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June 27, 2004

Wrong news report vis-a-vis contempt of court

Justice Mohammad Gholam Rabbani

It happened in November 1960 long before the independence of Bangladesh. Sheikh Mujibur Rahman was convicted on a false charge of corruption when he was a minister. Preferred an appeal in the Dhaka High Court. His advocate Abdus Salam Khan then moved an application for expedite hearing of the appeal before a Division Bench, but the senior judge felt embarrassed to hear the appeal. The Chief Justice sent the record to another Division Bench. This time both the judges felt embarrassed.

Khan then moved the application before the chief justice who directed the Bench Clerk to place the application in his chamber for order. But Khan got the impression that the chief justice had allowed the application and he reported accordingly to the press. On the next day four daily national news papers published the news.

The chief justice issued rule against those newspapers for contempt of court. All appeared and expressed their unconditional apology stating that advocate Khan was their source. Thereafter rule was also issued against Khan.

Rules against the newspapers were disposed accepting their apologies with the warning that they should be careful in future while reporting the matters. But the rule against Khan was disposed of with adverse remark, "So the explanation submitted by Salam, we regret, we are unable to accept as satisfactory one nor at the same time we say that he deliberately caused a wrong thing reported. There is some confusion somewhere." (Ref: PLD 1963 Dac 8).

The said report in the newspapers did not cause any adverse impression on the public, yet it was held as contemptuous simply because it was wrong. But in similar cases the opinion of the judges of the Federal Supreme Court of the United States of America is totally different and liberal. There criterion for contempt of court is not that the news report is simply wrong, but it has failed to pass the "clear and present danger test."

A newspaper named "Pennckemp" in Florida State wrote in its editorial that a Judge had dismissed a rape case on the ground that the charge against the accused persons were not framed properly and the courts in Florida were intentionally releasing the criminals on technical and trifling grounds. The editor was convicted by the State Supreme Court on the ground that the statement in the editorial was wrong because after dismissing the rape case, the Judge on the next date framed proper charges against the accused persons.

On appeal the Federal Supreme Court held that the finding of fact of the State Court was correct, but acquitted the editor holding," the factual misstatements and the editorial comment was not such a clear and present danger as to impair the effectiveness or independence of the State Courts and their Judges." Ref: (1904) 328 US 331.

Justice Mohammad Gholam Rabbani is a Retired Judge of Appellate Division.