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Safeguarding Freedom of Speech: A Case Note on Abul Kalam Azad vs. David Bergman [ICT-BD (ICT-2) Miscellaneous Case No.01 of 2014]

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Introduction

Right to freedom of speech was originally supposed as negative right free from governmental interruptions in several realms.[1] Despite the high level of recognition by International Convention on Civil and Political Rights, right to freedom of expression is not an unlimited one. Article 39 of the Bangladesh Constitution guarantees this right subject to any reasonable restrictions imposed by law in the interests of the security of the state, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement.[2] The court could treat all incidental burdens on fundamental rights applying strict scrutiny.[3] This case note narrates the reasoning behind holding some publications as contemptuous to the court and it clarifies the provision  of safeguarding freedom of speech.

Facts

David Bergman, a foreign national, working as a journalist in Bangladesh published three derogatory articles in his personal blog. In the first article titled ‘Sayedee indictment: 1971 deaths’ Berman made a sub judice issue controversial questioning the ‘death figure in 1971’ which has curtailed the authority of a court of law. Consecutively, the two other articles titled ‘Azad Judgment Analysis 1: in absentia trials and defense in inadequacy’ and ‘Azad Judgment Analysis 2: Tribunal Assumptions’ vehemently criticized the judicial process of the Tribunal by terming it ‘misleading’. Perceiving these articles as incentive, demeaning and disparaging, the Applicant brought a contempt proceeding against Bergman under section 11(4) of the International Crimes Tribunal Act 1973. The Applicant alleged that Bergman as a habitual contemnor attempted to obstruct the due course of justice of the Tribunal which neither come within the ambit of “fair criticism” nor made on “good faith” or in the “public interest”.[4] Bergman was also alleged that with ‘malicious intention’ he caused hurt to the emotion and aspiration of the nation by creating controversy on a lawful pending trial. On the contrary, Bergman argued the Tribunal as ‘No Court of Record’, no locas standi of the applicant and also defended saying the alleged criticism quite ‘fair’ and permissible on ‘good faith’ and in the ‘interest of public’.[5] The alleged also argued that power of contempt as an extra ordinary power should be used sparingly in extra ordinary situation.[6]

Decision Overview

The Tribunal set out itself as a ‘Court of Record’ as the Act of 1973 empowers it to punish any contemptuous act. The Tribunal found the first alleged article contemptuous to court as it was not made of ‘public interest’, except demeaning the emotion of the nation.[7] Tribunal also held that publishing ‘misconceived’ and ‘immaterial’ criticism on the issue of holding trial in absentia before the ICT-2 in the name of right to freedom of expression, Bergman intended to lower down and demean Tribunal’s authority and ability that is being ‘scandalous’ constitutes the offence of ‘contempt’.[8]

According to the court, by his last alleged article, Bergman again exceeded his limit and professional ethics using derogatory, unfounded and scandalous comment intending to deliberately attack Tribunal’s dignity, authority and ability.[9] Tribunal found David Bergman’s view as slanderous, unholy and mindset to demean and malign not only the trial process in the Tribunal but also the ‘magnificent war of liberation’.[10] After scrutinizing the case the Tribunal came out with the decision that Bergman is guilty of contempt to court and therefore he was sentenced to simple imprisonment until the full payment of his fine Tk. 5000 under the 1973 ICT Act.

Reasoning of the decision                      

The Tribunal again cited the judgment of Umaria Pamphlet Case[11] that is criticism interfering with due administration of justice cease to be fair reasonable criticism and would scandalize courts. Fairness of a trial process is a notion to be established in the mind of public and be maintained by the Tribunal, a court of law and no one can abuse or impair the efficiency, fairness, image and public confidence and respect in the name of exercising right to freedom of expression.[12] Publicly criticizing on an sub judice issue leads to the contempt of court. Here Tribunal relies upon an observation of the Apex Court in case of Advocate, Riaz Uddin Khan vs. Mahmudur Rahman[13] where it was held that factual correctness is not recognized as defense in the law of contempt. As of failure to prove that the alleged articles was in the interest of public, the criticism should not be guarded by the right to freedom of speech rather these relate to sensitive issue without appearing to have been done reasonably and in good faith. Section 11(4) of the ICT Act 1973 states, “A Tribunal may punish any person, who obstructs or abuses its process or disobeys any of its orders or directions, or does anything which tends to prejudice the case of a party before it, or tends to bring it or any of its members into hatred or contempt, or does anything which constitutes contempt of the Tribunal, with simple imprisonment which may extend to one year, or with fine which may extend to Taka five thousand, or with both.”

Importance

This case plays an incredible role while understanding the parameter of reasonable restrictions upon some fundamental rights. Tribunal here was on a leading process while determining the doctrine of scandalizing the court and criticism involving public interest. On answering the question of locas standi of the applicant, Tribunal hold the judgment of Chief Justice Beg in the case of Mulgaokar vs. Unknown[14] where it has been observed that when there appears some scheme which must damage confidence in our judicial system and demoralize Judges of the highest court by making malicious attacks, anyone interested in maintaining high standards of fearless, impartial, and unbending justice will feel disturbed. Azad vs. Bergman[15] case was of enormous importance to ensure that making an issue controversial to the public and post judgment criticism on sub judice matter are not permissible rather contemptuous to the court. The alarming reminder of this case is Tribunal as a court of law has the full authority to punish any contemnor of the court.

Conclusion

No one has absolute unfettered right to freedom of speech. It is inappropriate to comment on any controversial issue pending before trial and to criticize any post judgment that cause harm to the dignity, integrity and honor of justice. Criticism on any judgment must be made in good faith concerning public interest and should not harm the notion of justice to the public. By this case, a parameter has been drawn on post verdict criticism. Courts always welcome any post judgment criticism only if it is not made intentionally to derogate the institutional authority and its dignity. Freedom of speech has been safeguarded in consistence with the supreme law of the land.

Writer: Mohima Akter, Student of Law, University of Chittagong. 

 

Endnote:

  1. Valdes, Francisco, Foreword: Under Construction. LatCrit Consciousness, Community, and Theory, California Law Review, vol. 85, no. 5, 1997, pp. 1087–1142, JSTOR, https://www.jstor.org/stable/3481057/, Accessed 20 September, 2020.
  2. Clause 2, Art. 39 (freedom of thought and conscience, and of speech), Part III, The Constitution of the People’s Republic of Bangladesh.
  3. Source: Harvard Law Review, Apr. Incidental Burdens on Fundamental Rights Author(s): Michael C. Dorf, 1996, Vol. 109, No. 6 (Apr., 1996), pp. 1175-125, URL: https://www.jstor.org/stable/1342214.
  4. ICT-BD [ICT-21] Miscellaneous Case No. 01 of 2014 at page 6-7.
  5. Id. at 5.
  6. Id. at 5.
  7. Id. at 11.
  8. Id. at 18-19.
  9. Id. at 20.
  10. Id. at 38.
  11. Ram Dayal vs. State of UP, AIR 1978 SC 921.
  12. ICT-BD [ICT-2] Miscellaneous Case No. 01 of 2014 at page 23-24.
  13. 63 DLR(AD) 2011, page 53, para 79
  14. 1978 AIR 727 , at p. 733, para 15
  15. ICT-BD [ICT-21] Miscellaneous Case No. 01 of 2014

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