The only legitimate purpose of defamation laws is to protect reputations. At the same time, the practice in many parts of the world is to abuse defamation laws to prevent open public debate and legitimate criticism of wrongdoing by officials. Many countries have laws designed to safeguard the honour of certain objects, including national or religious symbols. Inasmuch as an object, as such, cannot have a reputation, these laws do not serve a legitimate aim. The latest episode that forced two editors of leading national dailies to appear before the court and seek bail last week is a clear testimony of the trend. Warrants of arrests were issued on 11 June against Mahfuz Anam, the editor and publisher of The Daily Star, Motiur Rahman, the editor of the Prothom Alo, and Abdul Jalil, the General Secretary of the main opposition party, the Awami League. The issuance of warrants followed the publication, on 3 June, of a letter written by Abdul Jalil expressing his opinion about the candidacy of a Bangladeshi nominee for Secretary General of the Organisation of Islamic Conference (OIC). The letter carried opinion critical of the nominee, a senior political figure, who in turn filed a complaint before Dhaka Metropolitan Magistrate Court under sections of the Penal Code which provide for up to two years imprisonment for defamation.
Some States including Bangladesh seem to seek to justify defamation laws, particularly those of a criminal nature, on the basis that they protect public interests other than reputations, such as maintaining public order or national security, or friendly relations with other States. Since defamation laws are not carefully and narrowly designed to protect these interests, they fail the necessity part of the test for restrictions on freedom of expression, elaborated in many international standards. In fact, such interests, where legitimate, should be protected by laws specifically devised for that purpose.
The criminalisation of a particular activity implies a clear State interest in controlling the activity and imparts a certain social stigma to it. In recognition of this, international courts have stressed the need for governments to exercise restraint in applying criminal remedies when restricting fundamental rights. In many countries, the protection of one's reputation is treated primarily or exclusively as a private interest and experience shows that criminalising defamatory statements is unnecessary to provide adequate protection for reputations.
In many countries, criminal defamation laws are abused by the powerful to limit criticism and to stifle public debate. The threat of harsh criminal sanctions, especially imprisonment, exerts a profound chilling effect on freedom of expression. Such sanctions clearly cannot be justified, particularly in light of the adequacy of non-criminal sanctions in redressing any harm to individuals' reputations. There is always the potential for abuse of criminal defamation laws, even in countries where in general they are applied in a moderate fashion. The illegitimacy of the use of criminal defamation laws to maintain public order, or to protect other public interests, has already been noted. For these reasons, criminal defamation laws should be repealed.
At the same time, it is recognised that in many countries criminal defamation laws are still the primary means of addressing unwarranted attacks on reputation. To minimise the potential for abuse or unwarranted restrictions on freedom of expression in practice, it is essential that immediate steps be taken to ensure that these laws conform to the constitutional guarantees and international standards. A basic principle of criminal law, namely the presumption of innocence, requires the party bringing a criminal case to prove all material elements of the offence. In relation to defamation, the falsity of the statement and an appropriate degree of mental culpability are material elements. The frequent abuse of criminal defamation laws by public officials, including through the use of State resources to bring cases, along with the fundamentally personal nature of protection of one's reputation, is the basis for the third condition.

Law Watch is a centre for studies on human rights law<lawwatch2001@yahoo.com>. Source of information: ARTICLE 19, London