On 19 February 2012, the tribunal gave its ruling about whether or not it would initiate contempt proceedings in relation to an article I had written in the newspaper, New Age. Nearly five months earlier in early October 2011, the tribunal had issued a show cause notice on myself, the editor and the publisher asking us to explain why criminal proceedings should not be instituted.
The full copy of the 19 February order is set out in a separate post
In the order, the tribunal trashed the article, holding parts of its 'highly contemptuous', but then decided not to initiate proceedings against either me or the editor of the New Age upon a consideration of our respective backgrounds, while exonerating the publisher of the New Age as he had no prior knowledge of the article before its publication.
In light of the current legal and political environment in Bangladesh, I have thought long and hard about how to respond to this order and have decided not to proceed with a lengthy critique, but just to highlight one key issue about this order.
While I am grateful that the tribunal decided not to initiate proceedings, the 22 page ruling fails to mentioni many important arguments made on my behalf both in writing and orally in court about why passages in the article in question were not in contempt.
In this regard, one may recall that I have written previously (see here, for example) about how the tribunal has in the past, when giving its pre-trial hearing orders (involving those accused of 1971 war crimes), often simply ignored arguments made by the defence. [Nb: since the tribunal has not raised any concerns about that particular article, one must assume that commenting on the lack/inadequacy of reasoning in tribunal orders is not a matter that in itself can result in contempt proceedings.]
In relation to the New Age case, I would argue that had the tribunal actually dealt with these arguments (the ones that it did not expressly deal with), it is not easy to see how it would have come to the conclusions that it did. If, however, the tribunal had responded to/engaged with our arguments and continued to come to the same conclusions as it did, then at least we would know why the tribunal did not consider that the points that we had made were sufficient and credible.
I will leave it to others to consider whether this matter issue raises wider questions about the decision making processes at the tribunal.
I was going to do a long post setting out in detail what arguments the tribunal did not engage with, but then I realised this would in effect mean simply repeating the arguments that have already been summarised in previous posts here and here.
So instead, here is a quick summary of the pertinent arguments made by us, in written and oral arguments, which the tribunal did not consider in its written order.
It is notable that the decision of this order cannot be appealed to any court in Bangladesh; the International Crimes (Tribunal) Act 1973's provisions only allows an appeal for a conviction for offences under section 3 of the Act which deal with international offences. So other than challenging the constitutionality of the provision that allows the tribunal to deal with contempt, there is no route to question this decision.
The full copy of the 19 February order is set out in a separate post
In the order, the tribunal trashed the article, holding parts of its 'highly contemptuous', but then decided not to initiate proceedings against either me or the editor of the New Age upon a consideration of our respective backgrounds, while exonerating the publisher of the New Age as he had no prior knowledge of the article before its publication.
In light of the current legal and political environment in Bangladesh, I have thought long and hard about how to respond to this order and have decided not to proceed with a lengthy critique, but just to highlight one key issue about this order.
While I am grateful that the tribunal decided not to initiate proceedings, the 22 page ruling fails to mentioni many important arguments made on my behalf both in writing and orally in court about why passages in the article in question were not in contempt.
In this regard, one may recall that I have written previously (see here, for example) about how the tribunal has in the past, when giving its pre-trial hearing orders (involving those accused of 1971 war crimes), often simply ignored arguments made by the defence. [Nb: since the tribunal has not raised any concerns about that particular article, one must assume that commenting on the lack/inadequacy of reasoning in tribunal orders is not a matter that in itself can result in contempt proceedings.]
In relation to the New Age case, I would argue that had the tribunal actually dealt with these arguments (the ones that it did not expressly deal with), it is not easy to see how it would have come to the conclusions that it did. If, however, the tribunal had responded to/engaged with our arguments and continued to come to the same conclusions as it did, then at least we would know why the tribunal did not consider that the points that we had made were sufficient and credible.
I will leave it to others to consider whether this matter issue raises wider questions about the decision making processes at the tribunal.
I was going to do a long post setting out in detail what arguments the tribunal did not engage with, but then I realised this would in effect mean simply repeating the arguments that have already been summarised in previous posts here and here.
So instead, here is a quick summary of the pertinent arguments made by us, in written and oral arguments, which the tribunal did not consider in its written order.
- evidence in the form of contemporaneous notes and a subsequent news report that in its order of 18 August, the tribunal read out a list of 20 witnesses upon which the tribunal said that it had taken cognisance against Sayedee;
- that the tribunal had omitted mentioning the passage relating to these 20 witnesses when it finalised its written order;
- that the tribunal expects journalists to rely on its oral orders, which are usually - and on this occasion were - read out in court sufficiently slowly that they can be noted verbatim. Copies of the written orders are not available to journalists or the public;
- evidence that if these 20 witnesses are cross checked with the offences to which they were linked (in charge-framing hearing), it was clear that cognisance of a number of offences would have been taken on the basis of one witness; and that even if it is assumed that all the witness statements were taken into account by the tribunal in taking cognisance, there are seven offences, for which evidence of just one witness statement was the basis of taking congisance;
- that whilst the law of cognisance in the ordinary courts of Bangladesh does not require any evidential threshold, in the ICT rules of procedure it requires a 'prima facie' case. So there is a significant difference in what is required in normal Bangladesh practice and by the ICT rules of procedure;
- that the ICT rules make it clear that cognisance has to be taken of each offence individually; that is to say that for each offence the tribunal has to be satisfied there is a 'prima facie' case before it can take congisance;
- so that for each offence, the tribunal needs to consider that the prosecution evidence is sufficient to satisfy all the elements of the offence of crimes against humanity.
- expert written evidence from an international lawyer, with wide experience of prosecuting offences of crimes against humanity in international criminal courts, supported the statement that: '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.' He said: '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.'
- that there was indeed a 'separate issue about whether the Tribunal even had in its hand all the witness statements when it took cognizance' as evidenced by the fact that the defence lawyers themselves raised this very point through a review application at the tribunal which was heard in court.
- that the article set out the exact chronology of this issue about what statements it did or did not have and how the matter was dealt with by the court, and ended up by quoting what the tribunal said in its order with the following words: 'In its order, the tribunal stated that although it did not have the hard copy volume of the statements it did "consider the CDs and DVDs’ provided on July 11 which contained ‘all the documents."’
- evidence in the form of new cuttings and opinion polls, about the views of 'many people' about the tribunal.
It is notable that the decision of this order cannot be appealed to any court in Bangladesh; the International Crimes (Tribunal) Act 1973's provisions only allows an appeal for a conviction for offences under section 3 of the Act which deal with international offences. So other than challenging the constitutionality of the provision that allows the tribunal to deal with contempt, there is no route to question this decision.
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