Is the law governing contempt of court in Bangladesh adequately and effectively defined?

CONTEMPT (721 x 430)The Constitution of the People’s Republic of Bangladesh (hereinafter “the Constitution”) is another important source for the law on contempt. Under Article 78 of the Constitution, members of the Parliament have been accorded with special privileges and immunities from court proceedings to ensure the effective operation of the proceedings in Parliament.Article 108 of the Constitution provides that “the Supreme Court shall be a court of record and 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.” This Article has been the guiding principle for the Supreme Court of Bangladesh in any case involving contempt of court.
The next important legislation that falls relevant for our consideration is the Code of Civil Procedure, 1908 (hereinafter “CPC”). Section 135 of the CPC grants the Judge, Magistrate or other judicial officer exemption from arrest under civil process while going to, presiding in, or returning from, his Court. In addition to the privileges under Article 78 of the Constitution, section 135A of the CPC provides exemptions to members of legislative bodies from arrest or detention under civil process. Moreover, Order 16, rules 10-12 of the CPC lays down the procedure to be followed where a witness fails to comply with a court summons and provides the court with extensive power to make orders of attachment of property and fine. Further powers accorded to the court in regard to ensuring the proper execution of a decree passed by it are set out under Order 21, rules 30-32 of the CPC. Where a party fails to obey an injunction order, Order 39, rule 2(3) of the CPC confers power upon the court to make order for detention of such person in the civil prison for a term not exceeding six months. Furthermore, where it appears to the court to be “just and convenient” the court may make an order for appointment of a receiver of any property in dispute.
Lastly, under section 10A of the Administrative Tribunal Act 1980, the Administrative Appellate Tribunal possesses the power to punish for contempts of its authority or that of any Administrative Tribunal in a manner similar to that of the High Court Division of the Supreme Court.
It is now pertinent to consider the effectiveness of the Contempt of Court Act 2013 in comparison to its predecessor. The Contempt of Court Act 2013 came into force on 23 February 2013 and expressly repealed the Contempt of Court Act 1926. It is apparent from the Law Commission’s report of 2005 that the new Act was introduced with the aim of removing the ambiguities present with the 1926 Act.Importantly, the new 2013 Act appears to now provide a definition to the term “contempt of court” which includes both civil contempt and criminal contempt. Importantly, section 3 of the 2013 Act preserves the old laws as discussed in the preceding paragraphs and the new Act operates “in addition” to them when dealing with contempt cases. In the 2013 Act, several provisions discussing procedural law like High Court’s jurisdiction, procedure to be followed by Supreme Court, appeal, limitation period for appeal have been added.
However, there are certain additions to the 2013 Act which, although have been innovating compared to the 1926 Act, may be considered nowadays as controversial. These are sections 4, 5, 6, 7, 9, 10, 11 and 13(2) of the Contempt of Court Act, 2013. The reason behind this is due to the fact that these provisions appear to fall ill in the light of two Supreme Court of Bangladesh decisions.
In order to understand the current position of these provisions, it is highly relevant to first consider the Appellate Division case of Advocate RiazUddin Khan v MahmudurRahman. In this case, allegations of contempt of court was brought against the Editor-in-Charge and several staff members of the daily “Amar Desh” newspaper regarding one of their published articles which depicted that the highest Court of the country passed the “orders in reference” at the dictation of the learned Attorney General or his officers. The apex court found this to be scandalizing and questioned the integrity, impartiality and independence of the highest Court of the country. The court held that Article 108 of the Constitution empowered the Supreme Court, being a “court of record”, to impose punishment for any contempt of itself. Mr Justice SK Sinha cited the case of Supreme Court Bar Association v Unionof India where the Supreme Court of India argued that “the power to punish for contempt is inherent in a Court of Record and no act of Parliament can take away that inherent jurisdiction to punish for contempt and the Parliament’s power of legislation on the subject cannot, be exercised so as to stultify the status and dignity of the Superior Courts”. The court accordingly found the respondents guilty of contempt of court.
Although the Appellate Division decided theabove-mentioned case before the enactment of Contempt of Court Act, 2013, this case perhaps provided the justification behind the High Court Division’s decision in Advocate Asaduzzaman v Bangladesh and others in Writ Petition No. 2964/2013 which was brought to my attention through In this case, it was observed that sections 4, 5, 6, 7, 9, 10, 11 and 13(2) of the Contempt of Court Act, 2013 has given such protection to journalist and government official in regard to contempt of court matters that they are to be considered contrary to Article 108 of the Constitution and hence invalid. Mr. Justice Quazi Reza-UlHoque and Mr. Justice ABM AltafHossain while delivering their judgment noted that the Constitution has conferred power to the High Court to deal with contempt of court cases against anybody and that the provisions of 2013 Act which were in dispute has curtailed the Supreme Court’s constitutional power. Sections 4-7 of the 2013 provides that innocent publications or distributions, publication of impartial and authentic report, bringing allegations against the presiding judge of a subordinate court and publications of information on on-going proceedings of cases in a chamber or close-door-room with few exceptions are not contempt of court respectively. Government officials are protected from allegation of contempt of court under section 10 in respect of their failure to implement a court order. Furthermore, the court can exempt an accused of contempt of court if he/she can provide satisfactory information in reply to a show cause notice or offers unconditional apology before court – _ftn18.
The provisions in concern do indeed fall contrary to earlier legal practice. For instance, it was stated by Mr. Justice SK Sinha in Advocate RiazUddin Khan v MahmudurRahman – _ftn19 that:
“There are numerous decision of the Apex Courts of India, Pakistan and Bangladesh that truthfulness or factual correctness is not recognised as defence in the law of contempt”.
Such comment appears to contradict with the provision of sections 4 and 5 of the 2013 Act.Sections 6 and 7 of the 2013 Act arguably appears to be contrary to the Appellate Division decision of Advocate RiazUddin Khan case itself. It was stated in Advocate RiazUddin Khan v MahmudurRahman that:
“No person has any right to flout the mandate of the law or the authority of the Court for alleged establishment of law under the cloak of freedom of thought and conscience or freedom of speech and the expression or the freedom of the press guaranteed by Article 39. Such freedom is subject to reasonable restrictions imposed by the law.”
Moreover, the guarantee to freedom of expression does not override the law of Contempt. Therefore, it is arguable that the 2013 Act have accorded considerable protection to the press and government officials from allegations of contempt of court. The High Court Division’s decision is currently stayed pending decision of the Appellate Division in Civil Miscellaneous Petition No. 987/2013.
It may be said in conclusion that although the Contempt of Court Act, 1926 failed to adequately define the law of contempt in Bangladesh, the supplementary laws under the various Bangladeshi legislations and the Constitution played an indispensable role in aiding the courts to implement the law of contempt of court effectively in this country. Although recent reforms have brought positive changes to the law, it also came with numerous problems in regard to protection of the press and government officials from contempt cases. Nevertheless, it remains to be seen how the Appellate Division will decide on this issue when the matters comes to hearing before the Apex Court of Bangladesh.In my opinion, the new Act may have overstepped its limits in protecting the freedom of speech by ignoring the impact it might have on the judicial system of Bangladesh.       [End]