Dr. Mohammad Nazmuzzaman Bhuian is a Professor of Law at the University of Dhaka, and holds a PhD on Media Law from the School of Oriental and African Studies (SOAS), University of London. Law desk has recently talked to him on the issue of press freedom.
Law Desk (LD): Would you please tell us what basically freedom of the press refers to?
Mohammad Nazmuzzaman Bhuian (MNB): Freedom of the press may generally be defined as freedom of publishing one's expression and speech either in print or electronic media without being subject to intimidation or censorship. Therefore, freedom of the press is usually considered as an extended version of freedom of speech and expression. However, article 39 of the Constitution of Bangladesh has separately guaranteed press freedom along with recognising citizen's freedom of thought and conscience vis-à-vis freedom of expression and speech. Though the Constitution of India apparently guarantees more freedom to the press and media compared to other South Asian countries, the Constitution of Bangladesh is one step ahead to that of India which does not exclusively recognise freedom of the press. From the perspective of constitutional law, here lies the uniqueness of press freedom in Bangladesh.
LD: Does this constitutional uniqueness have any significance in practice?
MNB: Definitely, the people of Bangladesh are supposed to enjoy the benefits of such specific constitutional guarantee to right to free press. However, unlike right to freedom of thought and conscience, the Constitution has subjected the right to press freedom to reasonable restrictions. Restrictions imposed upon freedom deserve jurisprudential explanation to clearly perceive the actual meaning of press freedom. Because the sphere of press is no more confined within the limit of print media only; online sphere and social media – what is popularly known as 'new media' – has now a big role to play in disseminating news and views. In other words, press freedom consists of the right to publish views not only in the newspaper, but also in online media.
LD: How do you evaluate the idea of restrictions which is permissible to be imposed upon the press?
MNB: It is true that there is no such concept as absolute freedom since freedom always entails obligations to respect certain boundaries. Therefore, restriction on press freedom is a common phenomenon in every legal system of the world. But, due to the colonial mindset of our power structure and a concomitant poor level of democratic culture, such restrictions often have crossed the boundary of reasonableness. The struggle has therefore always been about what would be reasonable.
In the twenty-first century, however, what appears or would be reasonable is subject to justification and interpretation. But the question is – who has the authority to interpret the term reasonable? In most of the democratic societies, it is mainly the higher judiciary which holds the authority under the Constitution to interpret and judge the reasonableness of any restriction. Though the guarantee in article 39 was upheld by the apex court of Bangladesh on many occasions once a matter reached the court, it usually restrains itself from dealing with the issue of defining or interpreting the term 'reasonable' in case of imposing restrictions. Nevertheless, comments and observations issued by Human Rights Committee, European Court of Human Rights, Supreme Courts of different countries, etc. on the issue of press freedom and associated media law may always guide us in understanding the connotation of the term 'reasonable' from our indigenous context.
LD: Do you think that restrictions imposed under article 39 of our Constitution are in parity with those suggested under article 19 of the International Covenant on Civil and Political Rights (ICCPR)?
MNB: If we compare these two provisions, we will see that our article 39 is not in conformity with the ICCPR. To be more specific, article 39 has listed a bundle of restrictions to be imposed upon press freedom which are not in line with article 19 of the ICCPR. Say, for instance, I don't find any reasonableness in imposing restriction on the ground of friendly relations with foreign countries in this post-cold war era. Therefore, restrictions on certain grounds of colonial origin including incitement to an offence should lose their constitutional endorsement. Another thing is that, we have largely inherited the British colonial laws which were mainly enacted to curb freedom of expression and speech of the colonised citizens and have no value in the present world of human rights.
One can question the reasonableness of section 124A (sedition as an offence against the State) of the Penal Code of 1860, which suggests that “disaffection towards the government” is a punishable offence of sedition. This section was introduced in the Penal Code to punish hatred towards the British colonial administration, completely ignoring the striking difference between a state and a government. In fact, this was influenced by the socio-political context of rising discontent among Indians against military actions during the famine of 1895 and 1896. However, due to the existence of this section in the penal legislation of independent Bangladesh, the press will employ 'self-censorship' while playing its role of criticising the untoward activities of the government. We still fail to understand the distinction between sovereignty of the State and interest of the government. It's true that State will always aim to secure its national interest and sovereignty. In doing so, however, citizen's right to privacy, freedom of expression and press freedom cannot be sacrificed. Rather what we should do is to strike a balance between national security and citizen's right.
LD: How can this balance be maintained?
MNB: It's a common scenario that, the harsher restrictions are seen in those societies where democratic values, rule of law and respect towards human rights are vulnerable. With an excuse of necessity, the State should not abuse restrictions against citizen's interest by way of bringing both preventive measures and remedial measures in the legal framework. Here again comes the judiciary to play its role to secure the balance. In doctrinal contexts, proportionality is frequently used as a mechanism of judicial review to maintain such a balance. Proportionality analysis is actually intended to ensure that fundamental rights are realised to the greatest extent possible in the circumstances given countervailing rights and interests. In my opinion, the term 'reasonable' under article 39 of Bangladesh Constitution also contains within it such an idea of proportionality.
LD: While considering citizen's interest, how do you see responsible journalism to protect press freedom?
MNB: Protecting press freedom and expecting responsible journalism is a reciprocal matter. If state fails to ensure press freedom, partisan politics engulfs professional journalism resulting in the alarming increase of yellow journalism. In this context, one can argue only in favour of maximum press freedom with minimal restrictions, which in turn would encourage responsible journalism. In order to ensure that, the State has the major duty to minimise the discretionary authority of restricting press freedom under the existing laws.
LD: In the context of responsible journalism, how it is important to disclose source while publishing news or views in the press?
MNB: Conventionally, a journalist can exercise the privilege of not disclosing source where from he/she gets information. However, such journalistic privilege is not specifically recognised in law. Therefore, a journalist may be required to identify his sources before courts or tribunals. A journalist should rely on unnamed sources only as an exception and in those rare cases where but for a guarantee of confidentiality of its source, information of significant public interest would remain in dark. On the other hand, the court should order for such disclosure only in the interests of justice or national security, or for the prevention of crime.
However, in the absence of any specific legal provision, the principle of proportionality may be applied in dealing with such issues of disclosure. Thus, the possibility to offend individual's right to privacy does not appreciate to disclose the source unless such a non-disclosure would hamper the greater public interest. For example, the court may only order for such disclosure if it finds that the injury that would occur due to the disclosure of the communications must be greater than the benefit gained by the disclosure for the adequate disposal of the cases in hand.
LD: What would you suggest to ensure the better exercise of press freedom in Bangladesh?
MNB: Firstly, the government should seriously take the lead to not only recognise press freedom under the Constitution, but also to protect the freedom in practice. The government should understand that curtailment of press freedom is one of the factors that makes democracy and rule of law vulnerable. A more secure and sustainable balance between regulating and promoting press freedom needs to be devised and fine-tuned to ensure the fundamental right to freedom of the press in Bangladesh. It is to be noted that mere existence of laws that aim to restrict freedom of the press is sufficient to create an environment where journalists apply self-censorship. Therefore, repeal or amendment of the existing colonial legislation should be the first priority, leading to a reduction in the government's armoury of repressive legislation.
Secondly, our journalists should avoid partisan politics and be honest and courageous in maintaining ethical standards of journalism. Temporary benefit and political favour do not sustain a healthy environment for the press and media. Responsible journalism can be expected and realised only when we understand the perils of politics-motivated-partisan journalism.
LD: Many thanks for your invaluable opinion.
MNB: You're welcome.