Tuesday, December 6, 2011

1 Dec 2011: New Age contempt hearing cont

This hearing was a continuation of the hearing on 27 November. On 30 November, my lawyer had filed an additional supplementary response in light of a number of points raised by the tribunal at that hearing.

This supplementary response was read out in full at the tribunal and can be dowloaded here. Along with the supplementary response there was a legal opinion from international criminal lawyer Wayne Jordash which can be downloaded here.

In addition to what was read out in the supplementary response, the following was stated by the lawyer Mustafizur Rahman Khan.

1. The tribunal members views may be different on a number of issues to those of David Bergman, but that is no reason to consider them a matter to be in contempt, if it comes within the principles of fair comment set out in the appellate division rulings which it is submitted that the tribunal should follow.

2. After one of the members of the tribunal again stated that the quote about the 20 witnesses was not in the oral order, the lawyer stated that it was our submission that contemporaneous notes of the order was taken by a journalist employed by David Bergman, and that the quote in the article comes directly from these notes a copy of which is appended to the supplementary response. As Mustafiz was about to take the judges to the notebook, to read out from the notes, the chairman said, 'We get your point'.

3. Again the tribunal raised a question about the part of the article that talked about whether one witness was sufficient to allow for congisance of a crime, and the lawyer responded by saying that the article was dealing with the offence of 'crimes against humanity' and that the opinion in the article is supported by legal advice given by an independent expert international crimes lawyer and as such his view in the article is a reasonable one.

4. He pointed out that three articles had been filed along with the supplementary response in support of the opinion in the article that 'many people' had a particular view of the tribunal.

5. He mentioned that after a number of other cases in which articles were published by journalists and when the courts have issued contempt show causes, the journalists/papers have shown a note of 'defiance'. This had not been the case here, he said.

6. He read out some additional parts of one of the Mohamadur Rahman appellate division decisions:
As regards criticism of judiciary, it is to be looked into whether an attack is malicious or ill intention which is always difficult to determine. But the language in which it is made, the fairness, the factual accuracy, the logical soundness of it, the care taken in justly and properly analyzing the materials before the maker of it are important consideration. The Court is not concerned more which reasonable and probable effects of what is said or written than with the motives lying behind what is done. V.R. Krishna Iyer,J. in S. Mulgaokr (ibid) formulated some rules. It is opined, the first rule in this branch of contempt power is a wise economy of use by the Court of this branch of its jurisdiction. The Court will act with seriousness and severity where justice is jeopardized by a gross and/or unfounded attack on the Judges, where the attack is calculated to obstruct or destroy the judicial process. The Court is willing to ignore, by a majestic liberalism, trifling and venial offenses – the dogs may bark, the caravan will pass. The Court will not be prompted to act as a result of an easy irritability. Much rather, it shall take a noetic look at the conspectus of features and be guided by a constellation of constitutional and other considerations when it chooses to use, or desist from using, its power of contempt.
He said that if you look at the constellation of considerations available to the tribunal they will see that this is not an issue that should be dealt with by contempt.

7. He pointed out the background of opposite party no 3 (the publisher) has an impeccable background

8. In response to a query whether or not what is said in the article is a signal to readers who will look negatively towards the tribunal, the lawyer said that the tribunal had to look at the article in its entirety and make a judgement rather than looking at bit by bit.

The lawyer finished his response asking for the tribunal for another day to be able to argue points relating to the the way in which contempt is dealt with in other jurisdictions other than South Asia. The tribunal agreed.

Nurul Kabir then started to read out his response. He was not able to finish his whole response, and the hearing was adjourned until 20 December.

Kabir's whole response, once it has been read out in full, will be posted on this blog.

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