Fair comment on judicial proceedings 3

This post continues with an examination of the contempt application against me which is to be considered by the International Crimes Tribunal later this afternoon.

As already mentioned, the application only refers to 3 out of over 840 posts as being 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. Nonetheless the application seeks the closure of the blog and an order preventing me from writing about the tribunal anywhere in the world.

I have already written why there is no justification to argue that one of three of the posts, written over two years ago concerning the number of dead in 1971 is not contemptuous.

Here I will look at the other two posts. I encourage you to read them in full, as by doing so it is clear that they are fair an constructive comment of a judicial order which is permitted in Bangladesh law.

Azad judgement analysis 1; 'in-absentia' trials and defense inadequacy

The second post which the applicant considers to be contemptuous is the first of two parts of  on analysis on the judgement issued by Tribunal 2 on Abul Kalam Azad (Bacchu), a trial that took place in absentia. This analysis was written over a year ago on 28 January 2013 - and it is difficult to see how suddenly it should be of interest as a matter of contempt.

The application states that I have in this post 'raised direct allegation against the tribunal' and then quotes this passage from my post:

This first analysis of the Azad trial/judgment looks at the question of 'in absentia' trials and whether or not there was an adequate defense give to Azad (who had apparently absconded as soon as he heard that he was about to be arrested). 

It summary this analysis argues that, (a) in contradiction to what is stated in the judgement, there is no international legal support for the kind of in absentia trial that took place with Azad; and (b) linked to this, the defense to Azad provided by the state defense lawyer (who by-the-by - in an interview admitted that he is a supporter of the governing party, the Awami League, and used to be a member of its student wing) was seriously defective.

It is not stated in the application why this passage shows contempt. It is, in my view simply fair comment and my full argument is explained in detail subsequently in the post.

2. Azad Judgment analysis 2: Tribunal assumptions

The third post which the applicant considers to be contemptuous concerns the second part of an analysis Abul Kalam Azad (Bacchu) judgement

The application first refers to the final section of the analysis which states:

Numbers of dead
This issue is more of an aside .... and not really relevant to the judgement itself 

The tribunal asserts that 'Some three million people were killed, nearly quarter million women were raped ... during the nine-month battle and struggle of Bangalee nation.' (para 3) 

In doing so, it repeats what was stated in the first indictment passed by Tribunal 1 in relation to the Sayedee case.

There is however no legitimate evidence to support the contention that such a number died or were raped. The only population study that has attempted to assess the numbers of deaths during the 1971 suggest that there were about 500,000 deaths arising from the war, with a large proportion of these resulting from disease. The court did not hear any evidence on the issue of 'numbers' 

This issue is discussed at some length here [referring back to the post discussed above]

The point about bringing this matter up is not to undermine the nature of the atrocities committed during the war, or to suggest that the war did not result in a very high level of losses. It is simply to point out that if the tribunal is supposed to be an adjudicator of truth, it would have been appropriate for it to have dealt with the issue of the number of dead in a more judicial manner - rather than repeating a mantra that has little or no factual basis.' (emphasis added in application)

The applications then refers to this section in the post:

Making factual judgements without evidence
In the introductory section, the judgement makes a number of statements - which appear to be factual findings of the court. These are as follows: 

Para 10 states:
In the War of Liberation that ensued, all people of East Pakistan wholeheartedly supported and participated in the call to free Bangladesh but a small number of Bangalees, Biharis, other pro-Pakistanis, as well as members of a number of different religion-based political parties,particularly Jamat E Islami (JEI) and its student wing Islami Chatra Sangha (ICS) joined and/or collaborated with the Pakistan military to actively oppose the creation of independent Bangladesh and most of them committed and facilitated the commission of atrocities in violation of customary international law in the territory of Bangladesh. As a result, 3 million (thirty lac) people were killed, near about quarter million women were raped,about 10 million (one crore) people deported to India as refugees and million others were internally displaced. It also experienced unprecedented destruction of properties all over Bangladesh. 

Para 11 states:
The Pakistan government and the military setup number of auxiliary forces such as the Razakars, the Al-Badar, the Al-Shams, the Peace Committee etc, essentially to collaborate with the military in identifying and eliminating all those who were perceived to be sympathized with the liberation of Bangladesh, individuals belonging to minority religious groups especially the Hindus, political groups belonging to Awami League and other pro-Independence political parties, Bangalee intellectuals and civilian population of Bangladesh. Jamat E Islami (JEI), as an organization, substantially contributed in creating these para- militias forces (auxiliary force) for combating the unarmed Bangalee civilians, in the name of protecting Pakistan. 

Para 35 states:
Admittedly, during the period of War of Liberation in 1971 parallel forces e.g Razaker Bahini, Al-Shams, Al-Badar Bahini, Peace Committee were formed as auxiliary forces of the Pakistani armed force who provided moral supports , assistance and substantially contributed and also physically participated to the commission of horrendous atrocities in the territory of Bangladesh. It is the fact of common knowledge that thousands of incidents happened through out the country as part of organized and planned attack. Target was the pro-liberation Bangalee civilian population, Hindu community, pro-liberation political group, freedom fighters and finally the ‘intellectuals’. (emphasis added)

However, the court has heard no evidence on these matters - and in fact these are matters subject to adjudication in other cases before the tribunal. In particular, it is pretty strange for the tribunal to state, on the basis of no evidence that has been heard before it, that: (emphasis added in application)
- most of [Jamat E Islami (JEI) and its student wing Islami Chatra Sangha (ICS)] committed and facilitated the commission of atrocities in violation of customary international law in the territory of Bangladesh.
- the purpose of Razakars, the Al-Badar, the Al-Shams, the Peace Committee etc, was essentially to collaborate with the military in identifying and eliminating all those who were perceived to be sympathized with the liberation of Bangladesh
- Jamat E Islami (JEI), as an organization, substantially contributed in creating these para- militias forces (auxiliary force) for combating the unarmed Bangalee civilians
- parallel forces e.g Razaker Bahini, Al-Shams, Al-Badar Bahini, Peace Committee were formed as auxiliary forces. 

There may or may not be sufficient evidence to substantiate these conclusions - we have to wait and see the prosecution and defense evidence presented in the other cases to make a determination on that - but what is certainly true is that a trial judgement cannot just simply these things without having heard evidence from both sides and stating the basis of the conclusion. Moreover, of course, since Azad was not alleged to be a member of the Al-Badr or Al-Shams, and was not a member of the Jamaat - it remains entirely unclear why the tribunal considered it appropriate in this judgement to make such significant conclusions. (emphasis added in application)

And the application finally refers to this section of the post:

Pre-determining Azad's guilt?  

In the introductory section, prior to any discussion of the evidence against Abul Kalam Azad, Para 12 states the following about the accused 

He studied in Faridpur Rajendra College and was a close associate of Ali Ahsan Mohammad Mujahid, the then President of East Pakistan Islami Chatra Sangha (ICS). Till formal formation of Razaker force, Moulana Abul Kalam Azad @ Bachchu actively aided the Pakistani army as an armed member of volunteer Razakar Force formed in Faridpur in committing criminal acts alleged. He, during the war of liberation in 1971, assisted the Pakistani occupation force initially in the capacity of ‘Razaker’ and subsequently as chief of Al-Badar bahini of Faridpur. 

… On 21 April, 1971 he being united with the local anti liberation circle welcomed the Pakistani army in Faridpur district. He was a close associate of Pakistani army and actively and substantially assisted them as a potential member of Razakar (Volunteer) force in committing atrocities targeting the civilians and Hindu community and pro-liberation Bangalee people. In Faridpur, he was in charge of Razaker bahini which was equipped with rifles. (emphasis added) 

It is very odd to position these two paragraphs in the introduction of the judgement and prior to a discussion of the adjudication of the evidence. Unfortunately, it gives the appearance that the tribunal has pre-judged the accused. (emphasis added in application)

The application does not specifically state why the application is of the view these comments are contemptuous - but simply highlights particular text in bold.

These statements however all appear to be fair comments about the judgement, which - as stated above - is allowed in Bangladesh law.

Although, all of these statements are legitimate fair comment, I have nonetheless made a few edits to these two posts, which in no way changes the arguments made, in order to remove certain language that could be misinterpreted.

Previous contempt
The application refers repeatedly back to the previous contempt application against me. The final judgement and my own analysis of the tribunal's findings can be seen here