Saturday, February 18, 2012

19 Jan 2012: New Age contempt case

This was the last hearing relating to the show cause notice given on 3 October 2011 which required myself (New Age, Editor, Special Reports) Nurul Kabir (New Age, Editor) and Shahidullah Khan (New Age publisher) to explain why proceedings should not be proceeded against us for contempt of court. This related to an opinion piece, ‘A Crucial Period for the International Crimes Tribunal’ that I had written for New Age and was published in the op-ed section of the paper.

The tribunal will give its order on Sunday, 19 February

Prior to this hearing, there had been two previous hearing relating to this case, and you can read about them below:
- 27 Nov 2011
- 1 Dec 2011

(A summary of our arguments which argued in court on the 27 December and 1 December hearings setting out why the article is not in contempt of court and does not justify criticism can be found in this post.)

In this hearing, Nurul Kabir - who was representing himself - completed his arguments. (A full copy of his submission will be available in a seperate posting once the final order has been given.)

When Kabir had finished, my lawyer placed a new application which summarised the arguments that had previously been made in court. It also raised a new point that no other tribunal prosecuting international crimes had criticised journalism that was critical of it

Below is the written application in full. To read the annexure that went with the application (containing of survey of the use of contempt law by other tribunals), click here. At the end of the hearing the tribunal said that the its order would be given on 19 February.
1. This application summarises the arguments made by opposite party no. one in his written and oral submissions to the Hon’ble tribunal. It also mentions one additional legal point relating to the practice of other tribunals dealing with international crimes concerning their application of contempt powers.

Relevant Law
2. The relevant case law in Bangladesh is set out in two recent judgments of the Hon’ble Appellate Division (Contempt Petitions No. 5 and 12 of 2010) and that these hold that:
a. Fair criticism of the judicial process is allowed so as to enable Courts to look inward into the correctness of their own proceedings:
b. As part of determining whether or not an article contains fair criticism, the Court must consider the rationality and soberness of the article as well as whether it is written in good faith and the public interest is served.
c. In determining whether or not something is written in good faith and in the public interest, the interests of justice require consideration of the surrounding circumstances, including the knowledge of the writer in the field and the intended purpose sought to be achieved, and the greater the knowledge that the writer has in the field, the less likely an article that person has written is considered contempt. (see paras 28 to 30 of reply of opposite party)

3. In particular the following comments of Justice Sinha in these two judgments are relevant:
a) ‘A fair criticism of judicial proceedings or courts is no doubt permissible so as to enable the court to look inward into the correctness of the proceedings and the legality of the order…’ (p.30 of judgement in Contempt Petition No. 12)
b) “A fair criticism of the conduct of a Judge may not amount to contempt if it is made in good faith and in public interest. The Courts are required to see the surrounding circumstances to ascertain a good faith and the public interest including the person who is responsible for the comments, his knowledge in the field regarding which the comments are made and the intended purpose sought to be achieved. If one having sufficient knowledge on the subject, such as a lawyer, a retired Judge, a teacher of law and an academician may make fair criticism and the Court in such case will be able to ascertain a good faith with the comments, …’ (p.75 of judgement in Contempt Petition No. 5)
c) ‘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.’ (p.93, contempt case no 5) …. [I] have only to add that I fully endorse the opinion expressed by Krishna Lyer,J.’
4. There is nothing stated in these two judgments by Justice Sinha which either contradicts his view that ‘fair criticism’ of court decisions are permissible, or conflicts with his opinion that a court should take into account the factors mentioned above in determining whether or not particular comments by journalists or others is fair criticism. (see paras 25 to 28 of supplementary reply).

5. Whilst the opposite party no 1 relies on Bangladesh law, he would like to bring to the court’s attention the law and practice at other hybrid/ international tribunals dealing with international offences in relation to contempt. A survey of the relevant statutes, rules, and proceedings at four tribunals – the ICT for Former Yugosalvia, ICT for Rwanda, Special Court for Sierra Leone and Extraordinary Chambers in the Court of Cambodia - undertaken by the International Human Rights Law Clinic, University of California, Berkley Law School at the request of the opposite party No. 1 concluded that contempt of court before these tribunals:
‘is only ever charged in the event of witness tampering, violations of court orders, attempts to bribe judges, and other serious, material interferences with the functioning of the Tribunal. Contempt has never yet been charged against a mere critic of the functioning of an international criminal tribunal, however harsh the criticism of the speaker. (see para 2 of annexure 1)
6. In relation to the International Criminal Tribunal for the Former Yugoslavia (ICTY), the memorandum states:
‘At the ICTY, application of contempt, even at its broadest and most indefinite, is limited to cases in which the defendant knowingly and willfully violated an express Chamber Order or manipulated and intimidated witnesses. Despite numerous criticisms, even of its law of contempt, the Tribunal has not held its critics in contempt nor considered these criticisms a threat to its administration of justice.’ (para 5 of annexure 1)
7. In relation to the International Criminal Tribunal for Rwanda (ICTR), the memorandum states:
“the ICTR rulings on contempt demonstrate that the tribunal reserves sanctions for egregious cases – and has not found that speech critical of the tribunal to justify judicial remonstration.” (see para 19 of annexure 1)
8. In relation to the Special Court for Sierra Leone (SCSL), the Memorandum states:
‘The Special Court has been subjected to more or less harsh criticism by NGOs and members of civil society, including a number of complaints similar to those leveled against the ICT. But the SCSL has never responded with threats of legal proceedings, let alone enforced sanctions for such speech.’ (para 23 of annexure 1)
9. In relation to the Extraordinary Chambers in the Courts of Cambodia (ECCC), the memorandum states:
‘the ECCC has not initiated contempt proceedings against any news media outlet or other party on the basis of criticism or fact disagreements.’ (para 28 of annexure 1)
10. It is evident from this survey that these tribunals take a very relaxed attitude to the many harsh criticisms they face and consider such comments as a legitimate part of a democratic system of justice.

11. The opposite party number one’s contention is that this Hon’ble tribunal should take this into account this jurisprudence not only in considering how to proceed with its show cause notice but also, if it decided against issuing proceedings, what remarks it might consider appropriate to make in reference to the article.

Factual Aspect
12. It is the contention of the opposite party number one that all the comments made in his article have a strong factual foundation.

13. Cognisance based on 20 witnesses: One element of the article is based around what the tribunal stated in its oral order of 18 August 2011. The article quoted a paragraph from the tribunal’s oral order in which it listed 20 specific witnesses – each specified by a number that had been allocated to them – as being the basis upon which it had given cognisance.

14. This particular quote in the article was taken directly from detailed contemporaneous notes written down in a notebook at the time that the order was slowly read out in court. The relevant pages of this notebook have been given to the Hon’ble tribunal. The relevant notebook has also been made available to the Hon’ble tribunal to scrutinize.

15. The veracity/authenticity of the quote used in the article is further indicated by the fact that New Age’s chief reporter wrote an article the very next day after the order was given which was titled ‘20 witnesses attest Sayedee’s guilt: ICT’.

16. The opposite party is not suggesting that the Hon’ble tribunal failed to read all the witness statements and documents given to it to assess cognisance – only that, in its order of 18 August, in which the tribunal explained the basis upon which it gave cognisance, the tribunal stated in court that cognisance of Sayedee was taken on the basis of 20 witness statements.

17. It is perfectly appropriate for a journalist to rely in his reporting and analysis on an order read out orally in court in circumstances when the tribunal does not make its written order available to the public. (see paras 21 and 22 of reply of opposite party, and paras 2 to 10 of supplementary reply)

18. One witness: Following the hearing of 4 September 2011 where the prosecution provided details of which particular numbered witnesses supported which counts, it was possible for the opposite party number one to assess how many of counts was only supported by one witness. Indeed, irrespective of whether the tribunal took cognisance on the basis of only 20 witnesses or on the basis of all the witnesses, the hearing of 4 September confirmed that there were 7 counts which were only supported by one witness. (para 22 of reply of opposite party)

19. Views of ‘many people’: The two sentences setting out the views of ‘many people’ have a clear factual basis as reflected in many media reports. It is evident that this tribunal is no ordinary trial, and that the people in the country have very strong views about both the accused before it and the trial process. This is not surprising since the alleged crimes relate to the independence war of Bangladesh, in which thousands of people fought, where hundreds of thousands were bereaved by the killings of their family members, and which involve the most serious allegations that have ever come before any court in Bangladesh. In such a situation it would be surprising if such strong feelings, emotions and views were not widely evident. (see paras 16 to 19 of reply of opposite party)

20. Witness statements ‘in hand’: The article raises the question of whether the tribunal had in its hand all the witness statements at the time of taking cognisance – an issue that was itself subject to a hearing at the tribunal - the sequence of events stated in the article is factually correct and includes the statement of the tribunal in its order of 21 September 2011 that it did have in its hand all the statements. (see para 26 and 27 of reply of opposite party)

Context, not personal views
21. The opposite party number one submits that it is important for the tribunal to recognise that the paragraphs which are attributed to ‘many people’ are not his own views, and simply provide context to the reader about the environment in which the tribunal is operating. Since the tribunal has not taken any action against people who have stated those views, it would be wholly inappropriate for the tribunal now to take action against the opposite party in relation to describing the views held by others. (see paras 18 and 19 of the reply of the opposite party).

Views on legal issues
22. It is the opposite party’s contention that his legal views set out in the articles are perfectly reasonable and ones which many other lawyers would share.

23. Difficulty in satisfying prima facie test for offence of crimes against humanity through one witness unless statement extremely strong: The reasonableness of this view is reflected by ordinary criminal practice in Bangladesh, and in the jurisprudence of the international crimes tribunals (see para 23 to 24 of reply of opposite party and para 11 to 18 of supplementary reply)

24. Each offence requires cognisance to be taken separately: It is the contention of the opposite party number one that an ordinary reading of section 29(1) of the International Crimes (Tribunal) Act 1973 would appear to require that the tribunal in relation to each offence find a prima facie case in order to take cognisance (see para 25 of reply of the opposite party and para 22 to 24 of supplementary application).

Effect of the article
25. The tribunal should not be concerned with what people may think after reading the article but with the motives lying behind the writing of the article. This is clear from Justice Sinha’s comment (see above, para 3c) that ‘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.’ The fact that a person reading the article may have a better or worse attitude of the tribunal is not particularly significant to the question of contempt.

Motive and intention
26. It is the opposite party’s contention that it is evident that the opposite party did not write this article with any ill motive or intention. This is clear from the following:
- The language of the article is moderate, analytical and is in no way ‘scandalous’;
- The comments set out in the article have a factual basis;
- The title of the article – ‘A crucial period for the International Crimes Tribunal’ - is neutral in tone;
- The sub-title of the article – ‘The tribunal has itself forcefully argued that it will apply the highest standards of due process and has said clearly that it will abide by its own procedural rules. With the tribunal now assessing evidence and considering defence applications about the nature of the offences, it must be at the top of its game, writes David Bergman – is also neutral in tone.
- The article makes constructive critical comment about certain proceedings, without using that criticism for attacking or questioning the credibility or authority of the Tribunal, but with a view to see the Tribunal successful in its subsequent proceedings.
- The legal views set out in the article are reasonable ones
- The writer has a background of being a supporter of the process of accountability for war crimes in Bangladesh (see para 6 to 10 of reply of opposite pary)
- The writer has a legal background (see para 3 of reply of opposite party)

Tribunal’s response to critical comment

27. The opposite party submits that critical comment is part and parcel of a healthy and democratic society and that the Tribunal should only be concerned with comment which results, in the words of Justice Iyer as quoted by Justice Sinha, ‘justice [being] jeopardized by a gross and/or unfounded attack on the Judges, where the attack is calculated to obstruct or destroy the judicial process,’ and that there is nothing in the article which comes anywhere close to crossing that threshold.

28. It is also important to note that the Tribunal has taken no action in comments from both known critics of the tribunal and also supporters of the tribunal that raise much more serious issues about contempt.

29. So for example, on the one hand, it has taken no action when Barrister Moudud Ahmed stated publicly on 3 December that:
a. ‘without the recommended changes, the Tribunal will NOT be fair, independent and transparent. Instead of delivering justice, the Tribunal has instead emerged as an instrument for eliminating political adversaries’,
b. that Salauddin Quader Chowdhury’s ‘execution by way of an unfair tribunal will be no more than extrajudicial killing,’
c. that ‘participation in the tribunal would be providing legitimacy to an illegal and unconstitutional process for extra-judicial persecution of political opponents.’

30. And on the other hand it has also taken no action against ‘supporters of the tribunal’ who state, when the trials are either ongoing or are have not yet stated that the accused men under trial are ‘war criminals’ and show images of them being hanged.

31. In this context, in addition to the arguments already set out and made before the Tribunal, it is the opposite party’s submission that it would be extraordinarily unfair for the tribunal to criticise, yet alone issue contempt proceedings, against a professional journalist writing an analytical article, when it takes no action against people who are making these kinds of statements.

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