The hearing started with Mustafizur Rahman Khan, the lawyer acting for both myself and the publisher, reading out the statement that I had given in response to the show cause.
The document that was read out in court can be downloaded here.
The lawyer made the following additional oral arguments during the hearing:
- re para 3 to 14 of response, he said that some space in the written response has been spent on the background of David Bergman, since the two appellate division cases dealing with contempt, state that in considering the issue of whether an article is 'fair comment' the background of the writer needs to be taken into account.
- He pointed out there was a significant difference in tone and tenor of the article now before the article that than the article that was dealt with by the appellate division; that in the appellate division case, the writer had no legal or other background in the issue about which he was writing, which is in stark contrast to that of David Bergman's 'capacity and ability'.
- re para 15 of the response, and in relation to an earlier article of April 2001, about which the tribunal had raised concerns, the lawyer said that had the tribunal sought to take contempt proceedings in relation to that particular article, David Bergman would not likely have defended his position. He then said that this article now before the tribunal is very different from the previous one.
- re para 18 of the response, he said it is clear that there are strong views from both sides of the political spectrum, and that people have prejudged the proceedings. David Bergman presented those views due to his anxiety that they be refuted by the tribunal
- re para 21 of the response, he said that the manner in which David Bergman obtained the information about the order is placed before the tribunal to deal with the allegation that he 'deliberately distorted' the order of the court. The quoted passages in the article, relating to cognisance being taken on the basis of 20 witness statements, come from contemporaneous notes, and he said that we have copies of those notes.
- re para 23 of the response, he said that the view stated in the article about the difficulty of showing a prima facie case against a person for crimes against humanity may be one in which the tribunal disagrees but this is a reasonably held view. In Bangladesh, the law does allow one witness statement to be used, but the article is discussing an offence of crimes against humanity and it is based on an expert opinion which he obtained before writing the story.
- re para 26 concerning the sentence 'Moreover, there is a separate issue about whether the tribunal even had, in its hand, all the witness statements when it took cognisance.' He said that whatever one might think of this sentence, the article after the sentence then sets out a sequence of events that are fair and accurate, and sets out clearly the final view of the tribunal. It was written in 'good faith', and written with 'due care and caution'
- David Bergman has devoted much of his journalistic career to supporting the cause of those campaigning for justice relating to 1971 and it is difficult to believe as a result that he has acted in bad faith or with an intention to deliberately distort the orders of this tribunal.
- in relation to the case law submitted at para 30, he said that it is important that the tribunal look at the article in its entirety, and not just look at particular sentences out of context.
- in relation to para 31, it is reasonable for a journalist to set out different points of view. It is clear from the article that the writer does not support them in their view.
- in relation to para 32, he said that the tribunal may not agree with these views but they are reasonably held, and that they are expressed in reserved language and not in language that can in any way be said to be scandalous .
The tribunal raised a number of issues during the hearing:
- it was stated that the quotation relating to 20 witnesses was not stated during the giving of the oral order but was part of informal discussion between the tribunal and the prosecution.
- it was stated that in Bangladesh, in many other jurisdictions, including in international law prosecutions and convictions take place on the basis of one witness
- it was suggested that many of the words in the article give a 'signal', a bad impression about the tribunal?
- the use of the word 'even' - in the sentence: 'Moreover, there is a separate issue about whether the tribunal even had, in its hand, all the witness statements when it took cognisance' - was questioned. 'What is the purpose of using the word 'even. It sends a bad signal. Maybe I am wrong?' one tribunal member said.
- The chairman said that he was concerned about these paras:
'This raises two key issues. First, the tribunal seems to have taken cognisance for many of these twenty offences on the basis of looking at just one witness statement. It is difficult to see, unless the statements were extremely strong, how the tribunal could come to the conclusion that there is ‘prima facie’ evidence for the commission of an alleged ‘crime against humanity’ which took place forty years ago just on the basis of one witness statement. .... Second, and perhaps more significantly, it appears from the order that the tribunal did not give consideration at all to any witness testimony that the prosecution alleged substantiated 14 out of the 31 counts set out in the prosecution charge application. How then did the tribunal take cognisance of these offences? Can the tribunal move onto framing charges relating to any of these 14 offences—which in fact includes all five alleged genocide offences—when it appears, from its own orders, that the tribunal has not taken any proper cognisance of them?You asked us to consider the entirety of the article and these are part of the article. How do you explain them?
- one judge raised a question about a different matter not before the court - a blog post, that was written concerning a tribunal order which censured three British barristers. The judged raised a question about the meaning of the last line of this section which reads. 'It of course could also have been sent by the registrar's office'. The judges asked 'why is David Bergman mentioning this?' The relevant except is below with the sentence highlighted:
The next question is whether or not (a) the letter should have been distributed to the media and (b) whether the barristers should generally be publishing statements as they do, some of which are directly send to the media.A link to this particular blog is here
Although the tribunal has assumed that the British lawyers distributed this letter to the media, as far as I know there is nothing to show that they did. I, myself was infact sent a copy of the e-mail/letter that was sent to the registrar in the afternoon of 9 November. It was from an e-mail address that I did not recognise, and comes up with no entries when googled. As I was suprised to received the letter, I immediately e-mailed Tony Cadman to ask him about it, and it was clear from his response that he was suprised that I had received it.
It is much more likely that the letter was sent to local Bangladesh media by one of the local lawyers or perhaps one of supporters of the defence team in Bangladesh. the question then becomes whether or not the foreign lawyers authorised this to happen, and we don't know that at the moment. It of course could also have been sent by the registrar's office, but I think that is very unlikely.
The tribunal then commented that since the publisher Shahidullah Khan was not present in the country when the article was published it was not necessary to consider any action to be taken against him.
The editor, Nurul Kabir, who is representing himself, then rose to start his response when he was told that his response was not in the proper form, without a case number and without paragraph numbering. One of the tribunal members asked him why he was in any case attending the tribunal if it was his view that the tribunal had no authority to issue contempt rules.
The chairman then adjourned proceedings until 1 December.