Did The Economist get it right?

Comment/Analysis

This article was first published in the South Asia Journal at this link

The Economist Magazine published a damning editorial last month on Bangladesh’s International Crimes Tribunal.

The editorial starts by saying that the Bangladesh’s tribunal had ‘fallen a long way short of Israel’s model of due process’ concerning its trial in 1961 of the Nazi leader Adolph Eichmannn. It then set out a string of criticisms about the tribunal in Dhaka, stating that ‘these are profound judicial failings, falling short not only of the standards of the Eichmannn trial but also of the requirements of Bangladeshi law. They contradict repeated government assurances that the trials would be models of judicial process.”

It goes on to argue that the ‘ostensible and laudable aim of these trials’ helping Bangladesh come to terms with its past has ‘been an utter failure’. It then criticizes ‘most Bangladeshis’ who it says ‘are cheering on the tribunal’s flawed proceedings’ with few seeming ‘to care a jot for due process’ and everybody thinking ‘that the defendants are getting their just deserts.’

It closes with the following paragraph: ‘The Economist has no sympathy for the views of Jamaat or its backers. But justice does not exist solely for those with a particular approved outlook. As the Eichmannn trial demonstrated, due process is essential to provide true justice to the victims of genocide. Eventually Bangladeshis will also come to recognize this and demand a proper accounting. But by then it will be too late. The war-crimes tribunal is poisoning the well from which Bangladesh will one day want to drink.’

A recent op-ed in Bangladesh’s The Daily Star about the editorial is very critical: ‘The piece is typical of a mercenary writer where he just pens something only because he has to do it,’ it says. ‘The ignorance of the analyst is so obvious that he must have taken it as granted that the prospective readers, mostly Bengalis all around the globe, are a bunch of ignorant people who will digest any garbage that comes from a weekly published from a Western capital.’ It goes onto say that, The Economist is so bent on discrediting the trial that it has presented mostly unsubstantiated and ridiculous assertions, reflecting its absolute ignorance of the history of Bangladesh’s birth and the misinformation fed by its clients.’

The criticism is obviously hyperbolic. But other articles in the Bangladesh media have been similarly critical. A government news agency article, widely printed in different newspapers, quotes the respected lawyer Dr M Zahir as saying, ‘The article appears totally motivated . . . these (allegations) are rubbish.”

Comparison with the Eichmann Trial
The Economist decision to compare the Bangladesh tribunal with the 1962 Eichmann trial in Israel is an interesting one. Bangladesh supporters of the tribunal processes/practices tend to use the 1946 Nuremberg trials as their standard by which to compare the current trials – in particular pointing to the fact that nearly 70 years ago there was no right to appeal. For them, since the 1973 Act has the right of appeal, and therefore an improvement on Nuremberg, no criticism is justifiable.

A trial that took place as long ago as Nuremberg shouldn’t, of course, be the template for one conducted in 2013. New standards have emerged, Bangladesh has signed up to international conventions which impose new obligations, and if there is any meaning to the Bangladesh foreign minister’s statements that the tribunal meets ‘all international standards’ (which she continues to utter at diplomatic exchanges), then one must look beyond Nuremberg. In any case, it is not at all clear, other than in the issue of the ‘right to appeal’ that the Bangladesh ICT comes out that much better than Nuremberg; whilst the 1946 trial was criticized at the time for many things (see the Economist editorial in October 1946, for example), there were no allegations of witness abduction or that of prosecution/tribunal collusion as there have been at the Bangladesh tribunal.

Therefore at first glance the Eichmann trial in the early 1960s could make a more interesting comparison – particularly because, like the Bangladesh tribunal, it was a national tribunal prosecuting international offences.

However, there are reasons why this may not be the case. Even though Israel was a relatively newly established country, it’s legal system in 1960 was more established and developed than that of Bangladesh’s now – which is replete with corruption, delays, politicization and inadequate resourcing. Comparing Israel’s criminal justice system in 1960 even with that of Bangladesh in 2010 is arguably not a fair one.

Another point about the Eichmann trial is that it is took place in a country without any political party supporting him. There was no Nazi party in Israel – and few if any Israeli citizens were supportive of Eichmannn or willing to be critical of the trial process. This is very different from Bangladesh – where two of the accused come from the main opposition party, the Bangladesh Nationalist Party and the other ten from its alliance partner, the Jamaat-e-Islami.

It was therefore always going to much easier for the Eichmannn trial to unify Israel – to succeed in a way in which The Economist claims the trial has not done in Bangladesh. If the Eichmannn trial had taken place in an Israel, where for example, the Nazi party remained a considerable political player, with three of its leaders ministers in a coalition government just five years before the trial – it is difficult to believe that the Eichmannn process would have been anywhere as smooth or unifying.

The third point about the Eichmannn trial is that it was not the perfect trial as implied by The Economist. The magazine alludes to the Nazi leader being ‘kidnapped’ but does not state that at the time this raised significant questions about the legality of the trial with The Washington Post editorial condemning Israel’s “jungle law” and The Christian Science Monitor equating Israel’s claims to those of the Nazis.

It is true that by the time the trial itself took place, Argentina and Israel had come to an agreement about the ‘kidnapping’, so that the court was able to argue that since ‘Argentina has condoned the violation of her sovereignty and has waived her claims, including that for the return of the Appellant, any violation of international law that may have been involved in this incident has thus been remedied.’ In addition, the Israeli court relied on Israeli legal precedents that the circumstances of his capture had no bearing on the legality of his trial. Nonetheless, one can imagine that The Economist would not be quite so obliging if the Bangladesh government sidestepped extradition and international laws and abducted Chowdhury Mueen Uddin or Ashrafuzzaman Khan, both under investigation for alleged war crimes committed during the 1971 war by the Bangladesh tribunal, from England and USA respectively.

The criticisms of the tribunal
The nub of The Economist’s piece is a number of criticisms of the Bangladesh international crimes tribunal. And here The Economist is on firmer ground.

The first criticism is that the government has interfered in the court’s deliberations. In the government news agency article, Dr M Zahir is quoted as saying, ‘What interference you are talking about? Had the government intended to interfere in the trial process they would not have constituted the tribunal and opt for a lengthy trial process . . . they (accused) could have been handled in other ways.”

Without going into too much detail, anyone who has read the Skype conversations between Justice Nizamul Huq Nassim and the ex-patriate lawyer Ziauddin Ahmed would realize that the government ministers, at the very least, had inappropriate contacts with the judges. These included seeking to dictate the sequence of judgments (with the obvious implication that they would be convictions) and forcing the resignation of one judge.

It is of course possible that in his conversations Justice Nassim was exaggerating or simply not telling the truth; that the things he tells Ziauddin are simply not true. And there is of course no other confirmation that the things Nassim said happened, actually did happen. Yet nonetheless, Nassim had no reason to lie about these things and none of the parties (other than Justice Jahangir) have specifically denied the specific claims made by the judge.

Secondly The Economist said that ‘Public discussion of the proceedings has been restricted.’ It is not entirely clear what The Economist is referring to here. Journalists are allowed into the tribunal and do report on it. The tribunal has been willing to use its very wide powers of contempt against journalists and papers and this certainly does inhibit critical journalism on the trials being published – but contempt powers are generally quite widely used by Bangladesh courts and so there is nothing special here. It is certainly true that tribunal registrar has at times hindered those linked to foreign observers from taking notes at the tribunal and that in addition to the contempt risks, few dare to write critically about the tribunal from an independent position for fear of being accused of being a Jamaati, and the social ostracism that will occur. However The Economist criticism is perhaps overplayed here.

The third criticism is the restriction on the number of defence witnesses. On this point, Dr Zahir is quoted by the government news agency as defending the restriction of witnesses. “The tribunal cannot and should not tolerate the defence’s effort to lengthen and upset the trial process by bringing witness after witness . . . The trial cannot go on for eternity,” he says.

However, allowing the defence to be given sufficient opportunity to present its case does go to the heart of due process in these trials.

And there is no doubt that the tribunal has for no apparent legitimate reason, restricted the number of defence witnesses that could come to the tribunal. In Delwar Hossain Sayedee’s case the prosecution had no limitations on the number of witnesses it could bring, and in fact brought 28 to court (which included seizure list witnesses and the investigation officers). Sayedee’s defence lawyers wanted to bring 48, but were only allowed a maximum of 20 – and in fact the tribunal stopped the defence case when it had only brought 17 witnesses. The tribunal also refused to issues summons for defence witnesses. The tribunal gave no clear reasons for either of these decisions.

In Abdul Quader Mollah’s case the prosecution again had no restrictions on witness numbers, and brought 12 witnesses to court. The defence had at the beginning of the trial given a list of 965 witnesses – clearly a ridiculous number. After the prosecution had completed its evidence, it applied to the tribunal for an order limiting the number of defence witnesses to ‘not more than 3 or 4’. The defence responded by saying it would reduce the number of witnesses it wished to call to the Tribunal to a reasonable number. In its order, the tribunal initially agreed to four defence witnesses being called, but following pleas from the defence increased the number to just 6.

The Mollah case was dealt with by a different Tribunal than the one dealing with the trial of Sayedee, and this court gave reasons for its decision – that in its view the defence was only going to need witnesses as part of its ‘alibi’ defence and six witnesses were sufficient. The problem with this argument is that the tribunal, when making this order, had absolutely no knowledge of what the defence witneses were or were not going to say and so had no basis to making that claim. (Indeed the tribunal was proved wrong as even amongst the six witnesses, there were also people that were not ‘alibi’ witnesses.) Moreover, even if the defence was only going to bring ‘alibi’ witnesses, how before any of the witnesses had come to testify could the tribunal know that six was sufficient?

In Golam Azam’s case the tribunal has closed the defence case after hearing only one witness. Thedefence had asked for a weeks adjournment to be able to allow them to call more witnesses, claiming that the Shahbag protests had scared many people from coming to give evidence. The tribunal rejected the application – having also previously refused to issue summons to allow two expert witnesses to come from abroad.

And in Kalam Azad’s in absentia trial, the state appointed defence lawyer did not call any witnesses.

The systematic restriction in the number of witnesses whom the Tribunal allow the defence lawyers to call is perhaps one of the most serious due process defects in the trials.

The Economist, next says that one witness ‘was even kidnapped on the steps of the court.’ This refers to the alleged abduction of Sukhranjan Bali, whose brother Bishabali was killed in 1971, and whom it is claimed had agreed to give evidence on behalf of Delwar Hossain Sayedee. Evidence strongly suggests that such an abduction by law enforcement officers did happen – and so the Economist is fair to make that comment. However since there remains no conclusive evidence, The Economist would have been truer to the record to have added the word ‘alleged.’ A related concern, on which the paper does not however comment, is the lack of interest on the part of the Tribunal to investigate the allegation, and its consideration of how this incident may affect the trial.

The UK magazine then goes on to comment on the judges who decided the Sayedee’s case. It states that ‘the presiding judge resigned and the death sentence was handed down by three men who had not heard all the witnesses.’ The Daily Star op-ed denies this and says ‘In fact, two of the three judges heard all the witnesses and the third judge heard both the prosecution and the defense arguments all over again.’

It is true is that none of the three judges heard all the evidence. Justice Anwarul Huq, appointed at the end of March 2012, heard all the defence witnesses, but none of the prosecution witnesses – except for the cross examination of the investigation officer. Jehangir Hossain appointed at the end of August 2012 had not heard any of the prosecution evidence. And Justice ATM Fazle Kabir judge had only heard the prosecution evidence – though not the cross examination of the investigation officer. So again, here The Economist is correct. In such a situation a retrial would arguably have been the right response.

The final criticism from The Economist refers to the Abdul Kalam Azad trial where the paper says that he was represented by a lawyer who did not have nearly enough time to prepare a case which ended in a death sentence. The Economist criticism here is actually the least of the problems with this trial! It was an in absentia trial and the state appointed lawyer had been a member of the governing ruling party in his youth, who admitted in an interview that he undertook no investigations on behalf of his client and did not even go to the alleged crimes scenes. In fact, the lawyer himself felt that he was given sufficient time to prepare himself.

The Economist is far from comprehensive in its criticism – failing for example to mention the systematic deceit of the prosecution and the investigation agency in the Sayedee case over its submissions to the tribunal about the presence of witnesses in its safe custody house.

More intriguingly, The Economist did not mention on its list perhaps the most serious concern with the tribunal – which it had in part exclusively revealed in a two page spread in December 2012 – which was the collusion between the prosecutors and Justice Nassim, who was chairman of one of the tribunals. It also showed how the judge was also working closely with an expatriate lawyer whom he knew was at the same time advising the prosecution.

It is often said by uncritical tribunal supporters that criticisms of the tribunal like the ones set out above are not relevant since the tribunal does not need to meet ‘international standards’. However, the question of 'international' standards is really a distraction since the concerns involve considerations at a far more basic level. One does not need to raise the language of international standards to appreciate that collusion between the prosecutors and a judge is wrong, that failing to allow defence witnesses to come to court is not fair, and the alleged abduction of a key defence witness by law enforcement agents from directly outside the tribunal raises serious questions about the role of the state in the trial.

Responding to ‘flaws’
The Economist editorial says that most Bangladeshis are ‘cheering on the tribunal’s flawed proceedings’ and ‘few seem to care a jot for due process.’

It is certainly true that, with very few exceptions, the country’s civil society establishment – along with anyone who supports the Awami League, or is a strong supporter of the war crimes tribunal or just hates the Jamaat-e-islami – either do not accept that there are any flaws in the tribunal or do not consider that any of the flaws are particularly significant, or that if there are any flaws, think that the overall purpose of bringing to justice those who died in 1971 overrides them. The general view, as The Economist says, is that the ‘defendants are getting their just deserts’ and due process arguments are simply strategies on the part of the accused to try and wriggle out of their guilt.

In its criticism of this attitude, what The Economist perhaps fails to appreciate is some of the reasons for these views; a desperate desire to see some kind of justice for the hundreds of thousands who lost their lives at the hands of the Pakistan military and their collaborators; long years of seeing those who supported the Pakistan military in 1971 rise to positions of power; a criminal justice system that cannot be trusted and constantly allows the ‘powerful’ and ‘influential’ to escape justice on technicalities; a view that the country could not organize any better kind of trials; knowing that this is the one and only chance for accountability; and a desire for the end of the influence of fundamentalist Islamic politics.

These may not ultimately be anywhere near good enough reasons to turn a blind eye to flawed trials – particularly when the world is watching, and as suggested by The Economist where they could initiate cycles of revenge and retribution – but these explanations do need to be taken into account when criticizing Bangladesh society’s response. Coming back to Israel, was their widespread concern and criticism in the country about the kidnapping of Eichmann? I don’t think so

What ultimately this is all about is the inherent difficulty in holding ‘war crimes’ trials within a country where the government has a clear political interest in the outcome of the trial, where the general population have been seriously victimized during the war and emotions are febrile, where the assumption of the accused’s guilt is strong amongst a very significant section, and where the independence of judges is under huge strain.

International criminal lawyers and activists always used to think that the goal was to bring justice as close to the people, to remove it from tribunals in The Hague and, bring it closer to the place where the crimes took place. Unfortunately, the Bangladesh tribunal – and in fact, though to a lesser extent, the Eichmann trial – show that this is far from the best approach if a fair process is considered at all important.

What offense did Amar Desh commit?

I have previously criticized Amar Desh's decision to publish the whole unedited Skype conversations between the former tribunal-1 chairman, Justice Nassim and an expatriate Bangladesh legal academic, Ziauddin Ahmed. It failed to solely focus on the material that was in the public interest (which was arguably justifiably published) and instead also publishing those parts which were private or otherwise potentially defamatory of others (which should not in any situation have been published).

One understands that unlike the Economist (which published a minimalist article), Amar Desh does not have the same level of (or indeed any?) independent legal advice to help it make such decisions; and that there is not the same regulated environment in Bangladesh as there is in England which has the Editors Code (i.e there is no clarity in the law about what can and cannot be published); and in addition there was some level of urgency to publish. Yet in my view this is no defense to the publication of unedited transcripts.

But the paper and the editor appear to be facing the prospect of criminal prosecution. What offense may have ben committed by the editor?

Sedition?
Amar Desh and its editor is now under criminal investigation, apparently - according to press reports - for the offense of 'sedition', following a complaint made on 13 December 2012 filed in the chief metropolitan magistrate's court by, unsurprisingly, a prosecutor to the war crimes trial, Shahidur Rahman. The newspaper, New Age, in its reports stated:

'Magistrate Hasibul Haque directed the Tejgaon police officer-in-charge to register the case as the first information report and take legal action against the accused. In keeping with the Code of Criminal Procedure Code, the police can arrest the accused charged with sedition without any warrant for arrest.'

What is the offense of sedition? Section 124 of the Penal Code states:

Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law shall be punished with imprisonment for life or any shorter term, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.

Explanation 1.-The expression "disaffection" includes disloyalty and all feelings of enmity.
Explanation 2.-Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

Explanation 3.-Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

Whilst the section itself seems to be very broad in its application, it needs to be read alongside the  'explanations' which does restrict it's application (somewhat) to ensure that ordinary political speech or writing are not included within the definition. Nonetheless it is still very broad in its application allowing words which 'excit[e] or attemp[..] to excite hatred, contempt or disaffection' against the government to be deemed sedition.

There is quite a lot of case law (according to Md Zahurul Islam's commentary, p.194-198 of 2010 edition: 'The Penal Code") on the meaning of this offense but there does not appear to be any decisive case as to whether the offense should be defined broadly or narrowly. 

That being said, it is difficult to see how the publication of these particular conversations between a judge and a lawyer could reasonably be deemed seditious - since they are not in any way directed at the government. Moreover, surely if they are seditious, would not both Justice Nassim and Ziauddin also need to be prosecuted since they are the ones that spoke the words?

(One should note that if this case were to proceed further, the prosecution would have to be specifically authorized by the government).

Information, Communication and Technology Act 2006
Prior to the magistrate passing an order, another lawyer had filed an application before the High Court seeking an order against Amar Desh, suggesting that action be taken against its editor for an offense under the ICT Act 2005. The Daily Star's report of that day states:

During the hearing yesterday, petitioner's lawyer Shafiuddin Ahmed told the bench that Mahmudur Rahman had committed grave criminal offence under sections 56 and 57 of the Information and Communication Technology Act, 2006.

Section 56 of the Act titled 'Punishment for hacking with computer system', states:

If any person
(a) with the intent to cause or knowing that he is likely to cause wrongful loss or damage to the public or any person, does any act that thereby destroys, deletes, or alters any information residing in a computer resource or diminishes it value or utility or affects it injuriously by any means;
(b) damage through illegal access to any such computer, computer network or any other electronic system which do not belong to him
then such activity shall be treated as hacking offense.

And section 57, titled 'Punishment for publishing fake, obscene or defaming information in electronic form:

(1) if any person deliberately publishes or transmits or causes to be published or transmitted in the website or in electronic form any material which is fake and obscene or its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read see or hear the matter contained or embodied in it or cause to deteriorate or creates possibility to deteriorate law and order, prejudice the image of the State or person or causes to hurt or may hurt religious belief or instigate against any person or organization then this activity of his will be regarded as an offense
(2) whoever commits offence under sub-section (1) of this section he shall be punishable with imprisonment for a term which may extend to ten years and which fine which may extend to Taka one crore

I think it is pretty safe to assume that the editor of Amar Desh was not actually involved in the hacking of the skypte conversations, so it is very difficult to see how he could have committed an offense under section 56.

And in relation to section 57, no-one has suggested that the material is 'fake' or 'obscene' or could 'tend to deprave/corrupt people' or may 'hurt religious belief' or could result in a 'deterioration in law and order'. Some of the material published could be said to 'prejudice the image' of some people but it does not appear that this section was enacted simply to further criminalize the offense of libel - which would be the effect if it was used in this way.

The ICT Act does not contain an offense dealing with the publication of illegally obtained information.

Press Council Act 1974 and Code
The Press Council Act 1974 establishes a press council whose main function is defined in section 11(1) as, 'to preserve the freedom of the Press and to maintain and improve the standard of newspapers and news agencies in Bangladesh.'

In furtherance of this main object, one of the Press Council's functions is set out in section 11(2)(b):

'To build up a code of conduct for newspapers and news agencies and journalists in accordance with high professional standard.'

Such a code has in fact been drafted. Para 16 states:

"It is the responsibility of the newspapers to publish news relating to case under trial and to publish the final judgment of the court to reveal the actual picture of issues relating to trial. But a journalist shall refrain from publishing such comment or opinion as is likely to influence an under-trial case, until the final verdict is announced." (emphasis added)

There is no public interest defense included here, nor is it clear what is the relationship between this code and the contempt of court laws in Bangladesh.

It would appear that the Amar Desh transcripts could well be considered a breach of this clause. However, breach of this Code has limited sanctions. Section 12 of the Act sets out the powers of the Council which only amounts to being able to 'warn, admonish, or censure' the newspaper/journalist and being able to force a paper to publish a report relating to any inquiry it undertakes:

(1) Where, on receipt of a complaint made to it or otherwise, the Council has reason to believe that a newspaper or news agency has offended against the standard of journalistic ethics or public taste or that an editor or a working journalist has committed any professional misconduct or a breach of the code of journalistic ethics, the Council may, after giving the newspaper or news agency, the editor or journalist concerned an opportunity of being heard, hold an inquiry in such manner as may be provided by regulations made under this Act, and if it is satisfied that it is necessary so to do, it may, for reasons to be recorded in writing, warn, admonish or censure the newspaper, the news agency, the editor or the journalist, as the case may be. 

(2) If the Council is of the opinion that it is necessary or expedient in the public interest so to do, it may require any newspaper to publish therein, in such manner as the Council thinks fit, any report relating to any inquiry under this section against a newspaper or news agency, an editor or a journalist working therein, including the name of such newspaper, news agency, editor or journalist. 

(3) Nothing in sub-section (1) shall be deemed to empower the Council to hold an inquiry into any matter in respect of which any proceeding is pending in a court of law. 

(4) The decision of the Council under sub-section (1) or sub-section (2), as the case may be, shall be final and shall not be questioned in any court of law.

A breach of the press code therefore may have taken place, but there is limited legal sanction available.

See Part 2: Interview with Mahmadur Rahman (coming)

Tribunal bans 'any report' on hacked conversations

The logo of the newspaper
Amar Desh

The International Crimes Tribunal this afternoon banned 'any transcript, report and article' relating to the conversations between former chairman of the tribunal, Nizamul Huq (recently resigned) and the Belgian based Bangladeshi origin academic Ziauddin Ahmed.

This order followed an application made by the prosecutor Rana Das Gupta in Tribunal 2 (The defense counsel present was Advocate Farid.)

Prosecutor: My lord I want to present a submission on behalf of Chief Prosecutor, may I?
Justice: Yes.

Prosecutor: Firstly I want to refer section 11 (4) of ICT Act by which Tribunal can punish anyone who obstruct in tribunal proceeding in any way. We have noticed that last three or four days Daily Amardesh and Daily Sangram are publishing Skype conversation held between Ex-chairman of ICT BD-1 Nizamula Haque Nasim and Ahmed Zia Uddin. I think this is a crime to hack anyone’s Skype account. By publishing those personal matters I think these two newspaper s violate the rights of privacy, personal secrecy and personal security.

We think they are publishing those mala-fide intention to obstruct in tribunal proceeding and for serving special purpose. So we are humbly praying to take steps against Editor and Publisher of Daily Amardesh and Sangram and pass a order to stop publishing those from just now.

Justice Obaidul Hassan: Defense Counsel, have you something to say?

Defense: No, My Lord.

Justice Obaidul Hassan: We were not ready about this matter, so we need 10 minutes time to decide about this matter.

Obaidul Hassan, the new chairman of the tribunal then passed the following order (This is a detailed note of it, but there may be some inaccuracies. The written order is not available.)

We have read main point of today’s skype conversation published in Daily Amardesh and Sangram. After reading we have felt that it is important to give an order about this matter for protecting dignity of Tribunal.

Prosecutor Rana Das Gupta has presented a matter which Tribual have taken cognizance. Over the last some days daily Amardesh and Sangram have published Skype conversation of cx-chairman of ICT BD-1 Nizamul Haque Nasim. We think this Skype conversations are creating wrong perception about Tribunal and its proceeding in the mind of people. To publish private conversation is an offence itself. We think those conversations will obstruct smooth functioning of the Tribunal and hamper the dignity of the Tribunal. So for protecting the dignity of Tribunal and its smooth functioning, all Newspapers specially including Daily Amardesh and Sangram, electronic medias and online newspaper are required, not to publish skype conversation between ex-chairman of ICT BD-1 Justice Nizamul Haque and Ahmed Ziauddin and any transcript, report and article about this conversation, from right now.

Two copies of this order will be supplied by register to Editor of Daily Amardesh and Sangram and also another copy to department of B.T.R.C.

Comment
This seems to be a very wide order indeed, preventing the publication of not not only the transcript of the conversations but also any 'report and article about this conversation'. This appears to prevent any report analysing the conversation.

This would also appear to be a completely unenforceable order - since people are commenting about this on facebook, twitter and elsewhere. The documents are also now available on a number of websites which people can access through simple google searching.

It is completely right that the personal aspects of the skype conversations should not be published, and an order relating to these is perfectly appropriate - but some of the material is very significant and publication seems to be very much in the public interest.

Interestingly, the order does not seem to apply to the hacked e-mail conversations - although apparently the prosecutor has told journalists that it does.

The ICT chairman's resignation - what next?

The chairman of the International Crimes Tribunal one has resigned. What does this all amount to, and what next for the tribunals?

No choice but to resign .... however 
1. The tribunal chairman probably had no choice but to resign. It would have been difficult for him to have soldiered on after his conversations with Ziauddin Ahmed were laid bare by Amar Desh. Whilst it remains difficult to assess the level of Justice Nassim's impropriety (I would like to first await to see what the Economist says about all the material it has in its hands) one can at the very least say that he should not have been seeking advice about Tribunal orders from someone whom he know was in direct contact with the prosecution.

2. As much as anything else, however, his difficulties in continuing must have been about the personal comments he made about fellow judges as well as other people including ministers. It would have for example been difficult for him to continue on the bench after his comments about Justice Jehangir, with whom he sat on the bench, were made public.

3. It was notable that in Justice Jehangir's comments in court today he appeared, by inference, to personally criticize the tribunal chairman, whilst at the same time failing to criticize Amar Desh for actually publishing the report - only for the paper in using his name in the headline.

Amar Desh
3. Whilst it was arguable that parts of the transcripts were in the public interest to publish (this is of course an issue that deserves more attention than I will give here), it is certainly clear that Amar Desh at the same time published material that was private and personal. This should be strongly criticized.

4. Justice Nassim had a proper expectation of privacy. An offense was committed by the person who hacked into his conversations. Basic media ethics requires that there must be a strong public interest in a newspaper publishing material from hacked private conversations, particularly when they involve a judge dealing with a current case. This is the standard in the UK, at least - and whilst this is not enshrined in the Bangladesh press code (a rather odd document, it has to be said), one would hope that this is an implied standard that newspapers here should comply with. Amar Desh however seems not to have given any consideration to what was in the public interest to publish and what was not - and as a result publishing material that was entirely personal. (Was Nassim's health condition or his ability to use e-mail, relevant to anything?).

5. Also Amar Desh should have taken much greater care before publishing Justice Nassim's or Ziauddin's opinions about different people made - one must remember - in a private conversation. The publication of his comments about another judge for example suggesting that he was corrupt is potentially libelous. Does Amar Desh have any proof to support Nassim's allegation? If not they should should not publish it. Justice Jehangir in court today denied it (see subsequent post).

6. Amar Desh's failure to give any professional consideration in deciding what and what not to publish provides the Bangladesh government additional arguments in its current attempt to foist greater regulation on the media. The last thing the Bangladesh media needs is greater government control - but Amar Desh has unfortunately provided legitimate arguments for the government to push through with this.

Blame the government
7. What comes out of these Amar Desh transcripts more than anything else is the level of interference on the part of the government. The big question is why the state law minister Qamrul Islam, for example, is not resigning?

8. Whilst it was the government that established the war crimes tribunals - a decision that gave hope to the legitimate and important demands for accountability by families whose relatives were killed in the war as well as by so many others  - almost every subsequent decision they have made about the tribunals was wrong. These include:
- appointing prosecutors on the basis of party loyalty, rather than competence. Instead of appointing the best Bangladesh lawyers, they appointed lawyers with relatively minimal ability;
- failing to appoint international lawyers and war crimes investigators to work with the prosecuting and investigation team. This would have immeasurably improved the quality of the evidence obtained and the level of prosecution arguments;
- failing to change the law so that it was more in line with international standards. Standards are not just about providing more rights to the accused, they also help protect justice processes from coming into dispute, the situation we have right now.
- failing to appoint a independent legal advisor of international repute that could transparently assist the tribunal panel of judges in the process of holding these trials;
- failing to allow the tribunal to operate independently, and instead making prejudicial comments about the accused and placing pressure on the tribunal.
- refusing to take advice from the UN and others within Bangladesh who had been pressing the government to make improvements in the way the tribunal operated.

9. A common reprise of the government is to blame the BNP and Jamaat for undermining the tribunals. However, it has been the government which has continuously provided them the ammunition to do this. Had the government, right from the beginning, tried to ensure that these tribunals were of a higher professional standard, then we would not be in the situation that we are now in. Sure, the BNP/Jamaat would still be continuing to criticize the tribunal, but they would not have good reason to do so, and their concerns would not gain any traction or credibility. That cannot be said for the situation now.

What should happen next
10. There is first of all the question about the Sayedee case. One of the existing judges Justice Jehangir Hossain, appointed following the resignation of the Justice Zahir Ahmed, has not heard  any of the prosecution evidence. Justice Anwarul Huq, appointed at the end of March 2012, when Justice ATM Fazle Kabir moved to the second tribunal, had only heard part of the cross examination of one of the prosecution witnesses. And the new judge who will now replace Justice Nassim will not have heard any of the prosecution or defense evidence. Does this mean that there should be a retrial?

11. Section 6(4), (5) and (6) of the International Crimes Tribunal Act 1973 states the following

(4) If any member of a Tribunal dies or is, due to illness or any other reason, unable to continue to perform his functions, the Government may, by notification in the official Gazette, declare the office of such member to be vacant and appoint thereto another person qualified to hold the office.
(5) If, in the course of a trial, any one of the members of a Tribunal is, for any reason, unable to attend any sitting thereof, the trial may continue before the other members.
(6) A Tribunal shall not, merely by reason of any change in its membership or the absence of any member thereof from any sitting, be bound to recall and re-hear any witness who has already given any evidence and may act on the evidence already given or produced before it.

12. This would appear, technically, to cover the situation that the tribunal is in. However, it is difficult to imagine that the Act could ever have envisioned a situation in which the tribunal is now in - where one of the judges has heard no evidence, another judge has not heard any of the prosecution evidence, and a third judge has heard a very small part of the prosecution evidence.

13. It may well be the case that the tribunal/prosecution will also point to the practice in Bangladesh which allows judges to take over  criminal proceedings and to make judgements on the basis of the recorded evidence alone. This is set out in section 349A (1) of the Code of Criminal Procedure which states:

Whenever any Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge, after having heard and recorded the whole or any part of the evidence in a trial, ceases to exercise jurisdiction therein, and is succeeded by another Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge, as the case may be, who has and who exercises such jurisdiction, the Judge so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself; or he may re-summon the witnesses and recommence the trial: 

Provided that if the succeeding Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge, as the case may be, is of opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interest of justice, he may re-summon any such witness, and after such further examination, cross-examination and re-examination, if any, as he may permit, the witness shall be discharged.

Whilst the CrPC is specifically excluded from application to the tribunal  and in fact only applies to 'Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge', it may well be cited as national practice that can be applied here

12. If the tribunal accepted this position - that is to say that these three judges could give a judgment on the Sayedee case without hearing the evidence again - this would make the decision of the court particularly controversial. This would be the case particularly in the context of being a war crimes trial, with the possibility of a death sentence at the end of it.

13. Arguably, it would not serve the interests of anyone if the first decision of this tribunal arises from such circumstances, set out above. In addition to this problem, there are a number of due process failures evident in the manner in which the Sayedee case has proceeded. A retrial of the Sayedee case may be the best option available in such a situation to ensure credibility to the process.

14. The defense will also no doubt argue that the disclosures cast doubt on the other cases dealt with in Tribunal one - Golam Azam, Motiur Rahman Nizami, Salauddin Quader Chowdhury. It is too soon to determine whether or not this is the case. However, every crisis creates an opportunity. And in this crisis, there is an opportunity for the tribunals and the government to see how their processes and operations can be improved. This does not just relate to Tribunal one. In Tribunal two for example, the defense in one case have only been allowed to bring six witnesses to the court - half as many as the prosecution. These kinds of decisions by the tribunal, which cut across the due process requirements of allowing the defense to be able to present its case in court, could be reviewed.

The new judge
14. The defense may think the removal of Justice Nassim as a success - but it is possible that the government appoints a judge that is less independent minded than him.

15. For the sake of the credibility of the tribunal, the government must be persuaded to appoint a judge who is widely recognized as particularly competent and independent minded.

The objective
16. One must not lose sight of the objective of these tribunals. It is to hold trials that allow for accountably of those who are alleged to have committed war crimes in 1971. This is a principled objective and even those who raise issues about the tribunal must not lose sight of that legitimate purpose. For those like me who support accountability for 1971 crimes, criticism needs to lead to improvement and reform. Not impunity.

'My name is only Jehangir Hossain ... I am honest'

Today, Tuesday 11 December 2012, the Tribunal sat in the afternoon. The chairman of the tribunal, Justice Nassim was not present (it took place a few hours before he resigned). Only two judges sat.

Journalists were present to hear the court pass an order following an application by the prosecutor Haider Ali to take action against the newspaper Amar Desh that had published private conversations between the Tribunal chairman and a Belgium Based law academic, Ziauddin Ahmed. These are assumed to be the same conversations that are in the hands of the Economist magazine which in an article last week described them as raising serious concerns about the workings of the tribunal.

No order was given, but Justice Jehangir made a personal statement in court (see comments at bottom). these were in response to a section of the conversations published in Amar Desh where the chairman criticized Justice Jehangir for being 'corrupt', and also referring to him using an unflattering nickname.

He spoke in Bangla. Below is a translation of what he said, though there may be some omissions.

Haider Ali presented the news in front of us and he is not here today, and since we have a fee more queries to ask him and would be better if he was here since he placed here. Frankly let me make a few words here. What has been published there is something about me too, and it is very difficult to speak about them. Now what seems to me is that no one has a clear impression about who I am. I believe before speaking or writing about anyone they should know first about the person who they are speaking about. Also this is so dictated by our religion, Islam says that should not speak ill about anyone without knowing the exact details, but this is what so called wise people seem to like to do these days.
In my private life I have come here through a strong struggle and I understand that it will be so. My path has not been easy and still it will be difficult even in future. 

I have never tried to gain any benefits from my political acquaintances. I have never behaved badly with anyone in my professional life, but when people say lies about me, 100% lies about me, sometimes I came a bit perplexed, but I am never frustrated, because a lie is a lie and the truth will come out sooner or later. I have been given the responsibility of a great job, it is a huge responsibility and I am grateful to Allah and also to journalists who have recorded my cases when I used to be a lawyer in the high court and this much focus on my reports has never really gone down well with those who speak ill of me.  

Whatever I have been I have been honest. I am honest and will for the test of my life be honest 

The Amar Desh's editor Anti Corruption Case  had come to my court when I was a second judge in the High Court and if I had reached a decision that was beyond my oath my judgement it would have been different. My judgement would not have been in favor of his appeal for a  stay order, but I still gave it to him. 

The only thing I can say, he could have printed the material without such a big head line with my name in. He could have done with me in such a big headline. That is all I will say about it 

I want to say something here I wasn't putting ash on the mouth of people who speak ill of others.  My name is Jehangir Hossain, my certificate says Jehangir Hossain, when I was appointed it was Justice Jehangir Hossain and only Jehangir Hossain.

Since the chairman is ill today we believe he should give the order, and since we do not know whether he will come tomorrow, so we fix the date the day after tomorrow.

Comments
1. It is effectively a rebuke to the chairman.

2. It is interesting to note that he did not criticize the newspaper for publishing the article, only for printing his name in the headline.

Defence lawyers seeks ICT chairman resignation

For the purposes of comprehensiveness (and not because this blog supports its contents) posted below is the statement of Barrister Abdur Razzaq, the head of the ICT defense team given at the Bar Council premises on Monday, December 10th. Another statement was given by the vice-president of the Bar Council and this statement will be placed on this page later.

This statement was made the day before Justice Nassim resigned

Statement of the Defence in view of the revelations made in the Economist and Daily Amar Desh.

On 9 December, 2012, at about 12.15 in the morning (BST) the Economist published a report in its “Banyan” section stating that it had in its possession 17 hours of Skype conversations between the Chairman of the Tribunal-1 and Dr. Ahmed Ziauddin (a campaigner for the present trials) together with 230 emails. The Economist commented that these if genuine, would raise questions about the workings of the Tribunal.

On the same day the Daily Amar Desh published a selection of the Skype conversations. These conversations contain statements which damage the integrity of the Tribunal and include the following:-

1. The Chairman is discussing the contents and fate of the case with an outsider and taking extensive assistance from him.

2. The Chairman is telling Dr Ziauddin that the Government needs a judgment by December, 2012 and that he can prepare Allama Delwar Hossain Sayedee’s judgment by such date;

3. Dr. Ziauddin is drafting a rough sketch and structure of the Judgment for the Tribunal in the case against Allama Delwar Hossain Sayedee even before commencement of arguments.

4. The Chairman deciding with Dr. Ziauddin the order in which the cases should be disposed of.

5. The Chairman terming his brother Judge as having been corrupt and referring to him by a derogatory nickname.

Today, the Amar Desh published further conversations in which the Chairman and Prosecution is reported to have engaged in mock displays of arguments between them to give the impression that he does not favour the Prosecution. Dr Ziauddin is also reported to have been assisting both the Prosecution and the Chairman. Audio versions of the Skype conversations are now widely available in the internet.

The reported conversations have serious implications for the on-going trials. So far we have no reason to believe that the Skype conversations are fabricated. We are fortified in this belief, by the statements of the State Minister of Law to the BBC yesterday in which he admitted the conversations. Moreover, Dr. Ziauddin declined to comment to the BBC. The Tribunal and the Prosecution are not making any comments on the authenticity of the conversations despite their serious nature. Most revealing is the admission by the Tribunal-1 in its Order dated 6 December that such conversations indeed took place.

The above disclosures made on 9 and 10 December have seriously undermined the integrity of the entire trial process. We doubt whether the process will ever regain its credibility. The only honourable option open for the Chairman is for him to resign. This will not only be in the interests of the trial but also of the Judiciary, whom we believe he has single-handedly undermined.

Bangladesh war crimes tribunal chairman resigns

Bangladesh state minister for law, Advocate Muhammad Qamrul Islam has confirmed that the International Crimes Tribunal 1 chairman, Justice Nizamul Huq has resigned.

'He tendered his resignation at 5pm to the Secretary to the Law Ministry. He said it was for personal reasons.' 

When he was asked whether it was to do with the Economist revelations, he said:

'I don’t know what is the actual ground. Any other ground he did not express.'

When asked what will happen now to the tribunal, he said:

'We are appointing a new chairman within tomorrow or day after.

When asked whether there was a problem with the Sayedee case continuing since no judge has heard the whole case, he said:

The Sayedee case will continue. There is no problem' 

For the last three days the Bangladesh newspaper has published transcripts of the Skype conversations which the chairman had with the Bangladesh original Brussels based law academic Ziauddin Ahmed.

More to come .......

Who hacked the ICT chairman's computer?

When the UK Guardian and other newspapers first published the wikileaks material on the US embassy cables, attention was not just focused on their extraordinary content, but also on how wikileaks got the cables in the first place.

And as we all now know Bradley Manning is now detained by US authorities.

The International Crimes Tribunal recordings/e-mails are obviously not of the same import as the Wikileaks cables (though not without some significance of course in Bangladesh, and to the war crimes trials in particular). In addition, the Economist has not even yet published substantively on their content (though a Bangladesh newspaper has published transcripts of some material).

However, it is necessary to ask some questions about how confidential personal communications between a judge and a legal academic could have been recorded/hacked and how this information got in the hands of the Economist.

Of course, ones view about the person(s) responsible for the recording (as with one opinions about Bradley Manning) depends where your sympathies lie; if you are a keen supporter of the tribunals, the 'hacker' may be viewed simply as a criminal who has intercepted private communications of a sitting judge in gross contempt of court. But, for critics of the tribunal, this person may well be seen as a hero who has exposed something in the greater public interest

Here are ten initial points.

1. Security experts tend to claim that whilst e-mail communications are relatively easy to hack, Skype conversations are not. Moreover Skype conversations are not archived on either of the computers involved in the conversation, so that they any recording had to be made at the time when they were made.

2.  So in relation to the Skype calls, it appears there are the following options: (a) one/both of the computers used by the chairman and Ziauddin contained software that allowed Skype conversations to be recorded when they took place; (b) the rooms where the skype conversations occurred were bugged; (c) someone else in the room where the conversations took place was recording them.

3.  It is possible that the person responsible for the recording could well be someone trusted by the ICT chairman or Ziauddin; however it is equally possible that something more audacious has been undertaken involving more sophisticated bugging or hacking.

4. The Economist says that it did not procure or pay for this material; that the information was given to them. This must be taken at face value.

5. The person who hacked may well be different from the person who gave the information to the Economist. So the 'hacker' could have given/sold the material to a third party, who then gave it to the Economist.

6. The Economist was surely not the source for the Bangladesh newspaper Amar Desh receiving the material. There is no way that the Economist would have shared its scoop with any other media outlet, yet alone a Bangladesh one. So either the 'hacker' or a third party is the source of the information to Amar Desh.

7. What role have the defense lawyers in all this? Clearly, the 'hacking' and the material obtained very much serves their interests. Though that does not mean that they necessarily were involved in all this - at the same time it is difficult to believe that this all came as a total surprise to them. At the very least, it is reasonable to assume the material flowed through them in some way before it got into the hands of the Economist. And perhaps they were more deeply involved. They have made no comment on this aspect so far.

8. I have asked the defense lawyers a series of questions on their role if any in the 'hacking' and in providing information to the Economist, and have been told that they will respond to the queries at a later stage after the publication of the Economist article. The questions that I have asked are as follows:

- Can you comment on whether any member of the ICT defense team in Bangladesh was responsible for recording/hacking the e-mails/skype calls relating to conversations/ messages of the ICT chairman currently in the hands of the Economist? 

- If not, can you comment on whether any other member of the ICT defense team in Bangladesh knows how the material was hacked/recorded? 

- Can you comment on whether, prior to 4 December, any member of the ICT defense team in Bangladesh saw any of the material that is in the hands of the economist and if so how did that came about? 

- Can you comment on whether any member of the local or international defense team had any role in bringing the material to the attention the Economist, and if so in what way?

9. Whilst the defense may have much to gain by the publication of this material, there are at the same time significant risks. The focus could move from the content of what was recorded, onto what involvement, if any, they had in the obtaining of the confidential material.

10. The person who hacked/recorded the conversations/e-mails will likely to have committed a criminal offense under Bangladesh law as will anyone who procured the offense. Without pre-judging the situation, there are legitimate questions to be asked of the defense legal team about their involvement in all this. As lawyers, they also have a higher set of professional standards to follow which include particular responsibilities towards the tribunal.

See other posts relating to Economist story
Ziauddin Ahmed: No comment
Comment from Toby Cadman on Economist Story
Has the Economist blinked?
Bangladesh Civil Society Establishment: will the trial process continue to have its support
Would Economist publication of tribunal e-mails be in breach of Editors code
Tribunal accuses Economist over e-mail hacking

Ziauddin Ahmed: 'No Comment'

Ziauddin Ahmed, the Brussel's based international lawyer with whom the Tribunal Chairman has acknowledged in a recent court order that he has been in contact with over Skype concerning matters relating to the International Crimes Tribunal has said that he will not make any comment about the matter until it is dealt with by the Tribunal.

In a e-mail statement, he said:

'I cannot discuss anything at this stage since the matter is under consideration of the ICT and as such, sub-judice. Thank you for your understanding.'

When asked whether he was 'able to comment [on] whether or not the transcripts published this morning in Amar Desh are correct?' he said:

'I think until its resolved by the ICT I cannot make any comment. Hope you will understand.' 

His statement comes as yet another day passes without any substantive article from The Economist about the material that it has said that it is currently investigating.

In the meantime, Amar Desh has published a long transcript of a number of conversations (amounting to over 22,000 words) between the ICT chairman and Ziauddin. In addition a number of the audio tapes of these conversation are available on u-tube, and links are circulating to these.

Many are expecting that this material would be published on this blog, but it will not be at the moment for the following reasons.
- these are illegally obtained confidential material and journalistic ethics requires considerable thought before simply publishing them;
- the Economist - as far as one can guess from its recent article - is currently going through a rigorous analysis of whether the information disclosed by them is sufficiently in the public interest to merit  publication in their magazine. It seems appropriate, therefore first to wait and see what The Economist publishes;
- and, finally their publication may make me vulnerable to legal action in Bangladesh.

Once the Economist has published an article, assuming it does so - and it has given its consideration to public interest issues - this blog will consider undertaking its own analysis of what the impact of the revelations might mean for the tribunal.

Comment from Toby Cadman on Economist article

I just managed to get this quote from Toby Cadman, who is a British barrister that is involved in assisting all of the Jamaat leaders accused of international crimes, in response to today's Economist article

"I find the whole situation rather disturbing. If it is established that there was an improper relationship between the Chairman and Dr. Ziauddin Ahmed then that is worrying as it may impact on the entirety of the proceedings. Without wishing to prejudge the proper response that will have to be taken, it is my view that this necessitates a fully independent and impartial inquiry on the international level. The United Nations must be called upon to fully engage on this issue as a matter of urgency."

Has the Economist blinked?

So we now know a little bit more about what material the Economist has, though not much
[but see end of this post re Amar Desh]

The Economist has 17 hours of recorded material and over 230 e-mails between the the chairman of the international crimes tribunal and the Bangladesh legal academic, Ahmed Ziauddin.

In its article, the Economist makes the point that:

'This material is confidential and we are bound by law and the British press’s code of conduct not to reveal such information except in matters of the most serious public interest. We did not solicit the material, nor pay for it, nor commit ourselves to publish it.'

So, this confirms, as suggested by the Tribunal's order, that the material was illegally intercepted or recorded - that it is confidential - but it was not procured by the Economist. It was given to it. The article gives no indication who gave them the material or who illegally obtained it. Clearly this is a very serious issue indeed, entirely separate from the question about whether or not publication is justified.

As to what the material actually says, the Economist simply says that it:

'would indeed raise questions about the workings of the court'

It appears that the Economist does intends to publish, if their lawyers give them the green light. It says:

'Our investigations are continuing. Once they are concluded and if we consider the allegations contained in them to have merit, we will publish them.'

The article provides a little bit of color to Mr Ahmed and his relationship with the tribunal chairman.

'Mr Ahmed is an expatriate Bangladeshi who is an academic specialising in international law who lives in Brussels. The two men have known each other for 25 years, as they were human-rights campaigners and Mr Ahmed’s late brother had been a student friend of the judge. Mr Ahmed is not just an international lawyer, he is also the director of the Bangladesh Centre for Genocide Studies in Belgium, which is dedicated to ending what he has called “the ingrained culture of impunity” surrounding the war crimes in Bangladesh.'

The article ends on suggesting a discrepancy between what the tribunal chairman said in his order and what he said to the Economist on the phone. On the phone on Tuesday 4th December to the Economist, the chairman is said to have stated:

“As judges, we cannot take help from third person and outsiders,” Mr Huq said. Asked whether they sometimes exchange e-mails about the tribunal, he says “No, no, no, regarding tribunal, no talks regarding the judgment or regarding the proceedings, no.” “Later, he said, “A Supreme Court judge, we do not talk even with our wife regarding the tribunal.”

But, as the article says, the chairman's order on Thursday 6th states:

The order refers to the presiding judge of the tribunal “receiving the support [of Mr Ahmed] on the developments on International Criminal law throughout the world” and taking assistance “during the proceedings of the trial and orders”.

The other issue, the Economist raises is transparency:

On what bases did the judge select the experts who would help him? Why was Mr Ahmed’s role not revealed to the court and to the public until the tribunal order on 6th December, after we had contacted hi

I think we can assume that whether or not anything more gets published depends on the Economist's lawyers, who must be combing every word and comma. The publication of the private correspondence of a sitting judge just days before he is involved in a decision on the guilt or innocence of a person, is a matter of the utmost seriousness, and if the Economist does not get it right - and if publication does not serve, as they put it, 'the most serious public interest', the magazine will be in serious trouble indeed.

There is of course a bit of an interesting history between the Economist and the Bangladesh government There are many in the government, and amongst its supporters, who think that the Economist has it in for the Awami League government. This is principally because of an article which claimed that the Awami League government won the last elections with 'bags of Indian cash and advice' (without putting forward any evidence). It has also been consistently critical of the war crimes trials. For some this shows some kind of motivated intention, rather than critical journalism. Interestingly though, for those who with to see malice within the Economist, the magazine recently did a number of positive articles and videos on the progress of Bangladesh in achieving a number of development goals.

However, it may well be because of the Economist's consistently critical position about the international crimes tribunal from early on, that it was chosen as the berth for this illegally obtained material (in fact it is the only major international publication that has followed the tribunal at all really, with all other media effectively ignoring it).

Otherwise, the Economist is an odd choice - since it does not generally do investigative journalism as such, and has less experience than other major publications like the Guardian or New York Times in breaking stories like this.

[Having written this, just heard that pro BNP paper Amar Desh has published further details about what is supposedly in the intercepted material. I myself would rather wait for the Economist myself - but when I get a translation will post it up, if it appears reliable/appropriate]

Bangladesh's civil society establishment: will the trial process continue to have their support?

Will members of Bangladesh's civil society establishment, in particular its human rights organizations and its non-party based media, break rank and acknowledge that there are serious questions being raised in the trial of Delwar Hossain Sayedee?

That is the key question right now as we await to find out what are the new revelations that the Economist is apparently preparing to publish - that will presumably add further reasons to question the tribunal's fairness and neutrality.

As of now the civil society establishment, whatever misgivings they may have about various aspects of the current government, have been full square behind it's decision to both establish the tribunals and the process of the tribunals themselves.

There are many noble and principled reasons for this:

- terrible crimes were committed in 1971 by the Pakistan military, aided and abetted by their local collaborators;
- amongst those who supported the military - not just politically, but 'militarily' - were those who were members of the Islamic-minded parties of which the Jamaat-e-Islami were perhaps central.
- although there were some form of attempted accountability immediately after the war, many of the leaders of the Jamaat-e-Islami in 1971 had left the country or at least were not within the jurisdiction and so were not party to these mechanisms (which were in any case problematic).
- after 1975 and the assassination of the country's first president Sheikh Mujib, the Jamaat-e-Islami began to re-group so that by 1990, when the first proper democratic elections taking place, the party was able to obtain 17 seats in the parliament, holding the balance of power. Since 1990, their strength increased and their coalition with the Bangladesh Nationalist Party, three of the Jamaat's leaders - all of which were said to have been involved in war crimes during 1971 - were made leaders.
- to end impunity, and ensure accountability, trials of those alleged to have committed war crimes were necessary and in fact a legal obligation upon the government;
- the struggle for accountability has been a long one, with many political forces conspiring against it, that the trial process needed its support.

Yet civil society establishment's support for the tribunal has been pretty much unconditional. An alleged abduction of a Sayedee defense witness outside the tribunal? Not a peep. Exposure of investigation agency apparent deceit  to the court about Sayedee's prosecution witnesses? No reaction.

The members of civil society establishment (if I may generalize here)  have not separated out the their principled reason for supporting the holding of trials, on the one hand, from the actual process of the trials themselves, on the other. Their line of thinking seems to be as follows: because the trials should take place, nothing must get in the way of the completion of the process; whoever is criticizing the tribunals are really against the principle of accountability; so in order to ensure accountability, we must support the trials, whatever the criticisms may be.

This mindset includes those who in any other situation (not involving the Jamaat as the accused) will raise strong criticisms of other inadequate judicial and political processes taking place, sometimes at great risk to themselves. It is this civil society establishment, the strongest supporter in so many other situations of due process and proper accountability, which is blind to any concern about the war crimes tribunal.

Why have they taken such a hard line position in relation to the war crimes trials?

- there remains huge emotion relating to 1971. Many of the civil society's leaders fought in 1971 for independence, and saw at first hand terrible crimes being committed. After Sheikh Mujib's assasination, they also saw in front of their very eyes not just the reemergence of the Jamaat as a political force, but a much stronger force than they ever were before the war.

- this is not just about accountability for 1971, it is also about civil society establishment's widespread hatred of the Jamaat-e-Islami as a political force in Bangladesh. The civil society establishment is overwhelmingly secular, and see themselves as sworn enemies of everything that the Jamaat-e-Islami stands for. The trials therefore have another purpose - to weaken, if not destroy, the party.

- There is a common assumption that these men are guilty of the crimes alleged and that any defense they provide is simply an attempt to manipulate the judicial process. (Where they get this sense of absolute certainty is an interesting question to be considered another time.)

- the criminal justice process in Bangladesh is amenable to delay, corruption and manipulation which has resulted in the past in impunity for those alleged to have committed high levels of corruption and other crimes in Bangladesh. The powerful, accused of serious crimes, have again and again escaped accountability. This, they say must not happen in relation to these war crimes tribunals.

There are of course those amongst this establishment who are critical of aspects of the process - but they keep their views private. To make them public exposes them to the real risk of ostracism and abuse.

So how will this civil society establishment react to any revelations that may come from the Economist? Will they continue to assert their position that the trials must continue at all cost, that they will brook no criticism? Or will they recognize that the tribunals must meet some minimal standard of due process, as otherwise the process, however emotionally satisfying for them, may become yet another blot on the country's judicial system? Will they think that they must say something as otherwise they will be exposed to charges of hypocrisy and lack of principle? Will there be a point where they will say that however much we want accountability and the conviction of these men, the process must be a process that we can be proud of?

We will have to wait and see - but how civil society's establishment responds is the key to what will happen next. With this group of people on their side, however serious the revelations, I suggest that the government may be able to continue with the trial process without much of a hiccuped. Government and their supporter's accusations of an 'international conspiracy paid for the Jamaat' - which I am sure we will hear a lot of -  play well here, and will allow the process to continue uninterrupted.

But without their support, the government may well have a problem.

Would Economist publication of Tribunal e-mails be in breach of Editors Code?

This post looks at whether the publication of the private e-mails of a siting judge involving a case that he is involved in judging might be in breach of the UK Press Complaints Commission Editors Code of Practice with which The Economist magazine has to comply.

It appears from the order given by the tribunal judge yesterday that the situation is as follows. The Economist has in its possession electronic communications of a judge, obtained without his consent, which involve comments he has made about a court case on which he is involved in making a decision.

If the Economist publishes any part of the communication, is this in breach of this Editors Code?

Relevant Provisions of the Code are as follows.

3. Privacyi) Everyone is entitled to respect for his or her private and family life, home, health and correspondence, including digital communications.
ii) Editors will be expected to justify intrusions into any individual's private life without consent. Account will be taken of the complainant's own public disclosures of information. 

10 Clandestine devices and subterfugei) The press must not seek to obtain or publish material acquired by using hidden cameras or clandestine listening devices; or by intercepting private or mobile telephone calls, messages or emails; or by the unauthorised removal of documents or photographs; or by accessing digitally-held private information without consent.
ii) Engaging in misrepresentation or subterfuge, including by agents or intermediaries, can generally be justified only in the public interest and then only when the material cannot be obtained by other means.

Both these clauses are marked with a * which means that breach of them can be justified if it is 'in the public interest.' The Code includes the following clause about the meaning of 'public interest 's relation to these provisions.

1. The public interest includes, but is not confined to:
i) Detecting or exposing crime or serious impropriety.
ii) Protecting public health and safety.
iii) Preventing the public from being misled by an action or statement of an individual or organisation. 

2. There is a public interest in freedom of expression itself. 

3. Whenever the public interest is invoked, the PCC will require editors to demonstrate fully that they reasonably believed that publication, or journalistic activity undertaken with a view to publication, would be in the public interest and how, and with whom, that was established at the time. 

4. The PCC will consider the extent to which material is already in the public domain, or will become so 

5. In cases involving children under 16, editors must demonstrate an exceptional public interest to over-ride the normally paramount interest of the child.

Comment
The code makes the assumption that all digital communications are private and their publication is not permitted without the person's consent. Interception of e-mail messages is in not permitted unless it is in the public interest.

Though not stated, the digital communications of a judge would be seen to be particularly protected.

The public interest is defined to include 'serious impropriety'. Not just 'impropriety', it must be serious. Since one assumes that the digital communications of a judge are particularly protected (especially when they involve an ongoing case), one would again assume that the impropriety must be particularly serious.

So whether or not the Economist would be in breach of the Editors code in the publication of these e-mail communication depends upon whether there is a strong enough public interest in their publication, and that depends upon how serious the level of impropriety the published communication shows.

For the Economist to get away with this, I would argue, it would have to be pretty damning. We will just have to wait and see.

The PCC Code does not of course deal with issues relating to contempt of court. Perhaps another post is in order to discuss that.

Tribunal accuses The Economist over e-mail hacking

In an extraordinary development at Tribunal 1 of the International Crimes Tribunal in Bangladesh on Thursday 6 December 2012, on the last day of the defense closing arguments in the case of Sayedee, the tribunal chairman passed an order involving claim that his computer has been hacked and that offenses have been committed by the Economist magazine's editors.

This is the full text of the order (copied from the original)

The chairman of this Tribunal and the two members are judges of the Supreme Court of Bangladesh. After creation of this Tribunal when the Chairman and the two members were appointed, they mentioned in the open court room that the International Crimes (Tribunal) Act 1973 is a new law to them and for them to understand this law, looking into the processes and orders of different tribunals and perusal of them are necessary, along with being advised by the prosecution and the defense counsel and consultation with the experts. They can also take the assistance of researchers from inside and outside the country and with this understanding and knowledge coming from all such people, the trial process was continuing in this Tribunal.  

The Chairman has had the privilege of receiving the support of Dr Ahmed Ziauddin, an expert in International Criminal law and some other person was are Bangladeshi residing in Brusells and other places and occasionally the Chairman has discussion with Dr Ahmed Ziauddin on the developments on International Criminal law throughout the world and took the assistance of him in this respect.  During the proceedings of the trial and order the Chairman also took the assistance from him. In this respect they have had discussion through Skype.  

Just two or three days earlier the chairman found that his e-mail and Skype accounts along with his computer has been hacked. Yesterday at about 10.00 pm, the chairman received a telephone call from the phone number +91981001XXXX identifying that the telephone call is coming from the London based The Economist and told the Chairman that his conversation with Dr Ahmed Ziauddin is in their possession and asked the Chairman some questions regarding this information. He also mentioned that the Chairmn regularly talks with Dr Ahmed Ziauddin through Skype and received his advice through e-mail. He also mentioned that all the materials in the e-mails, the chairman received from Dr Ahmed Ziauddin are in their possession. This is how the Chairman became aware of this alarming development. This also explains a serious breach of privacy taking computer, e-mail and Skype accounts and obtaining confidential information from the Chairman illegally which amounts to interfering a judge of the Supreme Court of Bangladesh. And by questioning him over the telephone the person on the other side has also involved himself in speaking with the chairman which under the law he cannot do. 

The chairman has also got information that the e-mail and the Skype accounts and computer of Dr Ahmed Ziauddin have also been hacked which makes it clear that the person who are involved in disturbing the ongoing processes of this tribunal are involved in this matter. This cannot be allowed in any way.  

As such we give notice to Mr Adam Robers, South Asia Bureua Chief, the Economist (telephone number + 911141027759 and to Rob Gifford, Chief Editor, The Economist, 25 St James Street, London, telephone number 00 44207830XXXX and mobile 0044890305XXXX to give reply within 3 weeks as to why proceedings under section 11(4) of the Internatoinal Crimes (Tribunal) Act 1973 shall not be initiated against them. They also directed to keep secret the information which they have gathered from the Skype and e-mail accounts as well as the computer of the Chairman as this makes public the privacy of the Chiarman which need to be kept secret and in case they violate it proper action under the law will be taken. 

Let copies be sent to the Inspector General of Police and Chairman BTRC, Bangladesh for information and necessary action. 

To 27.12.2012 for further order.

Comment
One did not see this coming!

However the role of Ziauddin Ahmed has always been mysterious and I have been asking questions about his role in the tribunal for some time, but was never able to clarify exactly what he did do. Perhaps now we will find out. (I will write more about him after the Economist piece comes out, assuming that one is about to be published)

The initial question that comes to ones mind is if the Tribunal chairman was relying on Ziauddin so much, why was this not made public.

The tribunal says that it was mentioned in open court that 'they can also take the assistance of researchers from inside and outside the country.' Maybe they did, but I certainly cannot remember them doing so

The second question is what do these e-mails reveal - since one would imagine that discussion between the Chairman and Ziauddin about international criminal law in different courts would not create any great problem.

Since the Economist is delving in this one must assume that the correspondence reveals something more controversial. We will just have to wait and see what this could be.

The third question is who obtained these documents. One has to assume - in light of everything going on with the Leverson inquiry in England - that the Economist would never be involved in the hacking process itself. So that must mean that someone else hacked in and gave the information to the Economist.

Assuming this to be the case, this still surely raises some difficult questions for the Economist; they would be receiving (and then publishing) illegally obtained communications from the e-mail account of a sitting judge involving a case that continues to be under trial and awaiting judgement. For this to be justifiable, there would have to be a very very strong public interest defense. And right now, it is difficult to appreciate what that might be.