Ten key things to know about the contempt application

These are main points relating to the application

1. On 19 February 2014, an application was filed with the International Crimes Tribunal 2 by a lawyer, claiming that three posts on this blog (which contains  a total of over 840 posts in total) were in 'contempt' of court. On 20 February, the tribunal passed an order stating:

'The applicant appears to have brought the application contending that the opposite party, Mr Bergman, made criticism on sub-judice proceedings and also he did post judgement criticism intending to create controversy and malign the authority and jurisdiction of the tribunal. 

Having regard to submission and essence and contents of the alleged criticism circulated by the opposite party in his own blog, we consider it expedient to ask David Bergman to explain the criticism allegedly he made in his personal blog on 11.11.2011 and 28.1.2013. 

Therefore Mr Bergman is directed to explain the criticism he circulated in his own blog, either in person or through his lawyer on 06..03.2014'

It should be noted that this is not a conventional 'show cause notice' where a person is asked to explain why particular action should not be taken against him or her in relation to a particular matter. It is simply an order asking for explanation. Presumably, the tribunal could subsequently issue a show cause notice.

2. One of the posts alleged to be contemptuous was published on 11 November 2011, over two years ago. The other two posts were published in January 2013, over one year ago. Since the publication of the January 2013 posts, there have been over 200 posts published on this blog, none of which were subject to criticism in the application.

3. The application is made under section 14(4) of the International Crimes Tribunal which states:

A Tribunal may punish any person, who obstructs or abuses its process or disobeys any of its orders or directions, or does anything which tends to prejudice the case of a party before it, or tends to bring it or any of its members into hatred or contempt, or does anything which constitutes contempt of the Tribunal, with simple imprisonment which may extend to one year, or with fine which may extend to Taka five thousand, or with both. 

4. The application seeks my punishment for contempt, as well as more worryingly an order to close the blog and to stop me writing about the tribunal in any 'worldwide website'. So it seeks the following order:

'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 should be noted that this order is being sought on the basis of the applicant's claim that only 3 out of the 840 posts are contemptuous, with the most recent post which it criticises published over one year ago. The applicant has not criticised any one of the over 200 posts in the last year. Nonetheless, the applicant seeks to stop the blog and my writing on the ICT.

5. The Bangladesh appellate division in its previous judgments has made it clear that fair criticism of judicial orders is permitted. So, 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 (Contempt Petition No. 12 of 2010 (unreported)), Justice Surendra Kumar Sinha stated 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…'

In an earlier judgement dated 10.08.2010 in a related case (contempt Petition No. 05 of 2010 at page 75 (unreported)), Justice Sinha also 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.

6. All commentary about the tribunal in this blog falls within the fair criticism description as articulated by Justice Sinha, and in no way, 'tends to bring it or any of its members into hatred or contempt' as would be required by section 11(4) of the ICT Act 1973.

7. The post which is criticised the most in the application is the one published on 11 November 2011, and titled: 'Sayedee indictment: 1971 deaths' and can be accessed here. This is one of a number of articles published at that time looking at different aspects of the Sayedee charge framing order (i.e indictment). In the charge framing order, the tribunal stated as part of its background description, that '3 million' people were killed in the war. The post is an analysis of the evidential basis of the 3 million figure and an analysis of other estimates. It starts by saying:

'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 articles then goes on to look, in some detail, about where the '3 million figure' originated and what research had been done on estimating the numbers that had died in the 1971 war.

There is simply nothing stated in this post which could by any reasonable interpretation be deemed to be contemptuous of the tribunal. It appears that the applicant, in its focus on this particular post seeks to stop any discussion of any kind that raises questions about the accuracy of the estimate that 3 million people were killed in 1971 - even though no research has been undertaken that substantiates that figure.

8. The other two posts that have been criticised in the application relate to comments made about the judgment of the in-absentia trial of Abul Kalam Azad. One was titled, 'Azad judgement analysis 1; 'in-absentia' trials and defense inadequacy' and the other one was titled, 'Azad Judgment analysis 2: Tribunal assumptions'.

These two posts contain fair, accurate and constructive comment on the tribunal judgement. To read about which parts of these two posts the applicant considers to be contemptuous, see here

9. The application filed in the international crimes tribunal is a direct threat to freedom of comment about the international crimes tribunal. It seems to wants to stop any critical commentary about the tribunal - however fair, constructive, or accurate it may be.

10. The application refers back to a previous ruling in the International Crimes Tribunal-1 relating to an earlier application regarding an allegation against me for contempt of court. To read about this ruling, see this.

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To see further on this:

1. Initial thoughts on contempt application: what Bangladesh law says criticism of judicial rulings

2. A consideration of the substantive issues in the application: The numbers of 1971 war dead

3. A consideration of the substantive issues in the application: The trial of Kalam Azad

4. An attempt to clamp down on critical commentary