In March 1823, acting Governor General of India John Adam promulgated an ordinance requiring compulsory licensing for all newspapers and periodicals. Six eminent natives including Rammohan Roy and Rabindranath Tagore's grandfather Dwarkanath Tagore filed a petition in the Supreme Court to block this gag attempt. But the court rejected their appeal saying: “India is not an independent country, so the laws and rules consistent with an independent state cannot be applicable in India”. 92 years on, colonial East Bengal is now independent People's Republic of Bangladesh, but the spectre of Adam's Gag law seems to still haunt the media scene of the country. Restrictive regulations and associated practices have been retained and used by successive governments for limiting press freedom which ultimately impinges on media's roles as public watchdog and the torchbearer of democracy.
At the dawn of independence, the country's press enjoyed considerable freedom. But the buoyant mood started to fade with growing state control over press. In 1975, all newspapers, except four owned and managed by the state, were banned. Unfortunately, the brief stint of the BAKSAL regime and the subsequent military rule for more than one and half decades diminished the growth of free press. During the Martial Law regimes, “word, either spoken or written or by signs of visible representation or otherwise criticism” against Martial Law were treated as extreme offences.
The wave of democratisation following the resignation of the military government in 1990 heralded a resurgence of press freedom. During the anti- Ershad movement there had been continuous pressure from the mainstream political parties to reform laws and regulations to ensure press freedom. It was reflected in the Three-Alliance Framework, jointly declared by three major political alliances. Press activists and the civil society were also very active in their demand for such reviews. Immediately after the fall of Ershad, the interim government headed by Justice Shahabuddin Ahmed scrapped the controversial provision of the Printing Presses and Publication Act, 1973, popularly known as the “black law”. Later, the succeeding elected government formed a Law Commission to review restrictive media regulations. But it got little freedom to make any substantial change.
Subsequent history does not present a very encouraging picture, as succeeding governments have been using various media regulations to limit the capacity of press to scrutinise government actions and thereby constraining the growth of a democratic institution like a free press.
Following is a list of media regulations in Bangladesh that need to be reviewed in order to create a free media environment in the country. Considering unique nature of online and new media, here we will limit our discussions to print and electronic media only.
Printing Presses and Publications Act 1973
After independence, the first AL government scrapped Ayub Khan's press ordinance and promulgated the Printing Presses and Publications (Declarations and Registration) Act, 1973. But the Act retained licensing system of the earlier law which required newspapers or periodicals compulsory registration, declaration and permission from the government. This Act tends to limit publication of newspapers and periodicals because the licensing decisions are often made on political considerations as opposed to professional ability.
In 1991, the provision of shutting down newspapers was scrapped from the Act. But recently there has been an attempt from the government to restore it which would authorise district magistrates to cancel declarations of newspapers for publishing anti-state news or news hurting religious sentiments. We apprehend that if this “black law” is reinstated, it could be seriously misused to gag media as it was done during the military regimes.
Despite such negative attributes, the Act gives journalists some legal basis for their profession. But it needs two major reforms. Ambiguous terminologies in Section 20 A of the Act that gives power to declare certain publications forfeited and to issue search warrants for the same needs to be removed, and the provision of imprisonment and newspaper closure should be revoked.
On a different note, recently the government called for separate registration of print media's online editions. Newspaper Owners' Association of Bangladesh (NOAB) has termed this move “irrelevant” and “unjustified” as long as print media are following the Press and Publication Act 1973 and other related media regulations.
Special Powers Act (SPA) 1974
To prohibit prejudicial acts, the SPA makes it a punishable offence for journalists and media houses to publish any prejudicial report. And such "offences" are non-bailable. The ever-widening and fluid definition of "prejudicial acts'' allows considerable scope for abuse. It can prohibit publication of any newspaper containing prejudicial reports, and impose pre-censorship on any publication. Even any true report that offends the ruling authorities might be subjected to the SPA. This Act grants the State extraordinary broad powers of arrest and detention without trial.
In a report submitted to the UN Human Rights Council in 2013, the government stated that "[t]he provisions of Special Powers Act, 1974 relating to the control of media have been withdrawn to make the media free from any form of control". But frequent harassment of journalists by using this law belies the government's claim.
On March 17 of this year, Mizanur Rahman, the Boufal correspondent of Prothom Alo, was arrested and brutally tortured in detention by the police. According to Prothom Alo and other media outlets, Rahman was targeted in retaliation for his reports alleging corruption and abuse of power by local officials. Earlier he had also reported on the mindless comments allegedly made by AL lawmaker ASM Feroz at an event, a report that appeared to have irked the local authorities. In the report, the parliamentarian was quoted as saying, “If anyone wants to present men with any gift, then do not bring any crest. I want cash, only cash. Don't you understand taka? A huge amount is spent for the election." Now the burden of proof passes on the government.
The Penal Code 1860 prescribes punishment for offences that endanger national security and public peace. Journalists often face harassment by way of defamation charges under Sections 500, 501and 502 of this Code. Considering that ruling party defines national security in light of perpetuating its control over state power, this regulation is often misused to protect their interests. Defamation cases are mostly politically motivated, and are used to impede investigation of corruption and irregularities.
In a recent incident, a former minister sued a reporter and a host of Jamuna TV for defaming him. The report titled “Jalabayu Tahobil Nay Chhay” (Misappropriation of Climate Fund), aired in a segment of the channel's show “Investigation 360 Degree”, stated that the minister spent Tk 35 crore only on 200 caged birds under the "Sheikh Russel Aviary and Eco-park" project in Rangunia upazila of Chittagong. Whether this may or may not have been true, but this sort of legal restriction restrains journalists from probing into graft allegations.
Defamation needs to be decriminalised to the extent that it applies to journalists in the spirit of allowing media to act as a public watchdog. In South Asia, Sri Lanka scrapped criminal defamation from its books in 2002, and now India is actively thinking about reviewing its defamation laws to ensure that journalists do not face criminal proceedings as a result of their work.
Code of Criminal Procedure (CrPC)
Section 99 A of this 117 year old Code empowers the government to forfeit newspapers and to issue search warrants for seizing them. The vaguely defined provision regarding 'seditious matter' is a double-edged sword which is mostly misused by the government to thwart any criticism of authority. The penalty for breaking this law is a maximum jail-term of two years or a fine or both. Journalists are common victims of the CrPC. Even if a journalist accused of sedition is ultimately proven not guilty, the process of going through the charge itself is very arduous for any person. The process actually becomes the punishment.
The sedition provision needs to be either updated with clear definition, keeping in mind the current global context or needs to be completely discarded.
Official Secrets Act
This notorious Act has its origin in the English Official Secrets Act 1911. Though it is meant to mainly protect defence and economic interests of the country in practice, it is unmindfully applied to restrict any information unfavourable to the ruling power, non-withstanding whether the information has any impact on national security or economic relations. Journalists are particularly barred from accessing any government information by this loosely defined secrecy Act. The Act also needs to be reformed in the spirit of promoting free flow of information.
Article 39 of the Constitution calls for press freedom but at the same time it endorses “reasonable restrictions” which empowers government officials to control government information. This phrase needs to be clarified with proper details and implications.
The passage of the Right to Information Act in 2009 has made disclosure of information to citizens compulsory for public offices. But implementation of the Act moves at a snail's pace. Journalists are still not enthusiastic about the RTI because collecting information through this process is time consuming. The long list of exceptions in the Act also discourages them.
Information and Communication Technology (ICT) Act
In 2013, the government promulgated the ICT (amendment) ordinance, making amendments to the Information and Communication Technology (ICT) Act- 2006. According to Section 57 of the ordinance, if any person deliberately publishes any material in electronic form that causes deterioration of law and order, prejudices the image of the State or person or hurts religious beliefs, they will be punished with a maximum 14 years and a minimum 7 years of imprisonment. It also stated that the crime is non-bailable. Eminent constitutional expert Dr Shahdeen Malik expressed his concern about this clause, saying that "Section 57 of the ICT law will take the country towards the Medieval Ages". Recently, Probir Sikdar, Editor of online news portal Uttoradhikar 71 News, was sued and arrested under Section 57 of the ICT Act for what police termed “libel” against Minister Khandkar Mosharraf Hossain. Later, he was released on bail, but the case is still going on.
It also seem ridiculous that according to the ICT Act one has to face two years of imprisonment for a report published in hard copy, while for the online version of the same report, they would be sentenced with 7-14 years of rigorous imprisonment.
Draft National Broadcasting Policy
The Ministry of Information still retains full control over broadcast media in the country. Overwhelming bureaucratic regulation has turned the national TV channel, BTV, into government's mouthpiece. In the absence of a comprehensive broadcast policy Private TV channels remain in fear of breaching the vague broadcasting regulations. Lately, a draft broadcast policy was approved in the cabinet in August 2014 without holding an all-round consultation with media professionals and concerned stakeholders. It contains a range of potentially restrictive provisions, including a prohibition on programmes deemed excessively critical of state priorities or those that threaten to national security and sovereignty. Establishment of an independent regulatory commission was proposed to oversee implementation of the broadcast policy. But according to media activists the commission has nominal independence and the Information Ministry still holds the authority to revoke licenses of any broadcast outlet.
With the existence of these restrictive laws governing media, it is difficult to support any contention that the press is free in Bangladesh. The threat of penalties hanging over journalists in connection to their professional duties leads to self-censorship and the loss of information that is important for the society. However, the little amount of freedom guaranteed by media policies is further curbed by repeated and intense pressure from various administrative bodies. Such interferences include unofficial directives on news contents, barring journalists' access to news location, squeezing ad revenue and controlling circulation and subscription of newspapers.
Apart from that, journalists continue to be threatened and attacked by organised crime groups, party activists and Islamist groups. Perpetrators often escape punishment for crimes against journalists because investigations of such crimes generally proceed slowly, if at all. The gruesome murder of journalist couple Sagar-Runi is a stark example in this regard. The case still remains unresolved even after repeated assurances from the government in the last three years.
Unfortunately, very little has been done by governments to protect journalists and media of the country. In 1974, the Bangladesh Press Council was formed. But in the last 41 years, the Council has not taken any bold steps against governmental interference. All of its members are elected by the government, and the government also controls its funding. In 1993, it issued a Code of Conduct (later amended in 2002) for journalists of print media which does not guarantee adequate freedom. Moreover, the Council does not cover broadcast media. Seeing little prospect of freeing the Council from government influence, there have been proposals from media activists to constitute an independent press council in Bangladesh.
The emergence of effective democratic institutions is dependent on the development of an independent media system. Its democratic role of "monitor" and "public informer" is certainly hampered by restrictive media laws. That's why our media laws should strike a balance between the legitimate demands of the state and society on the one hand, and the needs of press freedom and critical public spheres on the other.
In 1971, when the Pakistani Junta apprehended their doom, they targeted intellectuals who had been active in the freedom struggle during this time. They tried to cripple the future of the newborn country by killing these free minds. Now after 44 years of independence, when we see a voice in media being muffled or a person being murdered for using his freedom of and right to speech, our conscience condemns us for our collective failure. But we still hope against hopelessness. We share our martyrs' dream of freedom from all sorts of repression. We are still waiting for a free press.
The writer is Sr. Editorial Assistant at The Daily Star. He can be reached at firstname.lastname@example.org.
1. Abul Mansur Ahmed, "Freedom of the Press and its Constraints: A Study of Press Regulations in Bangladesh, Communication and Culture, York University.