Analysis of the contempt judgement 8: Censorship on settled history

This is eighth in a series of articles analyzing the Tribunal's contempt judgement involving three articles in this blog. The full judgement can be accessed here

To see the index to the series of articles analysing the contempt judgement go here

It should be noted, at para 44 of this judgement, the Tribunal explicitly states that 'We always welcome post-verdict criticism',  and and at para 73, 'We of course do not disagree that even post judgment criticisms is permissible.' So I make these comments in that context.

This article looks at the tribunal judgement's ruling that aspects of the country's history cannot be commented on and written about from what the court understands to be 'settled history'. (Please also see   what the tribunal said about 'settled history' and the 1971 death numbers, here.)

The judgement states as para 122 and 123 the following:

The Appellate Division in disposing of the criminal review petitions [in the Molla case] reiterated acknowledging this settled history as below:

"All the above incidents took place when the people of the country were fighting against the occupation army of Pakistan for liberation of the country."

In disposing of the above petitions, the Appellate Division further observed:

"These offences were perpetrated in Bangladesh following the onslaught of ‘Operation Search Light’ from the night following 25th March, 1971 to 16th December, 1971, by the Pakistani occupation army and their collaborators after the declaration of independence of the country by late Sheikh Mujibur Rahman. There were wide spread atrocities like killing of three million people, rape, arson and looting of unarmed civilians, forcing 10 million people to take shelter in the neighbouring country, India."

The judgement then goes onto state:

In view of above, no space has been left to table the debate the death figure in 1971' and to question the war of liberation that was participated by the Bengali nation for the establishment of new State. Any one including the contemnor is thus obliged to keep the above observations made by our Apex court on 'settled history' in future. (emphasis added)

 Then at para 126 it states:

David Bergman has shown patent disrespect to our ‘proclamation of independence ‘ by uttering that ‘the Pakistan military used force to try to prevent the Awami League, whose supporters were Bengalis living in East Pakistan (today’s Bangladesh), from coming to power’. It was the Bengali nation who fought for their independence and self determination. Nobody living in the land of our motherland Bangladesh should have license to disrespect the sacrifice the nation paid in achieving independent Bangladesh, by expressing such unfounded, purposeful and prejudicial view (emphasis added)

Then at para 132

Therefore, the criticism made on the issue of ‘death figure in 1971’ though does not constitute any contempt, but it was not in the ‘public interest’ in any way and the attempt on part of the contemnor was not in ‘good faith’, we conclude. At the same time, condemning such malicious and prejudicial act we warn the contemnor not to repeat such criticism on historically settled issue. (emphasis added)

Two about these comments should be made

1. In relation to the allegation that I had 'patent disrespect' to Bangladesh's ‘proclamation of independence', see previous page here

2. The Tribunal judgement suggests that what the appellate division has stated in its judgment relating to Abdul Quader Mollah has become 'settled history' and therefore people cannot comment on or criticise it.

With respect, whatever the appellate division may or may not have said about the numbers of those who died in 1971 (without setting out the research on the matter) does not make it unquestionable. And the appellate division certainly did not seek to make that assertion in its judgment.

3. It should be noted that article 39 (1) of the Bangladesh constitution guarantees, 'Freedom of thought and conscience'. It states that 

(2) Subject to any reasonable restrictions imposed by law in the interests of the security of the State, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence–
(a) the right of every citizen to freedom of speech and expression; and
(b) freedom of the press,
are guaranteed.

There are no reservations in the constitutional article to allow prohibitions on freedom of speech on the basis of a claimed 'settled history'.