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The cassette scam case and the contempt of court

Who will protect freedom of expression?

A. H. MONJURUL KABIR
***In fact those who express their opinions, or impart ideas and information through the medium of a newspaper or any other medium for the dissemination of information enjoy by customary law and convention a degree of confidentiality. The question is how else a disseminator of information is to operate if those who supply him with such information are not assured of protection from identification and/or disclosure. Individuals who release information on wrongdoing -- whistleblowers -- must be protected from any legal, administrative or employment related sanctions for the sake of democracy and rule of law.***
CHIEF Editor of vernacular tabloid daily 'Dainik Manavzamin', Matiur Rahman Chowdhury, was sentenced to one-month's imprisonment for contempt of court. Former president H M Ershad was awarded sentence of six months in jail. A High Court Division Bench comprising Justice Syed Amirul Islam and Justice A K M Shafiuddin gave the verdict on 20 May 2002 in the so-called sensational 'cassette scam case'. The court also fined Publisher of Manavzamin, Mahbuba Chowdhury, Tk 2,000, failing to pay which she is to spend two days in prison. Both Ershad and Motiur will also have to pay Tk 2,000 in fine; otherwise their jail terms will be extended by another 15 days each. The court directed Ershad and others to surrender before the Deputy Commissioner, Dhaka within four weeks. The court, however, relieved three other newspapers -- Dainik Ittefaq, Dainik Sangbad and Dainik Janakantha -and former Judge of the High Court Division Justice Naimuddin Ahmed from the contempt charge.
Background of the case
On 16 September 2000, the daily Manavzamin published a front-page story titled "Ek Rajokio Kelengkarir Khosora (Notes of a Royal Scandal)". After about two months of the said publication, the then Attorney General Mahmudul Islam brought the matter to the notice of the Chief Justice. The Chief Justice referred the matter to a Division Bench of the High Court Division comprising Justice Syed Amirul Islam and Justice A K M Shafiuddin Ahmed. On this basis the court issued a rule of contempt of court against the Manavzamin on 8 October 2000. The Attorney General also moved against four other dailies i.e., Sangbad, Ittefaq, Janakantha, and Jugantar for publishing comments of a former judge of the High Court Division Justice Naimuddin Ahmed, currently a member of Law Commission. His comments, made in a public function, were based on the alleged judicial corruption. Surprisingly the court did not issue any notice against him. Following the petition of the Attorney General, rule and show-cause notices were issued against the other four dailies by the same Division Bench, in some cases as suo moto action of the court. The editors, the publishers and concerned reporters of the five dailies were ordered to be present before the court within a week. At the same time the court also ordered the Manavzamin to produce cassette, transcription, source of the cassette and relevant documents before the court. On 15 November 2000 the court again ordered the Manavzamin to disclose its source of information. Barrister Rokonuddin Mahmud, lawyer for the Manavzamin told the court that his client would produce all relevant documents before the court but denied to divulge the source of confidential information.
Sixteen editors and publishers of national dailies in a joint statement on 16 November 2000 expressed their concern over issuance of rule and show cause notices by a Division Bench of the High Court Division of the Supreme Court. Particularly, the High Court Division's order issued against the daily Manavzamin on 15 November to disclose its source of information of a story relating alleged corruption in the judiciary within two days worried the news professionals and media activists. They observe that the press cannot effectively perform its central function to disseminate information of public importance, if people in possession of information which they conscientiously believe should be brought into the public domain are at risk of being identified and penalized for disclosing it to the press.
Rationale of the judgement
This judgment of the contempt cases, filed against national dailies, has brought the significant issues of freedom of expression in the forefront of public discourse. Some critical questions has also been raised:
1.The court observed that Ershad had tried to influence the judiciary. It is clear that court is convinced of Ershad's malafide intention. In case of the Manavzamin Chief Editor, it observed that an editor or a journalist has the freedom to publish authentic information and the whole truth, not partial truth. But the Manavzamin editor failed to do this. This is, indeed, contradictory. If a person is convicted based on a revelation through a newspaper report or article, how would the publisher and the editor of the newspaper be punished for 'publishing half truth'?
2. It is really surprising that through the judgement the person who committed a crime and a person who blew the whistle are treated at par. This also goes against international human rights standards. Rather, the newspaper Manvzamin -- deserves appreciation for taking the risk and trouble of exposing a judge who failed to maintain the required standard of judicial fairness and integrity.
3.Manavzamin has also been accused of 'sensationalizing the matter'. However, the division bench could not substantiate the point. Publishing a fact, established by the court itself, cannot be termed as 'creating sensation'. In fact, every revelation of truth might create sensation. Should, in that case, truth, be sacrificed at first?
4.What about the judge who resigned to avoid the possible embarrassment at a Supreme Judicial Council session?
The issues of contempt of court and protection of journalists' sources also deserve specific analysis.
Contempt of court by the fourth state?
Freedom of expression and the free flow of information, including free and open debate regarding matters of public interest, even when this involves criticism of
individuals, are of crucial importance in any democratic society. They are key to personal development, dignity and fulfilment of every individual, as well as for the progress and welfare of society, and the enjoyment and other human rights and fundamental freedoms. The role of news media, branded as the fourth estate, is extremely important to the process creating an enabling environment of openness. As rightly pointed out in the statement of sixteen editors and publishers of national dailies, "... a free and independent press ensures citizen's constitutional rights of freedom of speech and freedom of expression. It is also a precondition for promotion and protection of the whole range of people's fundamental rights. Also without a free and independent press, people's right to know cannot be ensured."
Unfortunately, judiciary, the ultimate guarantor of rights, continue to use the offence of contempt of court to gag often substantial critique. Even in England, where the last successful prosecution for scandalising the court was brought in 1931, as David Pannick in his masterpiece 'Judges' asserts, "there can be little doubt the bringing of such prosecutions had an inhibiting effect on newspaper and magazine reporting of judicial affairs generally.the continued existence of the offence, and the memory of successful prosecutions, inhibits journalists, who wrongly suspect that they have a legal obligation to speak respectfully and cautiously when discussing the judiciary."
Another aspect of contempt that deserves special mention is that which operates to protect the fairness of trials and to maintain the authority of the courts. Although there is a public interest in doing this, the rules thereby imposed also impede and ultimately conflict with another public interest, namely freedom of discussion. Freedom of discussion is an important public interest for as Lord Simon stated in A-G v Times Newspapers Ltd., "People cannot adequately influence the decisions, which affect their lives unless they can be adequately informed on facts and arguments relevant to the decisions."
The continuing growth of media and its crucial role in consolidating
democracy calls for greater scrutiny of somewhat restrictive nature of contempt laws. This is not to say that the media should interfere an ongoing trial and thereby may cause a potential harm to the fairness of trials. As Lord Denning MR once said in his celebrated 'Road to Justice',".the press plays a vital part in the administration of justice. It is the watchdog to see that every trial is conducted fairly, openly and above broad ...But the watchdog may sometimes break loose have to be punished for misbehaviour."
In case of Manavzamin, the question of breaking such standard cannot arise at all. It did not make or propagate any fictitious story. Rather it intends to point out the malady within the higher tiers of judiciary.
Journalists' right to professional secrecy
The increasing legal recognition of the confidential relationship between journalists and their sources of information derives from a recognition of the role of the press in ensuring freedom of expression and information and, in particular, as a public watchdog. There is also a growing acknowledgement that protecting confidentiality between journalists and their sources is crucial to the effective exercise of freedom of expression and information, and many jurisdictions provide it with some form of legal recognition. Judge Balogun of the High Court of Lagos State of Nigeria in Oyegbemi v. Attorney General of the Federation & Ors (1982) stated, ".no person or authority (not even a court of law) in Nigeria may require any individual, editor, reporter or other publisher of a newspaper to disclose his source of information of any matter published by that individual or other person or publisher, and the individual or editor, reporter or publisher of a newspaper cannot be guilty of contempt of court for refusing to disclose the source of information contained in the newspaper publication, unless it is established to the satisfaction of the court that disclosure is necessary in the interest of justice, national security, public safety, public order, public morality, welfare of persons or for the purpose of prevention of disorder or crime."
Article 74 (3) of the Mozambique
Constitution states "freedom of the press shall include . Protection of professional independence and confidentiality. Article 30 (1) of the Mozambique Press Law states, "Journalist shall enjoy the right to professional secrecy concerning the origins of the information they publish or transmit, and their silence may not lead to any form of punishment."
In January 1992, the Supreme Court of Norway in Edderkopp case issued a decision upholding the right of journalists to protect their sources, especially concerning matters of public interest and even if they published their information in a book rather than a newspaper or other periodical publication.
The French law on protection of sources and confidential information was substantially revised by the Act of 4 January 1993 on criminal procedure reform. The Act added Article 109(2), which now provides, "Any journalist who appears as a witness concerning information gathered by him in the course of his journalistic activity is free not to disclose its source.
The Sapporo District Court of Japan, sustained by the appellate courts, held that Article 281 of the Code of Civil Procedure protects journalist's privilege as a witness to refuse to divulge information about a source as "an occupational secret" unless the information is necessary for a fair trial.
The Court of Appeal (England and Wales) declined to order disclosure of the sources of a libellous article in Private Eye, which alleged that the publishing magnate Robert Maxwell had financed trips abroad by the leader of the Labour Party in order to be recommended for a peerage. Section 10 of the Contempt of Court Act 1981 prohibits courts of England and Wales from ordering media personnel to disclose confidential sources except when disclosure is "necessary in the interests of justice or national security or for the prevention of disorder or crime"
The Manvzamin had handed over the controversial cassette to the judges and the authenticity of the cassette was proved beyond doubt. Certainly, it is not bound to disclose the source of the cassette. Protecting whistleblowers In fact those who express their opinions, or impart ideas and information through the medium of a newspaper or any other medium for the dissemination of information enjoy by customary law and convention a degree of confidentiality. The question is, how else a disseminator of information is to operate if those who supply him with such information are not assured of protection from identification and/or disclosure. Individuals who release information on wrongdoing -whistleblowers -- must be protected from any legal, administrative or employment related sanctions for the sake of democracy and rule of law.
The culture of secrecy, in fact, breeds and encourages corruption. Newspaper reports on corruption and malpractice directly assist state organs to establish their accountability and transparency before people. As eloquently claimed in the statement of editors and publishers, "By bringing to the notice of our highest state and judicial body, we think we have assisted them in investigating the events and taking precipitous action so that our judiciary is cleansed of any tendency that hamper or damage its prestige and dignity." Frequent issuance of rule and notices for contempt of court against newspapers may be counter productive to the fragile state of democracy in Bangladesh. Jailing an editor and journalist for publishing truth would definitely send a wrong signal to the society and the world that fiction not truth will be appreciated in Bangladesh.
A H Monjurul Kabir is Law Desk Incharge of The Daily Star.