Wednesday, April 16, 2014

Further written response to contempt application

This is a rejoinder (to the reply of the applicant) which was filed earlier today with the International Crimes Tribunal in relation to the contempt application against three articles written in this blog.

This document below should be read along with,

(To read the background to all this, see here)

The document below refers to a written document which the applicant filed in court, and which is not currently available as a soft copy (but will be placed on this page as soon as it is).
THE OPPOSITE PARTY’S REJOINDER TO THE REPLY OF THE APPLICANT

I, David Bergman, son of Alan Bergman and Viorica Bergman, of 1, Elvaston Mews, London SW1 5HY, United Kingdom, currently residing at 7/C New Bailey Road, Dhaka-1000, by profession: journalist, by nationality: British, aged about 49, state as follows:

1. That I am the opposite party in the above Miscellaneous Case. I have been served with a copy of the reply filed by the applicant to the explanation dated 18.03.2014. I have gone through the contents of the said reply. I have been advised to file this rejoinder to the reply for the disposal of the application in the interests of justice.

2. That as stated therein, the explanation dated 18.03.2014 was not meant as a statement controverting the application filed by the applicant nor a reply to show cause, but rather an explanation to the Hon’ble Tribunal of the three blog posts in issue as ordered for its kind consideration. Hence, it is submitted that the explanation did not call for any reply from the applicant. Nonetheless, since the reply filed by the applicant forms part of the record and purports to controvert paragraph wise the statements made in the explanation, the opposite party has been advised that for good order, he ought to submit a rejoinder to the reply.

3. That the statements made in the reply which are not herein after expressly admitted shall be deemed to have been denied by the opposite party.

4. That the statements made in paragraph Nos. 1 to 4 are matters of record.

5. That the statements made in paragraph No. 5 are denied as being false and vague. The opposite party reiterates the statements made in paragraph No. 5 of his explanation; the opposite party again refers to the particulars of his background as stated in paragraph No. 8 of his reply in support of the fact that he is conscious of the nature of the international crimes and atrocities committed in 1971 and that he is on record as having supported the process of seeking accountability for such crimes. The opposite party would also respectfully point out that, in contrast, there is nothing on record to show the applicant as ever having sought such accountability. In addition, although the comments of the opposite party are described as “frivolous and exaggerated” and the criticism is described as “reckless”, the applicant has given no particulars as to why they are so.

6. That the statements made in paragraph No. 6 are denied as being false and vague. In particular, it is denied that the comments contained in the opposite party’s blogs are carefully calculated to undermine the authority of the Hon’ble Tribunal or obstruct and interfere with the due course of justice, or that they malign the dignity of the Judge of the Hon’ble Tribunal and make the trial process questionable. It is stated that the applicant has posted over 800 blog articles and posts describing and discussing various aspects of the proceedings before the Hon’ble Tribunal, of which the applicant has found only three, written over a year ago, to contain allegedly contemptuous remarks. It is reiterated that each of these three blog posts or articles discusses a specific aspect of the proceedings before the Hon’ble Tribunal in restrained and dispassionate language and upon reference to particular facts, and amount to permissible fair criticism. Merely alleging that such criticism is “reckless” or otherwise detrimental to the proceedings before the Hon’ble Tribunal without stating why this is so and without detailing any alleged inaccuracy in the criticism of the opposite party ought not to be allowed to sustain a charge of contempt.

7. That the statements made in paragraph Nos. 7 and 8 of the reply are false and hence denied. It is denied that that the opposite party has failed to exercise due care and attention or that the comments are reckless or that he has not acted in good faith. The opposite party has not stated that Hon’ble Tribunal has given a “pre-determined judgment”; if seen in its proper context, the blog post/articles in issue states that the placement of certain paragraphs in the judgment, where conclusive remarks about the accused are made before a discussion of the evidence, may give an appearance of pre-determination, suggesting that this should be avoided; it is submitted that this is fair criticism. The opposite party further denies that he made a “deliberate attempt to dispute a historical fact of common knowledge”, thereby inciting unnecessary and unwarranted debate over an issue by giving unsupported and contradictory data, and makes the process questionable. It is submitted that this is a gross a mischaracterisation of the blog article in issue, which appears to be the article referring to the number of dead in 1971; the opposite party reiterates his detailed explanation about the blog/article as contained in his explanation. It is also stated that the indictment order of Delwar Hossain Sayedee, which was the context in which the blog article was written, did not state that the Hon’ble Tribunal was taking judicial notice of any fact regarding the number of deaths; it is grossly unfair for the applicant to now falsely state that this was the case, and then castigate the opposite party for having committed contempt for allegedly disputing such fact. Indeed, the judgment of Abul Kalam Azad, which also refers to the figure of 3 million dead, did not mention that judicial notice was being taken of any such fact, even though judicial notice was expressly stated to have been taken of other facts. Hence, it is submitted that the reference to section 19(3) of the 1973 Act in this context, as has been made by the applicant subsequently in his reply is misconceived. It is also submitted that even had judicial notice been taken of this matter, an article discussing whether the Hon’ble Tribunal was right in so doing is permissible. It is further submitted that even the most cursory reading of the blog articles would reveal that the opposite party exercises due care and attention, and was therefore acting in good faith, inasmuch that the blog articles make detailed and particular references to facts, figures and sources, which have not been specifically disputed or contested by the applicant. Without disputing facts, figures and sources, the applicant ought not to be allowed to baldly assert that the opposite party has not exercise due care and attention.

8. That the statements made in paragraph No. 9 are false and hence denied. In particular, it is denied that the opposite party is a habitual contemner as alleged. It is denied that the articles posted in the blog of the opposite party are contemptuous or are calculated to obstruct and interfere with the course of justice. Rather, it is stated that the comments referred to by the applicant represents permissible fair criticism. Furthermore, the assertion that the number of deaths in 1971 “has become part of the world history, a classic example of historical fact of common knowledge” represents the subjective opinion of the applicant. The opposite party respectfully submits that while the fact that gross atrocities occurred in Bangladesh in 1971 is a matter of common knowledge and cannot reasonably be denied, there are considerable differences of opinion and views held by various credible sources about the exact number of dead in 1971; the blog article of the opposite party merely discussed these different opinions and views upon a reference to such sources.

9. That the statements made in paragraph No. 10 are false, misleading, vague and hence denied. The opposite party denies that he was not acting in good faith. The opposite party further reiterates that his background, which is as a journalist with a background in law who has reported and written about war crimes and related issues for over 20 years as stated in his explanation, warrants him being regarded as a person capable of making fair criticism within the bounds of the observations of the Hon’ble Appellate Division as quoted in the paragraph. Again, the applicant is making a sweeping assertion that the opposite party is not well versed as to the provisions of law and is as such not qualified to make fair criticism is a vague statement, inasmuch that the applicant has failed to set out the reasons why the opposite party should be considered so. The opposite party fails to understand how 3 blog articles, which are among over 800 published by the opposite party since 2010, and which contain fair criticism of certain aspects of the proceedings before the Hon’ble Tribunal in sober and restrained language can be considered to be an “attack on the substratum of the judiciary”.

10. That the statements made in paragraph No. 11 of the reply are matters of record.

11. That the statements made in paragraph No. 12 of the reply are false, misleading, contradictory and hence denied. The explanation of the opposite party was given since it was ordered by the Hon’ble Tribunal. Accordingly, the opposite party made a statement explaining his articles, referring to sources. Now, the applicant is purporting to assert that by giving such an explanation in compliance with the order of the Hon’ble Tribunal, the opposite party has “dared to justify the truthfulness of his comments”. The opposite party reiterates that the criticism contained in his articles were fair, and indeed, if such criticism is not regarded as fair, it would beg the question as to what would be regarded as fair. Again, the applicant is alleging that the criticism was unfair without specifying the reasons for such alleged unfairness; it should be noted that at no point has the applicant alleged that the sources referred or information contained in the blog articles were not authentic or were inaccurate. Furthermore, it is submitted that truthfulness and factual correctness is relevant to the issue of whether contempt has been committed inasmuch that it is germane to the issue of bona fide and good faith, and assessing whether criticism is fair, which is permitted under the law.

12. That the statements made in paragraph Nos. 13 and 14 are misleading and hence denied. The opposite party reiterates and submits that the contents of his blog article do not constitute contempt of court, but rather represents fact based fair criticism expressed in sober and restrained language with a view to critically analyse the proceedings, which is permitted by the law, and are directed at seeking improvements in the trail process.

13. That the statements of fact made hereinabove are true and correct and the rest are submissions before this Hon’ble Tribunal.


Prepared in my office
___________________

D E P O N E N T
Mustafizur Rahman Khan
Advocate

Hearing on 'explanation of criticism' - 31 Mar 2014

This is a summary of the proceedings which took place on 31 March 2014 in Tribunal 2 following the tribunal’s earlier order which sought an explanation from me for alleged ‘criticisms’ in three articles contained in this blog some years ago. The relevant articles are here:

Sayedee Indictment - 1971 deaths (published on 11 November 2011), 

This hearing took place after the filing of a detailed ‘explanation’ of the criticisms contained in three articles. The written explanation, can be seen here – with an index to the key parts. Subsequent to this hearing, a rejoinder to the applicant's written response was also filed with the international crimes tribunal

At the end of the hearing, the court said that it would give judgment on 17 April.

Mustafizur Rahman Khan, counsel for Bergman, started the proceedings.

Thursday, March 27, 2014

Explanation to the tribunal over alleged criticism

On 23 February 2014, the International Crimes Tribunal 2 issued an order seeking an 'explanation' about criticism of the tribunal contained in three posts in these blogs. The particular blog posts are as follows: Sayedee Indictment - 1971 deaths (published on 11 November 2011), Azad judgement analysis 1: in absentia trials and defence inadequacy (published on 26 January 2013) and Azad judgement analysis 2: Tribunal assumptions (published on 26 January 2013).

This notice was issued following an application made by a lawyer seeking punishment for contempt, and closure of the blog.

On 18 March 2013, an explanation was filed, and the court then set 27 March (today) as a date for a hearing on the explanation to take place. This has now been adjourned until 31 March (Monday)

Below is text of the explanation which was filed with the court one week ago, and about which there will be an oral hearing today.

Tuesday, February 25, 2014

1971's war time death numbers: further thoughts

How many people died during the 1971 war?

Over two years ago, in the context of the first indictment in the International Crimes Tribunal, I wrote a   a long article on this question, which can be seen here.

Since then, some more information that can be added to the analysis.

The 'official' government figure is that 3 million were 'killed' in the war at the hands of the Pakistani military and their collaborators.

It is significant that the word 'killed' is usually used - since this does not include those who died from war-related diseases.

Presumably therefore, those who argue that 3 million were 'killed' in the war also consider that many more also died from other war-related causes making the figure of those who died in the war higher than 3 million.

Sunday, February 23, 2014

Tribunal judgements and the death toll in the 1971 war

An application was made last week to the international crimes tribunal claiming focusing on an article/post written on this blog which was written in 2011, over two and a half years ago, concerning the number of people killed in 1971 and claiming that it is contemptuous. 

The article was written in the context of a statement contained in the historical introduction of the charge-framing order (i.e indictment) delivered by tribunal-1 against Delwar Hosain Sayedee on 3 October 2011. It stated:
'As a result [of the actions of the Pakistan military, and the role of the collaborators] '3 million (thirty lacs) people were killed more than 200,000 (two lacs) woman raped, about 10 million (one crore) people deported to India as refugees and million others were internally displaced...'.
See here some my response to this contempt application

I thought it would be interesting to see how the nine subsequent final tribunal judgements, all delivered in 2013,  have dealt with the issue of the 1971 death toll.

Please note that this is simply a factual analysis of the judgements. Nothing more

Saturday, February 22, 2014

Bangladesh ICT Witness abduction: a rejoinder

David Bergman                                                                    A bangla version of this article can be accessed here

In a judicial system which worked, the article written by Omor Shehab on bdnews24.com concerning my blog reports on the alleged abduction by law enforcement officers of a prosecution-turned-defence witness at the international crimes tribunal would have been the source of an apology and a pay out for me in defamation damages.

Unfortunately, in Bangladesh, I don’t think anyone has ever won such a legal action in the courts. So I shall instead respond here to Omor’s article which apart from defaming me through it’s claim that I helped ‘fabricate’ the story of the witness abduction, contains many inaccuracies and omissions and is generally highly misleading.

Omor Shaheb’s basic position is pretty clear. Sukhranjan Bali, a witness in the Delwar Hossain Sayedee trial, was not kidnapped outside the international tribunal from a defence lawyer’s car; the Jamaat-e-Islami was involved in a conspiracy to pretend that he was abducted; and I was a party to that conspiracy.

What does Bali himself say?
Bali has himself stated clearly he was abducted by Bangladesh law enforcement agencies from outside the tribunal.

Thursday, February 20, 2014

Ten key things to know about the contempt application

These are main points relating to the application

1. On 19 February 2014, an application was filed with the International Crimes Tribunal 2 by a lawyer, claiming that three posts on this blog (which contains  a total of over 840 posts in total) were in 'contempt' of court. On 20 February, the tribunal passed an order stating:
'The applicant appears to have brought the application contending that the opposite party, Mr Bergman, made criticism on sub-judice proceedings and also he did post judgement criticism intending to create controversy and malign the authority and jurisdiction of the tribunal. 
Having regard to submission and essence and contents of the alleged criticism circulated by the opposite party in his own blog, we consider it expedient to ask David Bergman to explain the criticism allegedly he made in his personal blog on 11.11.2011 and 28.1.2013. 
Therefore Mr Bergman is directed to explain the criticism he circulated in his own blog, either in person or through his lawyer on 06..03.2014'
It should be noted that this is not a conventional 'show cause notice' where a person is asked to explain why particular action should not be taken against him or her in relation to a particular matter. It is simply an order asking for explanation. Presumably, the tribunal could subsequently issue a show cause notice.

2. One of the posts alleged to be contemptuous was published on 11 November 2011, over two years ago. The other two posts were published in January 2013, over one year ago. Since the publication of the January 2013 posts, there have been over 200 posts published on this blog, none of which were subject to criticism in the application.

3. The application is made under section 14(4) of the International Crimes Tribunal which states:
A Tribunal may punish any person, who obstructs or abuses its process or disobeys any of its orders or directions, or does anything which tends to prejudice the case of a party before it, or tends to bring it or any of its members into hatred or contempt, or does anything which constitutes contempt of the Tribunal, with simple imprisonment which may extend to one year, or with fine which may extend to Taka five thousand, or with both. 
4. The application seeks my punishment for contempt, as well as more worryingly an order to close the blog and to stop me writing about the tribunal in any 'worldwide website'. So it seeks the following order:
'To pass an order of stay or injunction restraining the opposite party to further display, publish, circulate any articles/comments in his personal blog in respect of war crimes tribunal and its preceding or in any other electronic of print media or in any worldwide website.' 
It should be noted that this order is being sought on the basis of the applicant's claim that only 3 out of the 840 posts are contemptuous, with the most recent post which it criticises published over one year ago. The applicant has not criticised any one of the over 200 posts in the last year. Nonetheless, the applicant seeks to stop the blog and my writing on the ICT.