September 27, 2013
By M Moneruzzaman
The High Court on Thursday declared the Contempt of Court Act 2013 ‘unconstitutional.’
The impugned law seeks to protect the interests of the journalists and a section of government officials and curtail the Supreme Court’s powers, said the court in its observations.
A two-judge bench of Justice Quazi Reza-Ul Hoque and Justice ABM Altaf Hossain delivered the verdict following a public interest litigation writ petition filed by Supreme Court lawyers Asaduzzaman Siddique and Ayeasha Khatoon.
The petitioners challenged the constitutionality of eight out of 20 sections of the law enacted on February 23, 2013.
They challenged sections 4, 5, 6, 7, 9, 10, 11 and 13(2) of the law for protecting the interests of certain groups of government officials and curtailing the powers of the Supreme Court.
This was for the first time that the High Court struck down a law enacted by the Awani League-led government.
The 2013 law had replaced and repealed the 1926 contempt of courts law.
Following the verdict, the 1926 law would stand restored replacing the 2013 Act enacted on February 23, said petitioners’ lawyer Manzill Murshed.
Attorney general Mahbubey Alam told New Age that the government would appeal against the verdict.
He said that he tried his best to protect the impugned sections ‘but the court has done as it thought best.’
The court said in the observations that the impugned sections provided ‘unfettered powers’ for the protection to a section of government officials and journalists, which is ‘undesirable’, ‘discriminatory and inconsistent’ with Articles 27, 108, 112 of the Constitution.
The articles stipulate ‘all citizens are equal before law and are entitled to equal protection of law, the Supreme Court… ‘shall have all the powers of such a court including the power subject to law to make an order for the investigation of or punishment for any contempt of itself, all authorities, executive and judicial, in the Republic shall act in aid of the Supreme Court.’
The court said that the Supreme Court never wished to be an impediment to the publication of truthful comments or criticisms ‘but the truthful publication must be within the limit of propriety.’
The court observed, ‘Total freedom without restriction leads to total chaos.’
The court said it can’t allow such of kind of freedom of the journalists who have no legal knowledge on how
to report on pending proceedings with the court.
The court said it cannot allow journalists ‘blanket powers’ as Section 5 of the act provides them like issuing ‘blank cheques’ to journalists who write as they wish.
Referring to Sections 10 and 8 of the 2013 Act, the court said the government officials were given impunity for disobeying any order of the court.
It cannot be respectful of democracy if government officers disobey the order of the court, said the court.
On April 3, the bench issued a rule asking the cabinet secretary, secretaries at the president’s office, the prime minister’s office and the secretaries of the ministries of law and parliament secretariat to explain why the impugned provisions would not be declared unconstitutional.
Except the cabinet secretary, no other secretary appeared in the court to explain.
On Wednesday, Kamal Hossain made a forceful plea not to strike down the 2013 contempt law.
The court gave him a good hearing but made it clear that it was not inclined to entertain his application to intervene in the PIL on behalf of the Administrative Service Association and local government division secretary and Prothom-Alo joint editor Mizanur Rahman Khan.
The court said that it could not at this stage entertain the application as it had closed the hearing for delivering its judgement on the eight impugned provisions.
Section 4 of the struck down law said that publication or expression in verbal or written words or visible signs or display regarding any proceedings of a court, which is not pending with the court, will not constitute contempt.
The distribution of such publications also will not constitute contempt if there is no reason for the distributor to believe that the matter is pending with the court, the section says.
Section 5 stipulated that publication of any objective and unbiased news on any proceedings of any court or any part thereof or publication of any fair and unbiased comment on the merit of case after its disposal will not constitute contempt.
Section 6 said that that making any statement before a higher court or the Supreme Court about a judge of a subordinate court in good faith will not amount to contempt.
The publication of any unbiased and objective news on any proceedings conducted in the chamber of a judge or ‘in camera’ will also not constitute contempt unless the court imposes a bar on such publication in public interest, said Section 7.
Section 9 stipulated that no action, which is not punishable under the act, would constitute contempt.
Section 10 said, if it is not possible for a public servant to implement or go by any judgement, order or direction because of any existing laws and rules or any other practical reasons, no contempt petition can be filed against the public servant.
Section 11 said that any accused will be allowed to give explanation and to be represented by a lawyer and the court will have the power to order the contemnors to appear in court if it thinks that the contemnors should be given personal hearing for the ends of justice.
Section 13(2) allowed contemnors to tender unqualified or unconditional apologies during the hearing in the appeal against the sentences against them.
On July 24, 2008 a High Court bench led by the then judge, Justice ABM Khairul Haque, declared illegal the Contempt of Court Ordinance 2008, with the observation that the caretaker government had no authority to promulgate it.
Source: New Age BD