Mustafizur Rahman and Shahiduzzaman
The government considers enactment of a law on the contempt of court making provisions for no punishment for contempt that does not impede the normal process of justice dispensation.
The law ministry and the cabinet division finalised the draft of the Contempt of Court Bill 2011 and the law minister, Shafique Ahmed, approved the bill in the past week. The bill will now be placed in the cabinet for approval, ministry officials said.
The bill is likely to be placed in the cabinet meeting soon, said sources in the cabinet division.
Once enacted, the bill will repeal the Contempt of Court Act 1926, which has become obsolete.
The bill, however, proposes similar provisions, stipulated in the Contempt of Court Ordinance 2008, promulgated by the immediate-past military-controlled interim regime on May 25, 2008, which was declared illegal by the High Court on July 24, 2008.
The bill defines contempt of court as any wilful act, statement or expression by words or visible signs that may be considered a violation of any verdict, decree, order, writ or warrant issued by a court, or that may undermine any court, or may obstruct the process of justice.
Slander or libel of a court and personal criticism of a judge while performing judicial functions will also constitute the contempt of court, the bill says.
The bill detailed 13 activities that would not constitute contempt.
According to the bill, publication of any accurate information, comment or news on normal proceedings and functioning of the court or on any running proceedings of a court will not amount to contempt.
It says that any statement made by any person, aggrieved by personal attitude of a judge or any member of the family of a judge, in an application to the government or any court seeking disciplinary proceedings against the judge in good faith and in restrained language will also not constitute contempt.
The expression 'aggrieved by personal attitude of a judge or any member of the family of a judge', however, was not in the ordinance.
Publication of any information, comment or news regarding the personal conduct of judges in a matter not connected to the performance of their judicial functions will also not constitute contempt, the bill says.
Any constructive criticism of a judgement, be it a final verdict or in case an appeal against the judgement is pending, will also not constitute contempt.
The bill also says that any comment or publication of any news item on any matter having public importance in public interest, if it is true, will also not constitute contempt.
It also says that any comment or publication of any news items on corruption, irregularity, incompetence and ignorance of judges, in connection with their judicial functions, will not constitute contempt.
Publishing or airing any comment, analysis, statement or quotation made in the parliament regarding a judge or the judiciary or any open discussion on such matters will also not constitute contempt, the bill says. This provision was not in the ordinance.
It says that no person can be charged with contempt for refusing to meet any demand made by judge which the judge is not lawfully entitled to.
The bill also says that 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 proceeding will be drawn against the public servant.
The public servant, however, needs to show written communications with the controlling authority to prove the efforts for the implementation of the court edicts, the bill says. This proviso was not in the ordinance.
The bill also says that any violation of any order, directive or observation passed by a judge or a court, either in any matter not related to running proceedings of the court or in the administrative or other capacity, will also not constitute contempt.
It, however, says the publication of information on any proceedings of a court, which sits in camera on a matter related to public order or security of the state, and on any confidential act, invention or discovery, which is under trial, will constitute contempt of court.
A person could be handed a maximum six months of simple imprisonment or be fined Tk 2,000 or both for contempt of court, the bill says.
If the bill is enacted, no contemners will be punished if they can prove that they have not caused any practical interference in the normal process of dispensation of justice.
It will also make room for contemners to tender unqualified or unconditional apologies in court at any stage of the trial.
According to the bill, a proceeding for the contempt of court needs to be drawn within three months of the commission of the offence and the trial must be completed in six months from the date of the drawing of the proceedings. No court will punish contemners after the expiry of the stipulated timeframe for the trial.
Any proceedings on contempt will be initiated by issuance of a rule asking for explanation.
If the court, after a preliminary hearing following the appearance of the alleged contemner in person or through a lawyer, thinks the more hearing is needed for the ends of justice, a date will be set for the framing of charges, the bill says.
No public servants will be ordered for their personal appearance in court for contempt proceedings relating to their official functions. They will rather be allowed to explain their positions through lawyers, the bill says
The court, however, will have the power to order the contemners to appear in court if it thinks that the contemners should be given personal hearing for the ends of justice.
The bill also says the president may, if he thinks lawful in the exercise of his power under Article 49 of the constitution, grant pardons, reprieves and respites and remit, suspend or commute any sentence passed by any court on charges of contempt against any public servants in relation with their duties or against any person for constructive criticism, analysis or opinion through print or electronic media.
In the face of a longstanding demand from a cross-section of society, the BNP-led alliance government placed the Contempt of Court Bill in the parliament on May 2, 2006 proposing similar provisions, which were later stipulated in the 2008 ordinance.
The bill, however, was not passed as the then government had backtracked on some provisions, which were criticised by a section of the press as favouring government officials.
The High Court bench of Justice ABM Khairul Haque, now the chief justice, and Justice M Abu Tariq on July 24, 2008 declared the 2008 ordinance illegal and void.
The government had not appealed against the verdict.
In the verdict, the High Court had observed that the ordinance had run counter to the fundamental spirit of the constitution, curbed the freedom of the judiciary and belittled the Supreme Court.
As for provisions in the ordinance which gave the president the power to waive punishment for contempt of courts and exempt public servants from personal appearance during proceedings in such cases and from liability of trial after their retirement, the court observed that the provisions had given special benefits to public servants and thus had violated the right to get equal protection of law as guaranteed by the constitution.
Terming the ordinance an attempt to hamper the inherent power of the judiciary, the court said it had jeopardised the rule of law.
Asked whether the enactment of a law stipulating the similar provisions would violate the High Court verdict, the law minister in the past week told New Age that some new stipulations with some modifications of the earlier provisions were proposed in the bill so that the new law could not contradict the verdict.
Source: New Age
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