distribution is not contempt of court.
Section 5 says publication of impartial and authentic reports is not contempt of court while Section 6 states that levelling allegations against the presiding judge of a subordinate court is not contempt of court.
As per Section 7, publications of information on ongoing proceedings (of cases) in a chamber or closed-door-room, except for a few events, are not contempt of court.
The HC in its order today said “we cannot hand over a ‘blank cheque’ to those who have no knowledge about the law and do not know how to write about the judicial activities” for criticising the court proceedings.
“We cannot accept any comment made by anyone over the continuous process of the judicial proceedings. The criticism must be done after a certain period of time and it should be done within a limitation in order to avoid chaos,” the HC observed.
Referring to the Riazuddin case, the HC said the consequence of criticism was not good if anyone made criticism over a matter without special knowledge of that matter.
The court said Section 10 of the Contempt of Court Act 2013 has given protection for violating the court order, which is not to be considered a democratic right, it added.
Section 10 states that the allegations of contempt of court cannot be brought against government officials for their failure to implement the court’s orders.
According to Section 9, a contempt of court accused will not be punished for violating this law for publishing anything or committing any act which is not considered a punishable offence under the law.
Section 11 said the court can exempt an accused of contempt of court case if he/she can provide satisfactory information in reply to a show-cause notice.
Section 13 (2) said the court can pardon any accused of the contempt of court case if he/she offers unconditional apology before the court.
The petitioner’s counsel, Manzill Murshid, said the High Court will now deal with the contempt of court cases against anybody under Article 108 of the Constitution. He also said lower courts will also conduct the contempt of court cases under the Contempt of Court Act 1926. This Act has given the lower courts power to issue any order against any accused in contempt of court cases.
He pointed out that Parliament had passed the Contempt of Court Act 2013 on February 23, amending the law of 1926.
Attorney general Mahbubey Alam said the court annulled eight Sections of the Contempt of Court law and declared the whole Act illegal and unconstitutional.
“The government has formulated the law. We have submitted our argument before the HC during the rule hearing to keep the Contempt of Court law as it is. But the court declared it illegal as per its own consideration,” Alam added.
Replying to a query, he said the decision on filing the appeal against the HC order would be taken later on, after holding discussions with the government.
However, law minister Shafique Ahmed told The Independent that the government would appeal against Thursday’s High Court order repealing the Contempt of Court Act 2013.
“We will file an appeal against the High Court verdict with the Supreme Court for an interim order,” he said, adding that the necessary instructions have been given to the attorney general’s office.
Advocate Manzill Murshid, counsel for the petitioners, told The Independent that the Contempt of Court Act 1926, which was repealed after the new enactment, will be retained following the HC verdict.
Referring to the provisions of the Act, Murshid said the court cannot summon any government official before it in a contempt of court case and the contempt of court case against any government official will become ineffective immediately after his/her retirement. Such a provision is contradictory to the Constitution, he pointed out.
Supreme Court lawyer Advocate Asaduzzaman Siddiqui and Advocate Ayesha Khatun filed the writ petition in April, challenging the legality of the contempt of court law.
In the petition, they claimed that eight provisions of the law are against the Constitution.
In response to the writ petition, the HC on April 3 issued a rule asking the government to explain the constitutionality of eight provisions.
Journalist Mizanur Rahman Khan and the Bangladesh Administrative Service Association filed two separate supplementary petitions to include themselves as parties in the matter.
After concluding hearing on the rule, the HC bench passed the judgment today.
Dr Kamal Hossain appeared for the supplementary petitions during the hearing while deputy attorney general Bishwajit Roy represented the state.
Talking to The Independent, Dr Kamal Hossain opined that the government should file an appeal with the Supreme Court against the High Court verdict that declared the Contempt of Court Law 2013 illegal and unconstitutional.
The constitutional expert expressed hope that the matter would be settled through the Appellate Division verdict since the law was passed in Parliament by an elected government.
“If the government files an appeal with the apex court against the HC order, the Supreme Court will deliver the final verdict over the matter,” he noted.
He said everyone felt the importance of the Contempt of Court law since before enacting the law, there were no guidelines regarding contempt of court.
“If there were guidelines relating to contempt of court, the unwanted incidents that took place earlier might not have occurred,” he observed, citing some examples of contempt of court verdicts passed by the court against media personnel.
The law is needed more for the media, so that they can publish reports of incidents truthfully, he said. After taking the opportunity from the law, the media could publish incidents truthfully, which was not incorporated in the previous law of 1926, he added.
Referring to the contempt of court laws that exist in other countries, he said there were opportunities in other countries to publish truthful reports which criticise the court proceedings.
Eminent jurist barrister Rafique-ul Huq also felt that the issue should be settled in the Appellate Division.
“Let the Appellate Division decide about the Contempt of Court law, which was passed by Parliament,” he told The Independent.
Giving thanks to law minister Shafique Ahmed for his decision to file the appeal against the HC order, the eminent jurist also said the Appellate Division should examine the law and then deliver the final verdict on the matter.
-With The Independent input
