Fair comment on judicial proceedings 2

I have already made some initial comments about the contempt application filed against me, but the  hard copy of the application has now been kindly provided to me by Barrister Mizan Sayeed on the instruction of the plaintiff in the application, Abul Kalam Azad who is another High Court lawyer.* 

Key prayer: closing down website, stop writing
Before looking at the substance of the application, it is important to note that - other than seeking my punishment - the plaintiff has this 'prayer' to the court.

'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 is this prayer which suggests the real motive behind this application - to stop any kind of commentary about the tribunal from a critical perspective. People may not agree with the commentary in the blog - and in some parts it is certainly quite trenchant - but when it does include critical comment, it comes within the fair criticism of judicial orders which Bangladesh law provides. As stated in my earlier post, the appellate division stated in two related 2010 cases 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'

'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.' 

It should be noted that out of 916 posts published on the blog, the application only argues that three posts on this blog are contemptuous, with the most recent post that it criticises published over one year ago - since which I have published over 200 posts, none of which are criticized. Yet, the applicant seeks the closure of the blog.

Substance of application: 1971 death numbers
Here I will comment on the first of the three posts which the applicant argues is contemptuous. It is titled: Sayedee indictment - 1971 deaths. (The other two alleged contemptuous posts are considered in a separate post.)

This post, which was published over two years ago on 11 November 2011 was one of four posts analysing the charge framing order against Sayedee. One has to wonder, of course, why all of a sudden a post published two years ago is suddenly considered to be worthy of a contempt application

I really would encourage everyone to read this post which I suggest is a measured, detailed and objective analysis of how many people were killed in 1971. It seems to me inconceivable that the post could be deemed in any way to be in contempt of court.

This is how the post starts:

The introduction to the 3 October order stated, in its historical introduction that '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...'.

This statement by the tribunal provides an opportunity to look at the question of how many people died as a result of the 1971 war - a controversial issue within Bangladesh. In certain nationalistic circles, to raise what I consider to be legitimate questions about the 3 million figure can draw strong emotions. 

The tribunal in its order does not provide or refer to any evidence or material on record to support the figure of 3 million, treating it as a historical fact.

Although this number is treated as though it is an official government figure, there is as far as I can see little evidence, if any, to support it.

It is not uncommon of course for there to be widely different estimates of the numbers who died as a result of a war. People involved in any conflict have reasons to either over or under estimate the numbers who died. Moreover, it is difficult, in any post conflict situation, to make accurate estimates of the numbers of dead, as even recent wars in Iraq, for example, testify. Sarmila Bose's criticism in her recent book (see below) of the failure of the Bangladesh government after the war to have undertaken proper studied that would have provided more reliable estimates of the number who died do seem rather unfair. 

Although writing about this subject is like sailing in perilous waters, I think it is fair to make the following points on this question.

The post then analyses where the 3 million figure came from and refers, as part of its detailed analysis to the biography (not 'autobiography', as the post in fact states!) of Sheikh Mujib's first foreign secretary who thought that Mujib had mentioned the figure of 3 million, which he considered to be a 'gross over statement' from an article published in Pravda. The post states:

Significantly, Sayyid A Karim, Bangladesh’s first foreign secretary, supports the contention that Mujib picked the figure of 3 million up from these sources, when he wrote in a footnote in his autobiography of Sheikh Mujib that, 'As for the number of Bengalis killed in the course of the liberation war, the figure of 3 million mentioned by Mujib to David Frost in January 1972 was a gross overstatement. This figure was picked up by him from an article in Pravda, the organ of the communist party of the Soviet Union.’

The article then looks at all the other estimates of the numbers of those who died in 1971. The post ends  by stating the following:

'Does it really matter how many people actually died in 1971?

It is perhaps important to note from the beginning that the actual number of deaths is not relevant to whether the particular accused at the International Crimes Tribunal have committed the offences of genocide or crimes against humanity to which they have been accused.

Moreover, whether 3 million, 300,000 or indeed even 30,000 were killed, the number of deaths in 1971 was very very large. And no-one can really deny that. There is enough substantiated evidence to suggest that whatever the exact number of deaths, a very large number of civilians were killed. 

Yet, at the same time, arguably it is important for the sake of accuracy that people do not claim that a particular number of people died - whether it is too high or too low - which has no basis at all in the evidence. 

As a result, coming back to the tribunal's remark in its 3 October order about the number who died, it may well have been preferable for it not to have mentioned these particular figures. Maybe the prosecution will provide evidence to support this figure in the course of the trial but, as yet, it has not done so.

People may disagree with the analysis contained in the blog - though I have not in fact seen any substantive critique of the points made in it - but how is this in contempt of court?

Nonetheless this is what the application against me says about this post:

'The contemnor ... made relentless efforts throughout the article to justify that the tribunal was absolutely wrong in mentioning the number of 3 million deaths and the number of 200,000 women raped in 1971 with reference to various unsupported, inconsistent and contradictory sources. From the comments made by the contemnor it is clearly apparent that he purposely and deliberately did so to make the observations and orders of the tribunal questionable. If the content of the article is considered in its entirety, the definite and conclusive message passed to the readers is that the core objective underlying the article is basically to malign the tribunal in the eyes of right thinking people of the society. In other worlds, the contemnor by his writing deliberately attempted to make the observations of the Hon'ble Tribunal questionable amongst the members of the public.   

It is difficult to know what the applicant means when he says that blog 'refers to various unsupported, inconsistent and contradictory sources' since the point of the post is to consider the different estimates that have been made about the numbers of those who died. And what is the basis for saying that the  'core objective underlying the article is basically to malign the tribunal in the eyes of right thinking people of the society?' No that was not the objective of the post. It was to take the number of 3 million,  and consider what evidence there was to support this estimate in an objective and dispassionate manner. Nothing more, nothing less.

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* Apparently, according to Sayeed, there are at least five lawyers who have have been involved in the application. Apart from himself and Azad, there are the lawyers Enamul Kabir (Emon), Muksedur Rahman, and a female lawyer called 'Sheila'.