Freedom of expression and Bangladesh constitution

1. Bangladesh
constitution and
freedom of
expression
Prepared By
Shah Arafat Ayatullah
southeast university

2. “Hey Hyena, you have destroyed the country, now
you are trying to destroy our BUET… We the general
students are the hunters. We will shoot in your
head…and hang your head at the gate of BUET to
avoid further aggression of hyenas.”
Mr. Hafizur Rahman

3. Synopsis
1. Introduction
2. Definition
3. Freedom of speech Vs. Expression
4. Idea developed the Freedom of Expression
5. Freedom of Speech and Expression in the Constitution of
Bangladesh
6. Limitations on right to Freedom of Expression
7. Freedom of Expression and some Laws
8. Media and online freedoms
9. Case laws
10. Recommendations
11. Conclusion

4. Introduction:
• Absolute freedom is what we all desire. Likewise we all want to
enjoy absolute freedom of speech and self expression. Therefore it
is not surprising that freedom of speech and expression has been
granted to us even by law.
• Freedom of speech and expression has been recognized as a
fundamental right in Article 39 of constitution of Bangladesh
• All the democratic countries of the world provide similar right to
their respective citizens for an unhindered expression of views and
opinions.
• In the judgment of the case Maneka Gandhi v. Union of India the
Supreme Court held that the freedom of speech and expression has
no geographical limitation and it carries with it the right of a citizen
to gather information and to exchange thought with others not only
in India but abroad also.

5. Definition
• The term freedom means the right to do or say what anyone wants without any
person stopping him. And expression means things that people say, write or do in
order to show their feelings, opinions and ideas.
• By considering the preceding meanings, it can be said that freedom of expression
means that the right to say, write or do in order to show feelings without anyone’s
restriction on it.
• Again “Expression” can include having views or opinions, speaking aloud,
publishing articles or books or leaflets, television or radio broadcasting, producing
works of art, communication through the internet, some forms of commercial
information and many other activities.
• Freedom of expression is the freedom to communicate ideas without restraint,
whether orally or in print or by any other means of communication
• Freedom of expression-
i. Right to have opinion
ii. Right to express them freely
iii. Though any medium,writing,plaint,television,radio,internet etc.
iv. Restricted to the extent of not adversely affecting freedom of others to live with
peace and harmony.

6. Freedom of speech Vs. Expression
• The words ‘speech’ and ‘expression’ are often
used interchangeably to serve the same legal
purpose but in technical terms they are not the
same.
• Freedom of expression is a much broader
concept and it also covers the right to freedom of
speech.
• Literally speech means to express one’s thoughts
and feelings in the form of verbally spoken words
only, whereas expression stands for all form of
communication of thoughts and feelings

7. Idea developed the Freedom of
Expression
Concepts of freedom of speech and expression can be found in early human rights documents like –
I. Magna Carta of 1215,
II. England’s Bill of Rights 1689,
III. the Declaration of the Rights of Man and of the Citizen,
IV. adopted during the French Revolution in 1789.
Today the idea of freedom of expression has been recognized in many international, regional and
national laws of different States. International laws like Universal Declaration of Human Rights
(UDHR) adopted in 1948 mentioned about freedom of opinion and expression.
• Furthermore freedom of expression has also been incorporated in some regional laws like-
1. article 10 of the European Convention on Human Rights,
2. article 13 of the American Convention on Human Rights and
3. article 9 of the African Charter on Human and Peoples' Rights.
• National law like constitutional laws of different states protects the freedom of speech and
expression. As for example article 39(2) (a) of the Constitution of Peoples Republic of Bangladesh
protects the right to freedom of speech and expression.
• Like as article 19(1) (a) of the Constitution of India,
• article 19 of the Constitution of the Islamic Republic of Pakistan,
• article 14(1) (a) of the Sri Lankan Constitution and almost all the constitution of different states
over the world protects the freedom of speech and expression.

8. Freedom of Speech and Expression in
the Constitution of Bangladesh:
• The question of reasonableness behind the restriction imposed over the freedom
of speech and expression is a matter of great discussion and sometimes it
becomes a relative matter based on circumstances.
• In determining the reasonableness of a restriction upon the freedom of speech
and expression, a reasonable balance must be struck between the need for the
freedom in a democratic system of government provided for by the Constitution
and the social interest in the prevention of disorder and anarchy.
• As for example though a person is under an order of detention, he continues to
possess his fundamental right to read but he may be prevented from reading a
literature which is prejudicial to the security of the state or any other social
interest mentioned in the restriction clause as envisaged in the provision relating
to freedom of speech and expression. The restriction is to be imposed by law and
when discretion is conferred on any authority, the law should provide sufficient
guidelines for the exercise of the discretion.
• If the law is vague or arbitrary, or is disproportionate to the mischief sought to be
remedied or the restriction has no rational connection with the permissible
grounds of restriction, or there is no procedural safeguard against an arbitrary
exercise of the power under the law, the restriction imposed will be
unconstitutional.

9. Freedom of Speech and Expression in
the Constitution of Bangladesh(cont.)
• Article 39 of the Constitution of People’s Republic of Bangladesh contains
the right of freedom of speech and expression in the title of "Freedom of
thought and conscience, and of speech". It is stated in the said article that,
1. Freedom of thought and conscience is guaranteed.
2. Subject to any reasonable restrictions imposed by law in the interests of
the security of the State, friendly relations with foreign states, public
order, decency or morality, or in relation to contempt of court,
defamation or incitement to an offence–
• The right of every citizen to freedom of speech and expression; and
Freedom of the press, are guaranteed.
• From the above article it becomes clear that the right of freedom of
speech and expression has been guaranteed by the constitution of
Bangladesh but it has been made subject to reasonable restrictions.
• The Constitution of the People’s Republic of Bangladesh, Article 39

10. Limitations on right to Freedom of
Expression
• Racial hatered
• The official secrete Act
• Obscenity
• Members of the security service
• Blasphemy
• Other secrecy offences and whistle blowing
• Defamation
• indecency

11. Freedom of Expression and some
Laws
Name of the laws provisions
Penal code (1860) u/s- 171(G) ,292,293,499,500,501 & 502
Code of criminal procedure (1898) u/s-99(A)
The post office act (1869) u/s-27B
•The dramatic performance act (1876)
•The foreign relations act (1932)
•Right to information act (2009)
go through the Act
The children act (1974) u/s-2
Official secret act (1923) u/s-3
Contempt of court (1926)
ICT act (2006) u/s-57

12. Media and online freedoms
• The constitution guarantees freedom of expression, with some restrictions
for “public order” concerns, and its media are vibrant and diverse.
However, not only does the government show some intolerance of media
criticism, but journalists continue to be threatened and attacked with
impunity by political and religious groups. This in turn leads to self-
censorship on some religious and political topics.
• In August 2015, Probir Sikdar, a veteran journalist, was arrested for
“tarnishing the image” of a government minister, reportedly after he
publicly said that he had been threated.
• In December 2014 the Bangladesh Telecom regulatory authority proposed
that Google and Facebook should implement a locally run “Admin Panel”
to control the social media inside Bangladesh. This proposal followed a
refusal by both internet companies to release information about certain
user accounts.

13. Restrictions over freedom of speech and expression

14. Restrictions over freedom of speech
and expression
• Article 39(2) of the Constitution of the People’s Republic of
Bangladesh imposes certain restrictions over the freedom
of speech and expression.
• Also Article 70 puts a barrier on the exercise of freedom of
vote of the Members of Parliament against his party
decision. The provisions of Article 70 of the Constitution of
Bangladesh are pushing the democracy in a back seat.
• Section 57 of The Information and Communication
Technology (ICT) (Amendment) Act, 2013 Ordinance as it
might lead to further arrests and harassment of political
rights defenders. Given the tendency to infringe upon
people's right to information, there is a considerable
possibility that the law may be misused in the name of
preventing cyber-crimes.

15. Case laws no.1
Mr. Muhammad Ruhul Amin Khandaker,
• a teacher of the Institute of Information Technology of the Jahangirnagar
University, wrote a Facebook post in his personal Facebook wall when he was
studying in Australia.
• He wrote, “The death of the five including Tareque and Mishuk Munier is a result
of issuing driving licences without test. Everyone dies, why not Hasina?”
• This post was published after five people died in a road traffic accident, including
a celebrity filmmaker and a journalist, in August 2011. A pro-government
newspaper published Khandaker’s post. On 18 August 2011, a High Court Division
Bench issued a suo moto order asking Khandaker to appear before the Bench. The
Court termed Khandaker’s Facebook post a “derogatory comment”.
• On 12 December, the Court further ordered him to appear on 2 January 2012.
Khandakar, being on study leave in Australia, did not appear before the Court
when ordered. On 4 January 2012, in his absence, the Court punished him with a
six months imprisonment for “disregarding the Court’s order”. This case stands out
because Bangladesh’s High Court does not take suo moto action against arbitrary
deprivation of life while enforced disappearance is on the rise in the country;
however, the same Court takes suo moto actions against one individual’s opinion
on a social networking site.

16. Recommendations
Every person ought to understand that the religious and cultural traditions of
others should be respected
Article 39 (2) of the Constitution must not be used as an excuse to offend the
government interests and as a tool of opposition repression.
For the development of proper parliamentary democracy, Parliament must lose its
image of being the ruling party's backyard.
The parliament should be a place for broader democratic debate; we hope that
parliament will soon consider amending article 70 of the constitution.
My recommendation is article 70 constitution should be amended but not totally
abolished. Article 70 can applicable in the case of Non-confidence Motion and
Money Bill.
It should be ensured that MPs will never lose their membership in parliament
based on their voting records because it seriously restricts practice of freedom of
expression in a high level of democratic institution.
In the case of section 57 of ICT Act, it should be revoked as it is contradictory to
people's fundamental rights.(a draft is already made in this regard)

17. Conclusion
• Freedom of thought and conscience, and of speech is the
reflection of people's wishes and desires .The government
should think very carefully before making any fundamental
changes in it.
• All the rights and provisions should be given effect to by the
courts by harmonious interpretation if necessary.
• The Constitution guarantees rights of freedom of thought,
conscience and of speech to the citizens and different
professional groups, but limits the enjoyment of rights by
security of states, welfare of society and rights of others.
• A check and balance system has been provided by the
Constitution, now state machinery should ensure smooth
exercise of citizens' rights.

18. Any question ?