Saturday, January 17, 2015

50 signature statement proceedings

The International Crimes Tribunal-2 has issued a number of orders relating to a statement given by 49 Bangladeshis (it was originally 50, but one person removed her name, most of whom live in Bangladesh) which commented on a judgement given earlier by the tribunal involving contempt of court. 

Most recently the Tribunal has asked the 49 people "to explain the contents of the ‘statement’ they allegedly made and their conduct."

The sequence of events and the links to the orders involving 'the statement' are set out below

1. On 2nd December, the International Crimes Tribunal published its judgement on the contempt proceedings involving three articles on the blog.
      - To see an analysis of this judgement, click here 
      - Statement by English Pen  
      - Statement by Reporters without Borders  
      - Statement by HRW, Amnesty International, International Commission or Jurists           
      - Statement by South Asian journalists, writers, historians and activists from South Asia
2. On 19 December, a statement was issued by 50 Bangladeshis.
3. On 23 December, the New York Times published an editorial

50 signature statement - signatories asked to explain

Following its order on 31 December 2014, seeking addresses of those who put their names to a statement reported in the media, the International Crimes Tribunal  on 14 January 2015 passed an order on 49 of these people "to explain the contents of the ‘statement’ they allegedly made and their conduct."

The order is set out below (see in particular paras 10, 12, and 13). Please note that the numbering of paragraphs matches the numbering in the original order.

In the matter of ‘statement’ made by 49 citizens on Tribunal’s order convicting David Bergman for contempt]
Order No.04

Dated 14.1.2015

Dr. Shahdeen Malik, Advocate, Bangladesh Supreme Court [one of makers to the 'statement ' in question], in compliance with Tribunal's earlier order has submitted today the address of the 49 citizens the makers to the 'statement'. We have seen it as placed by the Registrar.

Now the record is taken up for order.

1. The Tribunal taking into its notice the news item titled 'Concern of 50 citizens over Bergman's punishment' published in the Daily Prothom Alo, 20 December 2014, page 2 criticizing on the order dated 02 December 2013 punishing David Bergman a foreign national who has been working in Bangladesh as a journalist for the offence of contempt under section 11(4) of the International Crimes (Tribunals) Act 1973 asked the Editor, the Daily Prothom Alo for furnishing the signed copy of the text of ‘statement’.

50 signature statement - addresses sought

Following its order on 28 December, in which the tribunal raised concerns about a statement signed by 50 Bangladeshis, it passed another order asking that addresses of the signatories be given to the Tribunal.

The order states: "For the purpose of effective disposal of the matter in hand we deem it expedient to have the communicating address of all the signatories … "

A copy of the order is set out below
In compliance to our order dated 28.12.2014 the Editor of the Daily Prothom Alo has submitted the unsigned copy of "Statement" to the Registrar of the Tribunal which has been placed before us. 
We have seen and perused the unsigned copy of the "Statement" published in the Daily Prothom Alo on 20.12.2014 as a news item under the title 'Concern of 50 citizens over Bergman's punishment'
The Editor, the Daily Prothom Alo in his correspondence states-
"On 18.12.2014 we received the said statement of 50 citizens [Annexure-1] through an email from Hana Shams Ahmed, a writer and activist and one of the makers to the 'Statement'. After receiving the statement we cross-checked & verified the authenticity of the 'statement' and published the news on December 20,2014."
The correspondence also states that later on, Khushi Kabir, one of the 50 citizens as making the statement, wrote a letter requesting Prothom Alo to retract her name from the 'Statement'.

Order on Prothom Alo - 50 signature statement report

On 28 December, 2014, the International Crimes Tribunal-2 passed a suo moto order on a news items in the Daily Prothom Alo, the country's biggest newspaper, and an editorial in the New York Times.

The article in Prothom Alo reported on a statement issued by 50 citizens concerned with the judgement passed by the International Crimes Tribunal concerning articles on this blog. The editorial in the New York Times was on the same subject.

The order criticizes the New York Times editorial, and states: 
We are surprised to note that the Editorial Board of The New York Times a renowned international daily can make comment “If justice is truly what the International Crimes Tribunal seeks, it should immediately overturn Mr. Bergman’s sentence and Conviction”. We fail to understand how a daily news paper of international repute asks a court of law of a sovereign country by saying-- ‘it [Tribunal] should immediately overturn Mr. Bergman’s sentence’. 
The order however does not pass any direction on the NYT.

In relation to the Prothom Alo report, the order states:
in order to dispel misconception and since the Tribunal is obliged to protect its jurisdiction and authority, we indispensably need to know-
(i) Whether the statement [published in the Daily Prothom Alo, 20 December 2014, page 2] has been made in the interest of public and
(ii) On the basis of which analysis the signatories have made such statement titled ''50 citizens express concern over Bergman's punishment'. 
The order then goes onto the paper to submit a 'copy of the full text of the statement so made and signed by 50 citizens to the Tribunal

Thursday, December 11, 2014

Index of analysis on contempt judgement against blog

Here is the index of articles analysing the recent Tribunal judgment dealing with contempt involving three articles on this blog.

Below the index, is a summary of the analysis

In good faith: articles, statements in support 
 Judgment Analysis

1. On a third party's right to initiate proceedings long after publication

2. On the 'settled history' of the 1971 war dead (first article)

3. On 'scurrilous' analysis, in absentia trials (second article)

4. On 'adjudicators or truth' and 'mantras', numbers of 1971 deaths (3rd article)

5. On 'unholy alliances' and 'mouthpieces', the tribunal's view of me
6. On alleged perversity, slander and the 1971 war
7. On 'swinish whites-skinned judges', “pigs”, and “judicial scumbags'

8. On attempt to censorship on 'settled history'
The full judgement can be accessed here

It should be noted, at para 44 of this judgement, the Tribunal explicitly states that 'We always welcome post-verdict criticism',  and and at para 73, 'We of course do not disagree that even post judgment criticisms is permissible,' so I make those comments in that context.

Below is a summary of the key points made in the analysis set out out in the 8 articles listed above

The judgment did not refer or engage with a number of our arguments made in court about why the case should not proceed. These arguments were:
- direct parties of the tribunal, including the head of the investigation agency and senior prosecutors, had been made aware of the articles immediately on publication, but did not take any action, and therefore it was inappropriate for a third party, years later to initiate action against the articles.
- A Delhi High court case (the only case in South Asia dealing with this point) held that the date of publication of text on the internet, is the date that the article was first published on the internet, and not the date when a person first accesses the article. So time started over two years ago for the first article, and over one year fro the other two articles.
- there is no legal precedent in Bangladesh or in any other common law jurisdiction for such proceedings involving alleged 'scandalization of a court' to take place a year/two years after publication of an article.
- that the International Crimes (Tribunal) Act 1973 does not permit third parties to make an application or initiate prosecutions, and in fact only permits the investigation agency/prosecutors to do so.

In relation to all three articles

The judgement did not find a single fact or legal point of analysis written in these articles to be inaccurate. It is very unusual for there to be a conviction for contempt, involving alleged 'scandalisation of the court', where no factual or legal inaccuracy is found by the court.

On the 1st and 3rd articles about 1971 numbers

The judgement states that it is "settled to the nation that 3 millions of people" died, but it does not set out any evidential or research support for that conclusion. And since the judgement does acknowledge that there is 'differing information' on the subject, it is not clear from the judgement how the court came to the conclusion that it can be a 'settled' historical matter. Moreover, the tribunal was dealing with a criminal case of contempt, and not making an assessment of what is and what is not a "settled matter" of history.

The judgement does not set out its grounds for claiming that these articles have fanned 'the flame of grave disgrace in the mind of the nation', 'has obviously caused severe hurt to the emotion of the nation', 'disgraces and demeans nation’s wishes and holy emotion', and 'has been gravely disrespectful to the nation'. It is unclear how the judges have assessed or read the sentiments of the nation in this way, and how someone/everyone reading the blog would feel these things.

On the first article about 1971 numbers 
Whilst the proceedings in this tribunal were on-going (in that the article was commenting on an indictment) and were technically 'sub judice', the Tribunal itself states in the judgement that a person 'is not debarred in initiating discussion on a matter which may be fairly regarded as a matter of public interest'.  Moreover, the matter that was being discussed had no relevance at all to the issues before the court. And case law clearly shows that commenting on sub judice matters is only a matter of concern if it 'substantially interfered' with the due course of justice.

In relation to the 3rd articles, on 1971 numbers

It is difficult to see how the particular wording in this article (and in particular the word "mantra" which the court focused on) can be described as 'obnoxious', 'scurrilous', 'extremely impolite', 'derogatory, unfounded' or that it suggests a 'malignant' attitude and mindset, was done 'malicious[ly]', done 'consciously to malign and scandalize' the Tribunals, was 'gravely contemptible', 'extremely disrespectful' and involved my 'vomit[ing] of ill-intent'

In relation to the second article about 'in absentia' proceedings

The judgement claims that I "question the validity of holding trial in absentia". However, that is not the case - the article only questions the Tribunal's reasoning about why in absentia trials in Bangladesh complies with international standards.

The judgement says that 'We always welcome post-verdict criticism' but then terms, without any clear basis, the mild criticism in this article (which had suggested that the judgment's explanation was 'misleading') as a "futile attempt intending to identify the ‘ignorance of the Tribunal’ by blatantly discarding its authority", "questions the authority and jurisdiction of the Tribunal" and "it clearly intended to lower down and demean Tribunal’s authority and ability, and "tends to shake the public confidence upon the judicial machinery."

Whatever view one has of the word 'misleading', it is difficult to see how it can be termed 'scurrilous' or 'scandalous', particularly when one of the dictionary definitions of the word, 'misleading' is simply 'inaccurate'.

Descriptions of me 

There is simply no evidence put before the Tribunal by the applicant, or set out in the judgement by the Tribunal, or indeed that exists at all, that support the Tribunal's claims that:
-  an "unholy organised domestic and international attempt to question the judicial process of the Tribunal" has been established and that I have simply endorsed such ‘organised’ ill and futile endeavor", or that
- I have "acted as a mere ‘mouthpiece’ of the quarters engaged in the act of organised undesirable campaign, by circulating unfair, unreasonable and scandalising ‘criticism’.
- that I am "lewd" (which means 'crude and offensive in a sexual way')

On my view on the 1971 war

There is no basis to the Tribunal's claims that the introduction of another article I wrote in 2012 (not subject to this contempt action, but referred to in the judgement) shows  that I am "distorting settled history" have a "perverse view" which reflect a "malicious intent" which has "demeaned the nation's pride" and was "unfounded, purposeful and prejudicial" and was "slanderous to the glorious history" of the war of Independence, and showed an "unholy and purposeful tendency and mind set to demean and malign not only the trial process in the Tribunal but also the ‘magnificent war of liberation" and has shown "patent disrespect to our ‘proclamation of independence."

It should be noted that in discussing this article published for the International Crimes Tribune, an independent journal, the judgement blames me for the title for which I had no responsibility and also, and seems to imply that the title refers to one thing when it refers to something else. In addition, its analysis misquotes the article .
The law of contempt

The Judgement refers to a single case where descriptive 'words' have been considered contempt of court. In this case the article quoted by the court described judges as “swinish whites-skinned judges”, “pigs”, and “judicial scumbags and evil remnants of the British Hong Kong government." There is no wording used in the three articles before this current Tribunal that come anywhere close to this kind of abuse. 
The Judgement does not refer at all to the legal cases - that we pointed out in our arguments before the court - which involved particular critical statements where the court held that there was no contempt of court. We had argued that if these criticisms were not considered contempt, then neither could the criticisms in these three articles.

So none of the following wording considered to be in contempt of court:
- 'blindness of judges';
- the 'unrealistic, contradictory and, in the leading case, erroneous, decisions of the courts',
- 'Everyone, it seems, is out of step, except the courts';
- '[courts should remember that] silence is an option';
- 'We must teach [the judge] a lesson, in this country, and expose him for what he is';
- 'The [judge's] report is being used to destroy me';
- 'the Supreme Court [is] composed of the element from the elite class had their unconcealed sympathy for the haves';
- 'the court is as if a safe shelter for the corrupt of accused persons'; and
- 'the court who grants bail should be held responsible.';

If the publications and utterances referred to above are not considered in contempt, then the statements I made in the three articles which are much more restrained in character, cannot be regarded as in contempt.
Censorship on settled history
The judgement states that "Any one including the contemnor is thus obliged to keep the above observations made by our Apex court on 'settled history' in future." However, with respect, whatever the appellate division may or may not have said about the numbers of those who died in 1971 (without looking at the research on the matter) or indeed on any other aspect of the 1971 war - does not make it unquestionable. And the appellate division certainly did not make that assertion in its judgment. In addition article 39 (1) of the Bangladesh constitution guarantees, 'Freedom of thought and conscience' and does provide any reservation

Analysis of the contempt judgement 8: Censorship on settled history

This is eighth in a series of articles analyzing the Tribunal's contempt judgement involving three articles in this blog. The full judgement can be accessed here

To see the index to the series of articles analysing the contempt judgement go here

It should be noted, at para 44 of this judgement, the Tribunal explicitly states that 'We always welcome post-verdict criticism',  and and at para 73, 'We of course do not disagree that even post judgment criticisms is permissible.' So I make these comments in that context.

This article looks at the tribunal judgement's ruling that aspects of the country's history cannot be commented on and written about from what the court understands to be 'settled history'. (Please also see   what the tribunal said about 'settled history' and the 1971 death numbers, here.)

The judgement states as para 122 and 123 the following:
The Appellate Division in disposing of the criminal review petitions [in the Molla case] reiterated acknowledging this settled history as below:
"All the above incidents took place when the people of the country were fighting against the occupation army of Pakistan for liberation of the country."
In disposing of the above petitions, the Appellate Division further observed:
"These offences were perpetrated in Bangladesh following the onslaught of ‘Operation Search Light’ from the night following 25th March, 1971 to 16th December, 1971, by the Pakistani occupation army and their collaborators after the declaration of independence of the country by late Sheikh Mujibur Rahman. There were wide spread atrocities like killing of three million people, rape, arson and looting of unarmed civilians, forcing 10 million people to take shelter in the neighbouring country, India."

Analysis of the contempt judgement 7: 'Swinish whites-skinned judges', “Pigs”, and “judicial scumbags

This is seventh in a series of articles analyzing the Tribunal's contempt judgement involving three articles in this blog. The full judgement can be accessed here

To see the index to the series of articles analysing the contempt judgement go here

It should be noted, at para 44 of this judgement, the Tribunal explicitly states that 'We always welcome post-verdict criticism',  and and at para 73, 'We of course do not disagree that even post judgment criticisms is permissible.' So I make these comments in that context.

This article is concerned with a section of the judgement dealing with contempt law

1. The Judgement starts of by referring to a paper written in 2011 by ATH Smith for the New Zealand law commission, and states:
The rationale for an offence of scandalising the court derives from the need to uphold public confidence in the administration of justice. In many ways, this need is particularly acute in a democracy, where the power and legitimacy of the judicial branch of government derives from the willingness of the people to be subject to the rule of law. In consequence, the public must have faith in the judicial system.
However the Judgement does not refer to what Smith says a little later in the report where he suggests an abolition of the category of the offence relevant here, the 'scandalising the court', and where he makes the following comments: