My lawyer has placed before the International Crimes Tribunal all the main substantive arguments in support of the position that the article was not in contempt of court and that proceedings should not be taken against me. The publisher adopted these arguments whilst at the same time providing to the court a short statement about his background which includes information of his role as a renown freedom fighter during the 1971 war and a financial supporter of many pro-1971 cultural events.
Nurul Kabir the editor of the paper is representing himself, and is currently half way through his oral arguments before the tribunal in which he is setting out why contempt proceedings should not be taken against him.
Below are the main arguments that my lawyer, Mustafizur Rahman Khan, put before the court along with some of the views given by the tribunal during the two hearings so far, and our responses to these views.
You can download the two responses we have so far filed before the court – both of which were read out full in court and are therefore part of the court’s record. The first one which was filed on 23 October (and argued on 27 November), and the supplementary response which was filed on 30 November (and argued on 1 December). Along with the supplementary response there was a legal opinion from international criminal lawyer Wayne Jordash which can be downloaded here.
There have been two hearings on the substantive arguments - and you can read the seperate posts on the one on 27 November and the one on 1 December. However this page may well provide a better overall view of the arguments.
In the 3 October show cause order, the tribunal criticised five elements of the article. Subsequently during the hearing on 27 November, the tribunal raised issues about some other parts of the article. The arguments relating to each one of the concerns raised by the tribunal is discussed below.
1. 'Views of others'
In its initial show cause order, the tribunal pointed to two paragraphs in the article - one near the beginning and the other near the end - which set out a view about the tribunal which the article stated 'many' held.
To many in Bangladesh the guilt of Sayedee and the other detained men are foregone conclusions; tribunal hearings about cognisance and charge framing are simply procedural obstacles on a legal conveyor belt that will inexorably take Sayedee and the others towards their rightful convictions.In the order, the tribunal placed these two paragraphs in the context of a previous article which the tribunal had orally criticized at a hearing in April 2011 (and for which I had issued a response).
The accused are, to many people, already proved to be guilty with the tribunal simply acting as a mechanism to give their ‘guilt’ a judicial stamp.
It may be noted that in the earlier occasion on 14th April, 2011, Mr David Bergman wrote another article in a daily terming the tribunal as 'Rubber stamp and backboneless.' In an open court, his attention was drawn to those remarks by this tribunal and took lenient view in the matter considering him a foreign journalist, he was simply cautioned with an expectation that he would be more careful in making reports about the functions of the Tribunal.In our submissions to the tribunal we argued that:
It appears from the para (a) and (b) of this Notice that Mr David Bergman has again tried to establish the Tribunal as a judicial stamp acting like a tool for finding accused Sayedee guilty under a legal coverage. The above comments against the tribunal appear to have been deliberately made in order to lower down the prestige and honour of the Tribunal in the estimation of the people at large all over the world.
- The two relevant paragraphs are clearly not the view of the writer, as seen by the respective use of the words ‘to many’ and ‘to many people’ in the paragraphs and also by subsequent sentences written after each of the two paragraphs in the article: immediately after the first quoted paragraph the article states “those who are concerned about issues of due process and fairness will recognise that the credibility of these trials will be determined by the decisions the tribunal makes on assessing evidence, on how it interprets the offences set out in the International Crimes (Tribunal) Act, 1973 and, of course, the reasoning it provides for its decisions”; and immediately after the second of these two paras, the article states that the Tribunal has “itself forcefully argued that it will apply the highest standards of due process and has clearly said that it will abide by its own procedural rules.”
- the fact that a wide section of society do hold these views is clearly indicated by numerous articles in the media. Three representative articles were given to the court in support of this point: (a) Law amended for war crime trials, and was was given to the tribunal to highlight the comment made by the parliamentary standing commiteee on the law ministry in its report to parliament, that "The nation will get rid of war criminals and razakars once the trial of them is completed" which, arguably, indicates that in the standing committee's opinion the tribunal will convict those who will be accused before it; (b) Trial starts next month with two, which was given to the tribunal to highlight the comment made by the law minister who stated "It will be possible to start next month the trial of two of those charged with war crimes,” which suggests that the minister was of the view that the procedure of taking cognisance and charge-framing - which have to take place before the trial starts - are automatic ones; and (c) Sangskritik Forum symbolically hang Bangladeshi war criminals, which was given to the tribunal to show the strong emotions of some people who assume that the men accused before the tribunal are guilty.
- the two paragraphs were written to explain the context in which the tribunal was operating, and the need for the tribunal to repel such views by ensuring high standards of due process.
- This article is very different from the April article which the tribunal had previously raised concerns; whilst in that article the author had suggested that the tribunal had in the past ‘rubber-stamped’ prosecution applications and also had 'lost its backbone' in reversing an order it has previously made, the current article under consideration does not contain any such views made by the author. This is clearly reflected in the differences in the titles of the two articles, with the first one titled, ‘Back to the rubber stamp’ whilst the one under consideration being titled as ‘A crucial period for the ICT’.
Here is an extract from the written arguments given to the court:
15. That in the order dated 03.10.2011, the Hon’ble Tribunal has referred to a previous incident where the opposite party No. 1 was cautioned for his choice of words criticising the Hon’ble Tribunal while writing an otherwise analytical article about the proceedings before it. Following the caution of the Hon’ble Tribunal, the opposite party No. 1 wrote a further article the very next day accepting that it had been unwise for him to make direct criticisms of the Tribunal in such a manner. However, the opposite party No. 1 respectfully submits that the article in issue which has prompted initiation of the above miscellaneous case is entirely different in its tone, tenor and purport compared to his earlier article, and opposite party No. 1 respectfully submits that the present article does not transgress the limits of fair comment permitted by law.Taking Cognisance
16. That it is respectfully submitted that paragraphs (a) and (b) quoted in the order dated 03.10.2011, do not amount to the opposite party no. 1 having “tried to establish the Hon’ble Tribunal as a judicial stamp acting like a tool for finding the accused Sayedee guilty under a legal coverage,” and therefore there is no question of him having “lower(ed) down the prestige and honour of the Hon’ble Tribunal in the estimation of the people at large all over the world”.
17. That it is submitted that on a plain reading of paragraphs (a) and (b) as cited in the order, it is manifestly evident that they do not contain any criticism of the Hon’ble Tribunal but merely refer to the opinions expressed by prominent public personalities as well as persons holding high office either stating or inferring that the proceedings before the Tribunal would invariably result in charges being framed and convictions obtained. Such views have been published in the public domain, and opposite party No. 1 craves leave to refer to such publications at the time of hearing. That the opposite party No. 1 himself does not hold such views is amply clear from the paragraph in the Article immediately following paragraph (a), where opposite party No. 1 states that “those who are concerned about issues of due process and fairness will recognise that the credibility of these trials will be determined by the decisions the tribunal makes on assessing evidence, on how it interprets the offences set out in the International Crimes (Tribunal) Act, 1973 and, of course, the reasoning it provides for its decisions.” It is clear from this subsequent paragraph, as well as the tone and tenor of the entire Article, that paragraph (a) was simply written to put into context the need for the Hon’ble Tribunal to adhere to its own procedures so that it may repel such views. Nowhere in the Article is there any statement indicating that the Hon’ble Tribunal will be unable to repel such views.
18. That it is submitted that on a plain reading of paragraph (b) as quoted in the order dated 03.10.2011, it is manifestly evident that the opposite party No. 1 is referring to the views of others, and not himself, by his use of the words “to many people”. Furthermore, in the context of making such reference, opposite party No. 1 has also stated, two paragraphs later, that the Hon’ble Tribunal has “itself forcefully argued that it will apply the highest standards of due process and has clearly said that it will abide by its own procedural rules.” Again, it is clear that paragraph (b) does not express the views of opposite party No. 1, but rather points to the views held by certain people, as reflected in statements which have already been reported, with respect to the proceedings before the Hon’ble Tribunal, and the importance of having such views dispelled in the interests of the Hon’ble Tribunal
19. That it is submitted that it is not unreasonable for a journalist to set out a context in which the Hon’ble Tribunal is functioning in order to indicate the importance of the Tribunal maintaining appropriate standards. It is also submitted that the significant differences between the two articles referred to in the Hon’ble Tribunal’s order are made apparent through consideration of their respective titles. The Article under consideration by the Hon’ble Tribunal currently is titled, ‘A crucial period for the International Crimes Tribunal’, which is in no way critical of the tribunal, and shows the concern of the opposite party No. 1 to uphold respect and confidence in the Hon’ble Tribunal, and not tarnish its image.
The article had stated the following
‘The tribunal’s own rules of procedure, drafted by the judges themselves, set out what is required if they wish to take ‘cognisance’ of an offence.The tribunal in its show cause order had raised questions about this last sentence - that cognisance has to be taken against ‘each separate offence.’
Rule 29(1) states that, ‘The Tribunal shall take cognisance of an offence against any accused upon examination of the formal charge, the investigation report, the papers, documents and the evidence submitted by a prosecutor in support thereof, if they disclose a prima facie case for trial of the accused.’
What does this mean? First, cognisance has to be taken for each separate offence alleged against an accused.’
Our response to the tribunal stated that the use of the word ‘an’ prior to the word ‘offence’ in the rule indicated that the rule required that cognisance had to be taken for each of the offences for which cognisance was sought; that is to say that for each of the offences, the tribunal has to find that there was a prima facie case. It was not enough for the tribunal to find evidence generally of crimes against humanity and therefore as a result take cognisance of all the offences without looking at each one separately and finding for each one available evidence that substantiates the prima facie test.
[It should be noted that in the ordinary criminal courts of Bangladesh in relation to ordinary crimes, cognisance is a formality, and is a simple process by which the court takes judicial notice of the offence(s) in question; there is no requirement in ordinary law for the court to make any assessment of the evidence. However, in the rules for the international crimes tribunal devised by the tribunal itself, there is an additional requirement; that the tribunal has to find a prima facie case. In the article it was stated that the ‘In the context of a criminal trial, the term ‘prime facie’ generally denotes evidence that, in itself, without hearing defence rebuttals, would be sufficient to prove all the elements required in the commission of a particular crime.’]
Basis of giving cognisance – 20 witnesses
This is perhaps the most important of the concerns raised by the tribunal – since much of what is written in the article stems from this. The article quotes from the the order, given orally by the judges on 18 August which states that it took cognisance for all the offences on the basis of 20 statements.
The relevant quote from the order is as follows:
‘We are of the view’, the order stated, ‘that witness no 1, 2, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14,15, 16, 17, 18, 20, 22, 23, 24 have stated that the accused was involved in torture, looting, extermination in several places of Bangladesh. It appeared that accused was also involved in killing of some people of the Hindu community and the Awami League. Allegations are available that he forcefully converted Hindus to Muslims. All comes under the purview of crimes against humanity. So we took cognisance.’Though the show cause notice did not specifically refer to this quoted paragraph, the notice implicitly referred to it by stating that:
‘The order of taking cognisance of offence and the subsequent orders of this tribunal will speak a volume that this tribunal after perusing formal charge, 1st volume containing the statement of 30 witnesses and DVD cassette containing the statements of all witnesses took cognisance of offence and those papers were submitted much earlier before the tribunal by the prosecution.'
At the hearing of 27 November, the tribunal specifically raised questions about the accuracy of the quote from the oral order stating that any reference to 20 witnesses was not infact part of the order itself but part of an informal conversation between the tribunal and the prosecution that took place prior to the order being given.
In our supplementary response we responded to this point of accuracy in some detail.
- It was stated that whilst I was not present at the tribunal on the occasion when this particular order was given, I had employed a journalist to take notes for me of the whole hearing and that the passage in the article is a word for word transcription of what was written in the journalists notes (it should be noted that the orders are read out quite slowly by one of the tribunal judges and is usually easy for a journalist to take word for word notes). The tribunal judges were given a copy of the whole notebook containing the journalists notes of the hearing of 18 August along with notes of the oral order provided. You can see the page of the handwritten notes with the relevant part of the order. Note that the tribunal has got a copy of the whole notebook
-Present at the tribunal on 18 August (the day the order was given) was New Age’s Chief Reporter, Shahiduzzaman who writes the daily news reports on the tribunal for the paper. Following that hearing, he wrote a report for the next days paper which was titled, ‘20 witnesses attest Sayedee’s guilt: ICT’ and which stated that the Tribunal had: “rejected an application filed by Sayedee to seek review of its July 14 order which took cognisance of the charges of war crimes. The tribunal, while rejecting the application, said that 20 prosecution witnesses had given statements about Sayedee’s involvement in war crimes.’ I only came to know about the article after it was published in the paper. This news article supports the contention that cognisance was taken on the basis of 20 witnesses.
Here is an extract from the written arguments given to the court on this matter:
5. In this regard, the opposite party No. 1 states that on 18.08.2011, he was abroad and not present in the courtroom. However, in writing the article in issue, the opposite party No. 1 relied on contemporaneous notes of a journalist/translator who was employed by the opposite party No. 1 to take notes of the proceedings on 18.08.2011 and included the note taking of the orders given by the tribunal. True copy of the notes are enclosed herewith and marked as Enclosure 1.In the hearing on 1 December, one of the tribunal members again stated that the mention of the 20 witnesses by the tribunal on 18 August was not part of the order. In response, it was stated that it was our contention that the tribunal was mistaken in saying this; that the list of 20 witnesses was given as part of the order - made clear from the contemporaneous notes taken of the order itself and indeed from the next day's article in New Age which nobody subsequently had questioned. The lawyer started to show the tribunal members exactly where in the contemporaneous notes the quoted paragraph was taken from, but the chairman said that it was not necessary, saying 'We get your point'.
6. As background, it may be noted that since the beginning of the proceedings before this Tribunal, the opposite party No. 1 has kept a detailed blog of the day to day proceedings of the Tribunal. In order to assist him in keeping as accurate a record as possible for the key parts of the day to day proceedings, he has employed a number of different journalists/researchers to help him take notes, this being a public tribunal where anyone can watch the proceedings and take notes. On most occasions the opposite party no 1 is present at the same time as the journalist assisting him.
7. On 18 August, the journalist in question went to the proceedings and took detailed contemporaneous notes of the hearing including the order given by the tribunal. It is through using these notes that the opposite party wrote in his article that the order listed details of 20 witnesses on the basis of which cognisance was taken.
8. It may be noted that the genuineness and credibility of the notes taken by the journalist can be shown in the following way:
- the note of the tribunal hearing on 18.08.2011 is sandwiched between other journalistic notes, and in particular notes of the tribunal hearing on 14.07.2011 and 24.08.2011;
- the full notes of the 18 August hearing is contained in the notebook in sequence.
- the particular operative order under discussion was given near the beginning of the hearing and it was followed by further arguments and then an order. This sequence is clear from the notes.
9. It may be noted that on 19.08.2011, the very next day after the oral order was given, New Age published an report on the bottom right hand side of the front page of the newspaper titled, ‘20 witnesses attest Sayedee’s guilt: ICT’. The article stated that the Tribunal had: “rejected an application filed by Sayedee to seek review of its July 14 order which took cognisance of the charges of war crimes. The tribunal, while rejecting the application, said that 20 prosecution witnesses had given statements about Sayedee’s involvement in war crimes.’ True copy of the said report (which was written by Mr. Shahiduzzaman, a respected journalist), is enclosed herewith and marked Enclosure-2.
10. For the avoidance of doubt, the opposite party No. 1 does not question that the Hon’ble Tribunal read the documents that it had been provided before taking cognisance, and it may well have been the case that it did not mean to list the witnesses as it did in the oral order, and that it in fact relied on more than just the 20 witnesses when taking cognisance; but it is respectfully submitted that it was entirely reasonable for the opposite party No. 1 to rely on detailed contemporaneous notes taken of the order as dictated orally while writing the article in issue.
Implications of 20 witness statements
The tribunal raised questions both in the show cause notice and then again during the hearing on 27 November about a number of paragraphs in the article which relate to the implications of cognisance having been taken on the basis of 20 witness statements.
One witness: The article stated that:
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.In response to the first sentence, in its initial show cause notice the tribunal stated:
But Mr David Bergman has again tried to establish … that the tribunal took cognisance of offence on the basis of statement of only one witness. Where he got it? It is evident that Mr David Bergman has deliberately distorted the judicial orders of the Tribunal in order to tarnish the image of the Tribunal to paid and to paint it to as an biased form of justice.In response to this it was argued in court that if one cross-checked the particular twenty witnesses with the information, given orally to the court by the prosecution on 4 September, where witnesses were linked to the 31 offences, one found that there were a number of offences linked to these 20 witnesses for which there was only one witness statement proffered by the prosecution
It was also argued that even if, for the avoidance of doubt, one assumed that cognisance was taken on the basis of all the witnesses, there remained seven offences for which there was only one supporting witness at the time of congisance: Counts Nos. 2, 10, 11, 13, 21, 29 and 30.
In response to the second sentence, it was argued in court at the first hearing on 27 November that prior to writing this sentence in the article I had contacted a lawyer with expertise in international criminal law, who was independent of all the parties in the trial process, and asked this person about the difficulty or otherwise of initiating a prosecution for crimes against humanity (and genocide) on the basis of one witness, and that the sentence in the article was based on what that person said.
At the hearing on 27 November, the tribunal questioned the accuracy of this sentence. It argued that under Bangladesh law prosecutions could be initiated and brought to conviction on the basis of just one witness, and suggested that the statement in the article was inaccurate and legally wrong.
In the supplementary response, we therefore provided more details to back up the reasonableness of the statement in the article. Extracts from this are below.
13. As far as Bangladesh law is concerned:(Legal opinion from international criminal lawyer Wayne Jordash can be downloaded here.) It should be noted that Wayne Jordash is not the same international criminal lawyer who was originally contacted by me prior to writing this article.
- Whilst it is possible in Bangladesh for someone to be convicted of murder on the basis of one witness statement, this is not common, and it stands to reason that the witness would have to be a particularly strong and convincing one. The fewer the witnesses in support of an allegation, the stronger each of those individual witnesses must be. When there is one witness, without any corroboration, it is quite obvious that this witness has to be an extremely strong one to support prosecution and conviction.
- It should be noted that the process of cognisance can be taken for normal offences in Bangladesh law without the need to show prima facie case, something which is explicitly required by the Rules that the Tribunal has framed for itself.
- The particular statement in the article does not refer to the offence or murder, etc but to the offence of ‘crimes against humanity’ which has never been prosecuted before in Bangladesh and which is generally understood in other jurisdictions to require not only an individual offence of murder or other similiar crimes but a ‘widespread or systematic attack’ on civilians which would make it even harder for one single witness to substantiate the charge.
14. As far as international offences are concerned, the case law allows an accused to be prosecuted on the basis of one witness. However this is rare for most international crimes and particularly rare for an offence of ‘crimes against humanity’.
15. The reasonableness of the paragraph written by the opposite party No. 1 is reflected in the legal advice obtained by the opposite party No. 1 from Wayne Jordash, a Barrister based in Doughty Street chambers in London who specialises in international criminal law work at different international tribunals. It should be noted that as the Barrister states himself in his is advice that he has ‘no personal or previous professional relationship with Mr. Bergman or any other party involved in the prospective proceedings’ and he has ‘neither sought nor received any payment for this opinion’. A true copy of the said legal advice along with his curriculum vitae is enclosed herewith and marked Enclosure-3.
16. Paragraph 4 of the legal advice states,
“Assuming that I have understood Mr. Bergman’s position correctly, I would assess his comments as fair and accurate in the context of the prosecution of international crimes at international or internationalised courts and/or in trials involving crimes against humanity. Bearing in mind the interpretation of prima facie within international law and the complex nature of crimes against humanity, I wholeheartedly agree with Mr. Bergman’s proposition. Whilst theoretically a single statement from a witness could be capable of sustaining a conviction beyond a reasonable doubt, I am unaware of any successful prosecution on this basis or any attempt by a prosecutor to have sought a conviction on this basis. Given the complex nature of the crime and the multiple elements that must be proven, it is highly unlikely that any one individual would be able to provide evidence that would be capable of demonstrating all the constitutive elements of a crime against humanity beyond a reasonable doubt. The statement (or the evidence) would, in the words of Mr. Bergman, have to be “extremely strong” for this to be successful. This will be further discussed below.”He then explained in detail the reason for taking this view in paragraphs 5 to 13. He then states at para 14:
“It may be argued that because the Hon’ble Tribunal at the International Crimes Tribunal for Bangladesh was only required to reach the prima facie threshold in taking cognisance of the offences under Rule 29 of the RPE, single statements might more easily constitute proof of a crime against humanity. This is correct but this does not change my view that Mr. Bergman’s comments were fair and accurate.”He then states in paras 15 to 18 of his opinion the reasons why he has taken this view.
17. For the avoidance of doubt, the opposite party No. 1 is not arguing that the view set out in this legal advice is the only interpretation that can be taken about this matter or that this Hon’ble tribunal may not take a different view. The opposite party no 1 is simply arguing that the view set out in the relevant paragraph of the article about one witness is an entirely reasonable one, and that this is clearly indicated by the legal advice given by Wayne Jordash.
18. It should also be noted that it was reasonable for the opposite party No. 1 to assume that the elements of the offence of crimes against humanity contained in Section 3 of the International Crimes Tribunal Act 1973 will include the element of the offence in international law since the long title of the Act states that it is ‘An Act to provide for the detention, prosecution and punishment of persons for genocide, crimes against humanity, war crimes and other crimes under international law.’ (emphasis added)
At the hearing on 1 December, following the filing of this secondary response, the tribunal continued to assert that cognisance was a ‘simple thing’ and that for cognisance one witness was sufficient.
It was pointed out to the court that the paragraph does not say that one witness may not be sufficient, but that if one was basing a prosecution on one witness, it would have to be very stong, and also that the paragraphs states specfically that it is dealing with the offence of crimes against humanity, and not any normal offence, and that this offence had not yet been prosecuted in Bangladesh law so there was no precedent as such.
It was also pointed out that the international lawyers opinion referred particularly to the situation of taking cognisance where only a prima facie case was required and had had stated that the contested paragraph in the article, was in the lawyers view, supportable.
The lawyer made the point that the tribunal may take a different view, from the international law but that the opinion in the article was a perfectly reasonable one, being supported by this respected opinion.
Issue of other offences: The tribunal also indicated during the first hearing that it was concerned about the following passage.
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?It was explained in our response that these paragraphs were a natural implication of the tribunal having stated in its oral order that it had taken cognisance on the basis of 20 identified witnesses. Following the 4 September hearing (involving the prosecution seeking to frame charge the offences), it was known which offences these witnesses linked to, so it was possible to determine which offences did not link to any of these identified witnesses – which was found to be around a half of the total 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?
Information 'at hand' when taking cognisance
In its Oct 3 'show cause' order, one of the sentences in the sentence that it was concerned with was the following:
Moreover, there is a separate issue about whether the tribunal even had, in its hand, all the witness statements when it took cognisance.'
In the article, the paragraphs subsequent to this sentence are as follows
At a hearing relating to charge framing that took place on August 23—five weeks after the tribunal initially took cognisance of the offences—it came to light that neither the tribunal members nor the defence had been given the second volume of witness statements, i.e. while it had statements numbered 1 to 30 contained in volume one, it did not have statements numbered 31 to 68.In response to this the original written response stated the following:
On September 21, the defence again sought a review of the cognisance order, this time questioning how it was possible for the tribunal to take cognisance without having seen all of the witness statements.
In its order, the tribunal stated that although it did not have the hardcopy volume of the statements it did ‘consider the CDs and DVDs’ provided on July 11 which contained ‘all the documents.’
26. That insofar as the second sentence in paragraph (d) is concerned, which relates to whether the Tribunal had in hand all the witness statements when it took cognizance, it is submitted this is based upon the following sequence of events:In the oral hearings, one of the tribunal judges focuses on the word, 'even' and suggests that the use of such a word is a 'signal' for readers to question the integrity of the tribunal.
a) On 14.07.2011, cognizance of offences alleged against Delwar
Hossain Sayedee was taken.
b) On 23.08.2011, whilst the prosecution started to present itsapplication for framing charges, it transpired that the prosecution had not given the Hon’ble Tribunal or the defence the hard copy of the second volume of witness statements. This led to the proceedings being adjourned to give the Prosecution an opportunity to submit the said volume.
c) The defence then filed an application seeking review of the earlier order dated 14.07.2011 of the Hon’ble Tribunal, and the Hon’ble Tribunal dismissed this application by its order dated 21.09.2011, noting that although it did not have the hardcopy of the said volume, it did consider CDs and DVDs provided on 11.07.2011 to the Hon’ble Tribunal by the prosecution, which contained all the documents, including the witness statements.
27. That the above sequence of events has been narrated in the Article subsequent to the sentence that has been quoted in the order dated 03.10.2011. Thus, it is clear that the sentence only laid the context of the subsequent narration of the above sequence of events. It is respectfully submitted that this sentence ought not to be taken out of context, and on any reasonable view of the matter, cannot be regarded as contemptuous.
The lawyer has responded to this by saying it is important to look at everything in context, and if one does it should be clear that these words do not send any inappropriate signal out to readers.
Legal issues
It was argued before the tribunal that all the comments for which the tribunal had raised concerns were 'fair comment', permissible under Bangladesh law as set out in the two appellate decisions relating to a contempt case involving an article published in the newspaper Amar Desh. The arguments in a nutshell are stated below.
28. That it is submitted that the Hon’ble Appellate Division in its most recent judgment on the question of contempt (in Contempt Petitions Nos. 5 and 12 of 2010), copies of which are enclosed as Enclosures 4 and 5, clearly held that:In the hearing of 27 November, one of the tribunal judges suggested that we were quoting selectively from these appellate division rulings. We argued, on 1 December, though the supplementary response, that this was not the case.
a. Fair criticism of the judicial process is allowed so as to enable Courts to look inward into the correctness of their own proceedings:
b. As part of determining whether or not an article contains fair criticism, the Court must consider the rationality and soberness of the article as well as whether it is written in good faith and the public interest is served.
c. In determining whether or not something is written in good faith and in the public interest, the interests of justice require consideration of the surrounding circumstances, including the knowledge of the writer in the field and the intended purpose sought to be achieved, and the greater the knowledge that the writer has in the field, the less likely an article that person has written is considered contempt.
29. That it is submitted that the relevant case law that supports these contentions are as follows:
i. In the judgement and order dated 11.10.2010 delivered in the case of Riaz uddin Khan Advocate and another vs Mahamadur Rahman and others, being Contempt Petition No. 12 of 2010 (unreported), Justice Sinha held at page 30 that: ‘A fair criticism of judicial proceedings or courts is no doubt permissible so as to enable the court to look inward into the correctness of the proceedings and the legality of the order… However a journalist cannot be allowed to make reckless criticism of the courts and the judges by abusing the process of the court.’ (emphasis added)
ii. Justice Sinha, in the same case, then quotes the following dicta approvingly from the Indian case of EM Shankaram Namboodiripad –vs- T. Naryanan (1970) 2 SCC 325: ‘All criticisms of the judiciary must be strictly rational and sober and proceed from the highest motives without being coloured by any partisan spirit or tactics. … It was reiterated that the judiciary cannot be immune from criticism. But when that criticism was based on obvious distortion or gross misstatement and made in a manner which seems designed to lower respect for the judiciary and destroy public confidence in it, it could not be ignored.’ (emphasis added)
iii. In the earlier judgement dated 10.08.2010 in the case of Raiz uddin Khan Advocate and another vs Mahamadur Rahman and others, being Contempt Petition No. 05 of 2010 at page 75 (unreported), Justice Sinha held that: “A fair criticism of the conduct of a Judge may not amount to contempt if it is made in good faith and in public interest. The Courts are required to see the surrounding circumstances to ascertain a good faith and the public interest including the person who is responsible for the comments, his knowledge in the field regarding which the comments are made and the intended purpose sought to be achieved. If one having sufficient knowledge on the subject, such as a lawyer, a retired Judge, a teacher of law and an academician may make fair criticism and the Court in such case will be able to ascertain a good faith with the comments, …’ (emphasis added)
iv. In making this ruling Justice Sinha referred to the judgment of Justice Sethi of the Indian Supreme Court in Suo Motu Contempt Petition (CRL) No 10 of 2001 (involving the noted writer Arundhati Roy), as follows: “As already held, fair criticism of the conduct of a judge, the institution of the judiciary and its functioning may not amount to contempt if it is made in good faith and in public interest. To ascertain the good faith and the public interest, the courts have to see all the surrounding circumstances including the person responsible for comments, his knowledge in the field regarding which the comments are made and the intended purpose sought to be achieved. In Dr. D.C. Saxena’s case (supra) this Court dealt with the case of Shiv Shankar by observing: “In P.N. Duda v. P. Shiv Shanker [1998 (3) SCC 167] this Court had held that …In a democracy judges and courts alike are, therefore, subject to criticism and if reasonable argument or criticism in respectful language and tempered with moderation is offered against any judicial act as contrary to law or public good, no court would treat criticism as a contempt of court”.
30. That it is further submitted that established case law provides that the test for contempt requires that a statement must be considered in light of the entirety of the article or speech in question, and cannot be taken out of the context (see P.N. Duda vs V.P. Shiv Shanker and others [1988 SCR (3) 547 at p.575 (“As we have mentioned before the speech of the Minister has to be read in its entirety.’ and holding that although considering, ‘some portions of the speech the language used could have been avoided’ (p.577) when read in its ‘entirety’, the speech was not contemptuous).
31. That in the context of the above case law, it is submitted that paras (a) and (b) of the Article, when read in the context of the ‘entirety’ of the Article, clearly indicate that these are not criticisms of the Hon’ble Tribunal, but simply reflect an accurate account of the views held by a section of people within Bangladesh that have already appeared in the press, and draws attention to them so that the Hon’ble Tribunal may consider taking appropriate measures to dispel such views.
32. That it is also submitted that the Hon’ble Tribunal may consider that the comments in para (c) and (d) of the said Article amount to no more than ‘fair criticism’ of the judicial process, and may serve to assist the Hon’ble Tribunal to look inward into the ‘correctness of [its] proceedings and the legality of [its] order’ and that they are based on rational arguments and are written in rational, sober and measured language.
26. It is respectfully submitted that the judgments do not contain contradictory observations – and the observations of the general test for contempt as described by Mr. Justice Sinha on pages 26 to 36 and on pages 52 to 75 are conditional on the principles of fair comment and criticism which Mr. Justice Sinha then sets out on page 75, 76 and 93 to 97. It is our contention that Mr. Justice Sinha’s definition of contempt on page 31 - ‘contempt of court may be said to be constituted by any conduct that tends to bring the authority and administration of the law into disrespect or disregard or to interfere with or prejudice parties litigants or these witnesses during the litigation’ - must be assessed in light of the principles of fair comment.At the second hearing on 1 December, the lawyer also read out this extract from page 93 of the first appellate division case:
27. It is respectfully submitted that this understanding is reflected from a reading of the judgement. On page 37 to 58, Justice Sinha analyses the article alleged to be contemptuous in that particular case and concludes that there is contempt. He states: ‘If we closely read the article there is no doubt that it was published not only to undermine the authority of the highest court of the country but also an attempt was made to damage the image and impartiality of this court. The attack was made against a learned judge of the highest court questioning his impartiality, the caption was focuses in indecent language …’ He then subsequently looks at whether the article could be deemed to fall within the principles of fair comment and comes to the conclusion that they do not. It is submitted that the judgment of the Hon’ble Appellate Division is in no way contradictory, and is entirely consistent in its approach.
As regards criticism of judiciary, it is to be looked into whether an attack is malicious or ill intention which is always difficult to determine. But the language in which it is made, the fairness, the factual accuracy, the logical soundness of it, the care taken in justly and properly analyzing the materials before the maker of it are important consideration. The Court is not concerned more which reasonable and probable effects of what is said or written than with the motives lying behind what is done. V.R. Krishna Iyer,J. in S. Mulgaokr (ibid) formulated some rules. It is opined, the first rule in this branch of contempt power is a wise economy of use by the Court of this branch of its jurisdiction. The Court will act with seriousness and severity where justice is jeopardized by a gross and/or unfounded attack on the Judges, where the attack is calculated to obstruct or destroy the judicial process. The Court is willing to ignore, by a majestic liberalism, trifling and venial offenses – the dogs may bark, the caravan will pass. The Court will not be prompted to act as a result of an easy irritability. Much rather, it shall take a noetic look at the conspectus of features and be guided by a constellation of constitutional and other considerations when it chooses to use, or desist from using, its power of contempt.
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