Published in The Daily Star on Aug. 19 :: 

CONTROVERSIES evolving around the newly formulated National Broadcast Policy 2014 have become the issue of rejection and justification both from media outlets and government side. Being one of the highly contentious policies adopted by government, this policy is facing a widespread criticism by media stakeholders, rights groups and political parties. Undoubtedly, the policy has a practical implication in the area of ‘freedom of thought and conscience, and of speech’ guaranteed under Article 39 of the Constitution of the People’s Republic of Bangladesh and other international human rights instruments such as the Universal Declaration of Human Rights (UDHR), and the International Covenant on Civil and Political Rights (ICCPR).

In several occasions, Minister of Information claimed that during the drafting of this policy a number of civil-society and human rights entities such as The Association of Television Channel Owners (ATCO), Transparency International Bangladesh (TIB), Article 19 etc. worked on and favored the policy at its current condition. However, TIB at a recent press conference vehemently expressed the concern and criticised several provisions of the policy alleging that the policy has been projected to control the e-media through curbing its freedom of expression. (The Daily Star: August 15, 2014). Such a contradictory position of Ministry of Information and TIB or other organizations needs to be clarified for ensuring accountability and betterment of democratic norms and practices. Even the claim of the Minister of Information to treat the policy as the guiding principles for enacting future broadcast law is seriously questionable and also a threat for the whole broadcast industry. Why? Let’s explore these perspectives here.

As we know, while drafting the Constitution of Bangladesh in 1972 only the ‘freedom of press’ was categorically ensured in Article 39. However, in a digitalised world today, the popularity of broadcast and e-media has got momentum appreciation for ensuring easy and speedy flow of information and knowledge to the people. Given this situation, there is no specific mention of freedom of broadcast or e-media in the Constitution. However, it would not be wrong to propose that the liberty of broadcast media is implicit in the ‘freedom of thought and conscience, and of speech’ clause in the Constitution. Till now, the broadcast media mainly television channels and radio stations have been running their business obtaining conditional license from the government.

The simple but legally important question is whether the policy is infringing the freedom of broadcast media that is implicit in Article 39 of the Constitution. Until a law or policy intends to curb the freedom of broadcast media on the ground of telecasting any anti-state and anti-public interest statement, such law or policy cannot fall in the reservation clause under Article 39(2). Relying on Brij Bhushan and another v State of Delhi (1950) AIR (SC) 576, it is reasonable to assert that the liberty of broadcast media consists in laying no ‘previous restriction’ upon broadcasting. Obviously, every free man has an undoubted right to say or telecast what sentiments he or she pleases before the public; to forbid this is to destroy the freedom of the media absolutely and illegally.

Article 25 of the Constitution provides for promotion of international peace, security and solidarity between Bangladesh and ‘other states’; while the policy itself classifies the term ‘other states’ into two other terms, namely the ‘foreign state’ and ‘friendly foreign states’. Such a classification is not at par with constitutional provision. In international law, a state can intend to or not to maintain any sort of international relations with any foreign states; but it is presumed that each state has friendly relations with other states. States today have the utmost responsibility to promote international brotherhood in a globalised world through ensuring fundamental human rights such as freedom of expression and others.

However, the policy makes a space for doubting that it could be used against broadcast media and this media would face the hurdle of restriction in airing the true story of unfair practices exercised against Bangladesh by the ‘friendly foreign countries’. Inhumane incidents like border killing or constructing less eco-friendly plants/ projects would not be televised then. It is clear that the policy has extra-sensitivity about reporting on friendly states. Such a forewarning validates the popular public perception about its overt reliance on our powerful neighbor.

The policy has undermined the status of indigenous community by terming them ‘ethnic minority’, and even the policy specifically mandates for flourishing only the mainstream Bangalee culture, history and tradition. The policy has an apparent tendency to stay away from nourishing indigenous culture and tradition.

This Broadcast policy is completely silent about the local DVD television channels based business which mostly telecast pirated Hollywood and Bollywood movies and entertainment programs. These channels are partly responsible for cultural intrusion and also contravene the intellectual property rights of film-makers or program producers in most cases.

The provision that the Ministry of Information will make final decisions on stuffs to be aired until a broadcast law and commission are formed has raised enormous concerns. Speaking in favor of rights and liberty, the policy is neither expected to be a witch-hunt against freedom of media nor to be a campaign to curtail the democratic rights of citizens. Much debate is going on about privacy of individual on the one hand and the national security on the other. An authority like the Broadcast Commission must be set up and it would draw the line between what is acceptable in a civilised society and what is not with regard to broadcast industry. Instead of establishing a commission the government unfortunately came up with this policy after bestowing the Ministry of Information with the power to control broadcast media. In the absence of a clear explanation from the Ministry on what it would particularly do with regard to broadcast industry, the fear that the government or any special quarter might misuse it being able to take action against any media outlet, on various pretexts is reasonable.  

To sum up, we remember once Nelson Mandela quoted, “a critical, independent and investigative media is the lifeblood of any democracy”. We do not need to be sage to understand that the media control can lead to catastrophic consequences to any democratic stewardship. Through the formulation of this policy the government has regressively acted upon media and denied the fact that without debate, without criticism, no administration and no country can succeed – and no republic can survive at all.

The writer is an LLM student at the University of Dhaka.

Source: http://www.thedailystar.net/curbing-freedom-of-expression-37640