Tuesday, March 6, 2012

19 Feb 2012: Order on New Age

This is a copy of the written order issued by the tribunal relating to whether or not it would issue contempt proceedings relating to an article published by the news paper New Age.

To see a summary of the arguments made in court by my legal representatives as to why the article was not in contempt of court, see here and here. (A copy of the arguments made specifically by the Editor, New Age, who represented himself, will be put up on this site shortly.)

To read about proceedings that took place after this order was read out, see this post

'Today is fixed for passing order in the above noted matter.

A special report under the caption “A crucial period for International Crimes Tribunal” was published in the daily “New Age” on 2nd October, 2011 which contended the following comments amongst others.

(a) To many in Bangladesh the guilt of Sayedee and the other detained men are foregone conclusions; Tribunal hearings about cognizance and charge framing are simply procedural obstacles on a legal conveyor belt that will inexorably take Sayedee and the others towards their rightful convictions.
(b) The accused are to many people, already proved to be guilty with the Tribunal simply acting as a mechanism to give their guilt, a judicial stamp.
(c) This raises two key issues first; the Tribunal seems to have taken cognizance for many of these twenty offences on the basis of looking at just one witness statement. It is difficult to see, unless the statements were extremely strong, how the Tribunal could come to the conclusion that there is ‘prima facie’ evidence for the commission of an alleged ‘crime against humanity’ which took place forty years ago just on the basis of one witness statement.
(d) The Rules, however, are clear that cognizance must be taken of each offence. Moreover there is a separate issue about whether the Tribunal even had, in its hand all the witness statements when it took cognizance.

Upon perusal of the said report this Tribunal upon being prima facie satisfied that this report was published in order to tarnish the image of the Tribunal and to paint it as a biased forum of justice, issued show cause notice upon the 3(three) opposite parties, 1. David Bergman, editor special reporter, NEW AGE. 2. Nurul Kabir editor, NEW AGE and 3. A.S.M Shahidullah Khan Publisher and chairman of the editorial board NEW AGE, to show cause why a proceeding under section 11(4) of the International Crims (Tribunals) Act, 1973 shall not be initiated against them for the contemptuous report mentioned above.

On receipt of the notices, opposite party Nos. 1 and 3 appeared through the counsel and submitted written replies while opposite party no. 2 appeared in person and submitted written reply to the notice.

Opposite Party No. 1 Mr. David Bergman in his reply contended that he neither has nor had any intention to make any contemptuous statement or deliberately distorted any judicial order in order to tarnish the image of this Tribunal in any way nor paint it as a biased forum of justice rather the said report in question contains fair comment on judicial proceedings expressed in rational and sober language without being colored by any partisan spirit or without any intent to lower down the image of the Tribunal in the eyes of the People. It was also contended therein that the opposite party no. 1 has been closely involved in actions to ensure that those accused of perpetrating war crimes and crimes against humanity during our liberation war of 1971 are brought to trial and through a fair trial if found guilty then those are punished and that he has the highest respect for this Tribunal and its commitment to adhere to the standards of fairness and impartiality in general and in particular, to conform to the standards that this Tribunal has set for itself.

The opposite party no. I obtained L.L.B degree in law and politics from Birmingham University in 1986 and L.L.M degree with merit from the London School of Economics in 1990 where he took courses in amongst others, international and Comparative Human Rights Law and Law and Society in South Asia. For many years he acted as a journalist for both newspapers and television. He was the main reporter in the documentary “The war crimes files” which was broadcast in channel 4’ U.K. in 1995 and also in Bangladesh TV after 1996. This report was regarding three Bangladeshis settled in Britain, ex-members of Jamaat-e-Islami and its student wing who had allegations of committing war crimes during 1971 and for that matter this opposite party no. I won a Royal TV society award. Many reports of him have been published in different newspapers and magazines through out the world. He has a continuing interest in accountability for war crimes during 1971 war of liberation. He collected evidence by way of affidavit from key witnesses of the alleged war crimes which were sent to Scotland yard for prosecution of the persons who were the subject matter of the film, which was referred to government of Bangladesh through Bangladesh High Commission in late 1990s. He also submitted a suggestion to the authorities for amendment of the International Crimes Tribunal Act, 1973 to ensure a fair trial. Moreover, since establishment of the Tribunal he has been attending and reporting on its proceedings on a regular basis as a journalist. This opposite party no. 1 has relevant background and law in journalism, with specialist knowledge, interest and personal commitment to ensure accountability for war crimes committed during 1971 war of liberation.

With regards to paragraph (a) and (b) in the order, the opposite party no.1 submitted that they do not contain any criticism of the Tribunal but merely referred to the opinion expressed by prominent public and he does not hold such views. As regards the statements of paragraph (c) of the order, it was submitted that it was a permissible fair comment and the judicial orders of the Tribunal has not been distorted. In respect of paragraph (d) he submitted that this also represents a fair comment based on Rule 29(1) of the Rules of Procedure. Regarding the criterias required to fulfill where cognizance is taken and regarding the correctness of the opposite no. 1's understanding the said Rule, there may be disagreement but it cannot be said that the understanding was unreasonable and as such cannot be regarded as contemptuous. It was submitted that upon perusal of the whole report it will be clear that it was a fair comment that those comments being fair comments come under the purview of the fair criticism and in know way it can be termed as contemptuous. It was also stated therein in the reply that even if after consideration of all these, it is found by the Tribunal that by writing this report the opposite party no. 1 has committed contempt of the Tribunal, he would out of his respect for the Tribunal convey his sincere regret to it.

Opposite Party No. 2 Mr. Nurul Kabir Editor New Age, has filed another reply to the notice wherein it was contended that he has consistently fought in his capacities against the political enemies of democracy, economic and cultural in equalities and communalism of all sorts since his student life. He has contributed to the social political and cultural movements over the passed decades eventually made possible the setting up of the Tribunal to try the alleged perpetrators of the war crimes and he asserted that he has not committed any offence of contempt against this Tribunal by publishing the report in question; as editor he has arranged for truthful coverage of the proceedings of the historically important trial since the Tribunal come into existence and occasionally published critical analysis of the mode of operation of the Tribunal with a view to co-operating with the Tribunal in its proper administration of justice. The report was a critical piece of that which according to him may represent deviation from the standard procedure of conducting the trial, so that the Tribunal may modify its course for the greater credibility of its conduct. The editor is responsible for implementing the policy with the active assistance of a core group of intellectually capable and professionally committed journalist. And the New Age is committed to the cause of bringing the war crimes perpetrators to justice by a fair and credible trial. It is for the trial of the alleged criminals to ensure justice and also to discharge the universally recognized democratic responsibility of bringing to justice the perpetrators of war crimes, crimes against humanity and genocide. It does not seek any vengeance in the process but seeks justice so that Bangladesh can tell the whole world with pride that their population is much superior to those who committed heinous crimes against them. New Age has not brought the authority and the administration of law into hatred and or disregarded nor has it interfered with or prejudiced any party in litigant and the witnesses during the litigation as such has not committed any offence of contempt; nor it has obstructed or abused the Tribunal, disobeyed any office orders or directions nor did anything to prejudice the case of a party before it nor has brought the Tribunal nor any of its office members into hatred or contempt. As such section 11(4) of the International Crimes Tribunals Act, 1973 does not apply in this case. It was asserted that New Age is the last newspaper to do anything which comes under the purview of section 11(4) of the Act. It has rather truthfully raised certain question about workings of the Tribunal to help it maintain its image as credible forum of justice so that it can successfully hold the trial of the perpetrators which will brighten the image of the people of Bangladesh, and in doing so New Age has truthfully portrayed certain perceptions of many people about the trial process. They took it as their professional responsibility to keep the public informed about every detail of the historically important event on the one hand and providing them with objective analysis of the working of the Tribunal on the other.

In the mention paragraphs for which the instant notice has been issued, the writer opposite party no.1 has in fact truthfully articulated the state of mind of a section of our people who are passionate about the crime and punishment of the perpetrators, has described a ‘fact’ of life in Bangladesh. This is not the view of the writer, a foreign journalist. The sentence that “those people concerned about issues of due process and fairness will recognize that the credibility of these trials will be determined by the decisions of the Tribunal made on assessing evidence on how it interprets the offences set out in the Act and of course on the reasoning it provides in the decisions” will show that the writer had no intention to make assertion against the Tribunal but he asserts that the things will be decided when the Tribunal passes its orders on interpretation of law. This can not be contempt of court under any available definition regarding it. Although the report contains some criticism of the Tribunal workings but that is a fair criticism backed by unambiguous truth and therefore not contemptuous. Moreover many personalities of the country belonging to party in power and opposition and also civil society members are criticizing the Tribunal and commenting in the trial process even wrongly and those matters have not been brought to notice by the Tribunal but the report being a fair report containing fair criticism of the Tribunal is facing the contempt charge. Some more issues were brought in the reply of the opposite party no. 2 but as those does not correspond to this notice, were not considered by this Tribunal.

Opposite Party No.3 ASM Shahidullah Khan, Publisher of the New Age in his reply stated inter-alia that he neither has nor had any intention to aid in making any statement which deliberately distorts any judicial order and tarnish the image of the Tribunal in any way or paint it as a biased forum of justice. The said report contains fair comment on judicial proceedings expressed in rational and sober language without being colored by any partisan spirit or approach and without any intent to scandalize the Tribunal or lower the image of the Tribunal in the eyes of the people and it does not transgress the limits of permissible fair comment under the law. Even if it is found otherwise upon consideration of this reply, the opposite party no. 3 would out of his respect for the Tribunal convey his sincere regret to it.

Opposite Party No.3 was actively involved in the political movement which led to the creation of Bangladesh, was freedom fighter in the war of liberation and has been closely involved in actions to ensure that the accused of war crimes and crimes against humanity are brought to trial and if found guilty through a fair trial are punished and victims and survivors provide with reparation and redress, and he would therefore not take any action that could prejudice the attainment of such prejudice. He is involved in the management and day to day administration of the newspaper and does not interfere in the news or editorial content of the newspaper in any way and does not have any prior knowledge of the news and editorial content which is published in the newspaper. When the report in question was published, the opposite party no. 3 was not in Bangladesh but upon perusal of the said report, he adapts the same view that the report is not contemptuous and he is not liable to be proceed against under the Act.

The opposite party no.3 stood first in combined merit list in S.S.C examination 1965 in Dhaka Board and got a Class Honors Degree in physics from University of Dhaka in 1971. After the crackdown of the Pakistan Military on the night of March 25, 1971 the opposite party No.3 was amongst the first Freedom Fighters to join the 1971 War of Liberation, having joined the Liberation forces on March 28, 1971. Then after receiving arms, his group entered Dhaka city and organized guerrilla activities and arranged for different shelters in Dhaka. Four of his brothers also took part in the war of liberation and one was interned by the Pakistan army. His name has been mentioned in different books regarding the war of liberation.

The opposite party No. 3 shared extremely close relations with Shaheed Janoni Jahanara Imam, celebrated writer, war crimes activist and mother of martyred freedom fighter Shafi Imam Rumi, from 1972 till her death in 1994. The opposite party No.3 supported her materially, physically and emotionally throughout this time. He was actively involved with the Ghatak Dalal Nirmul Committee, led by Shaheed Janoni Jahanara Imam, a civil society platform demanding the trial of war criminals and important meetings of the Committee were held at the opposite party No. 3’s residence. He took care of Shaheed Janoni Jhanara Imam in her fight against cancer, alongside her surviving son Jami, and attended her in her death bed during her last days in the United States.

The opposite party No. 3 is married to a fellow freedom fighter Dr. Naila Khan, also a member of an esteemed family of freedom fighters, including her father, Col. Quazi Nuruzzaman, Sector commander, Sector 7, during the War of Liberation of Bangladesh. The opposite party No. 3 provided material and financial support to Shaheed Janani Jahanara Imam and Col. Quazi Nuruzzaman in their efforts to organize the ‘Gana-Adalat’ (People’s Court), a symbolic protest event, to build public opinion and awareness of the crimes perpetrated by war criminals so that the demand for the establishment of a tribunal to try accuseds alleged to have committed war crimes gathered momentum.

The opposite party no.3 did not deliberately undertake aid or condone any course of action which may distort the orders of the Tribunal or tarnish its image before the public. He can not imagine that there would be any one else in Bangladesh more eager than him in seeing the Tribunal succeed in its objective of bringing to justice those accused of having committed crimes against humanity and punish those found guilty upon the conclusion of a fair trial. The report in question contains fair comments and criticism of the Tribunal as such he submitted for release from the charge by recalling from the notice.

We have heard the deliberations made elaborately by Mr. Mustafizur Rahman Khan, the learned counsel who appeared for opposite party nos. 1 and 3 and opposite party no.2 in person and perused the explanations submitted by them and gave our anxious thought over the matter While arguing the case on behalf of the opposite parties, it was contended that in the case of Riaz Uddin Khan Advocate and another vs Mahmudur Rahman and others being contempt petition no. 12 of 2010, Mr. Justice Surendra Kumar Singha a Judge of the Appellate Division of the Supreme Court of Bangladesh held that fair criticism of judicial proceeding 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. Justice Singha by quoting from the case of EM Shankaram Namboodiripad Vs T Narayan reported in 2 SCC325 held that all criticism of the judiciary must be strictly rational and sober and proceed from the highest motives without being coloured by any partisan spirit or tactics. In another case being Riaz Uddin Khan Advocate and another Vs Mahmudur Rahman and others being contempt petition no. 5 of 2010, Justice Surendra Kumar Singha on fair criticism held that “a fair criticism of the conduct of a justice 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 fa1th 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 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”. By referring the case of suo ­moto contempt petition no. 10 of 2001 involving writer Arundhoty Roy, where Justice Sethy of Indian Supreme Court was the author, Justice Singha observed that “fair criticism of the conduct of a Judge, the institution of the judiciary and its functioning may nor amount to contempt if it is made in good faith and in public interest. To ascertain the good faith and the public interest the courts have to see all the surrounding circumstances including the person responsible for comments, his knowledge in the field regarding which the comments are made and the intended purpose sought to be achieved”. In P.N Duda Vs P. Ship Sonkor reported in 3 SCC 167 the Appellate Division of our Supreme Court held that “In a democracy, judges and courts alike are, therefore subject to criticism and if reasonable argument or criticism in respectful language and tempered with moderation is offered against any judicial act as contrary to law or public good, no court would treat criticism as a contempt of court.

In the judgment of contempt case Nos. 12 of 2010 and 05 2010 Justice Singha by bringing a border line in the consideration of fair trial observed, “A journalist can not be allowed to make reckless criticism of the courts and the judges by abusing the process of the courts, But when that criticism was based on obvious distortion or gross misstatement and made in a manner which seems designed to lower respect for the judiciary and destroy public confidence in .it, it could not be ignored.” We can take it into our consideration that in both the two cases, it was found by our Appellate Division that the respondents has committed offence of contempt of court and they were convicted and sentenced.

Upon consideration of those decisions of different courts we are to see whether the report in question contended a fair criticism or this criticism is a reckless one and whether it is coloured by any partisan spirit or tactics and whether it has been made in good faith and in public interest and whether the writer had sufficient knowledge on the subject.

The main contention of the opposite parties was that they have not done any act which comes under the purview of section 11(4) of the Act. They are quite educated persons and the Opposite Party No.1 has understanding of law; the special report was written and published in the newspaper. The report contained some statements which were fair criticism and published in order to enable the Tribunal so that it can look into the correctness of the proceedings and the legality of the order. The criticism was strictly rational and sober and proceed form the highest motives without being coloured by any partisan spirit or tactics. These were made in good faith and for public interest. The opposite parties are well known persons and they have got highest respect for the Tribunal, they have fought for the establishment of the Tribunal, and they want that the perpetrators be tried in a fair way so that the whole world accept that and Bangali nation can show the world that they have tried the perpetrators without any vengeance. As such the notice issued upon them may be withdrawn.

Now let us consider how much the contention of the opposite parties can be accepted. Section 11(4) of the International Crimes (Tribunals) Act reads as follows:

“A Tribunal may punish any person who obstructs or abuses its process or disobeys any of its orders or directions or does anything which tends to prejudice the case of a party before it, or tends to bring it or any of its members into hatred or contempt, or does anything which constitutes contempt of the Tribunal with simple imprisonment which may extend to 1 (one) year or with fine which may extend to Tk. 5(five) thousand or with both”.

The report in question is the subject matter of this proceeding. We are to see only whether the opposite parties have done anything which constitutes contempt of the Tribunal and no other ingredient of this section. Upon perusing the replies submitted by the opposite parties and hearing them, we understand that their case is this that no contempt of the Tribunal has been committed by writing, editing and publishing the report in question as it contents fair criticism and true reporting of the proceedings made in good faith.

In dealing with the case we are to consider the facts which resulted the publication of this report. The formal charge in the case of Delowar Hossain Sayeedi, ICT-BD Case No. 01 of 2011 was submitted on 11.07.2011. Along with the formal charge the investigation report, the statements of witnesses and other documents were submitted and 3 DVD cassets were also submitted containing all the documents including full statements of witnesses. It is true that statements of witnesses were submitted partly due to mistake of the prosecution but the Tribunal could see the DVD cassets and got and perused the full statements of all the witnesses. Upon perusal of the materials, cognizance under section 3(2) of the International Crimes Tribunal Act was taken as it was found that those disclose a prima facie case for trial of the accused. Then the defence filed an application for review of the order dated 14.07.2011 taking cognizance of the offence and this review was heard and rejected on 18.8.2011, prayer for recalling the order dated 14.07.2011 was also field and it was also rejected on 21.09.2011. In the order rejecting review we have clearly observed and found that “Upon perusal of documents we find materials are available in the matter of taking judicial notice to the fact and whether any offence on that has been committed under the Act. Upon perusal of the statements of witnesses and the formal charge we are of the view that the formal charge and the statements of witnesses do show that materials of commission of the offence under the Act are available against the accused. As per documents available before the Tribunal it appears that the accused was also involved in abduction and killing of unarmed civilian persons and some Hindu minorities, Awami League supporters; allegations are also available that he forcefully converted some people into Muslims from Hinduism and all these acts come under the purview of the crimes against humanity and genocide. Thus considering all these things this Tribunal took cognizance of the offence against this accused petitioner. While disposing application of the review, we again perused all this statements and observed that those stated earlier are available in the records as such we do not find any merit in this review application”.

The report in question was published on 02.10.2011 where the question of taking cognizance was discussed by the writer and instant notice was issued by order dated 03.10.2011. Taking cognizance is merely mental decisions of a judge to take a judicial notice of a case and in the order it has clearly been stated how the judges applied their mind in taking cognizance of offences in that case; even in the order of rejecting review the things were reiterated.

There being no scope to weigh the evidence available when cognizance is taken but in the report in question concern has been raised as to how, on the basis of statement of I witness cognizance of 20(twenty) offences were taken. We do not get anything that we noted the fact that 20 (twenty) offences contains statement of only one witness and that is not the matter at all for consideration at the time of taking cognizance. An accused may be convicted even on the basis of evidence of one witness if that is found to be true and believable but that question does not come while the cognizance of an offence is taken. The writer has gone further to write “It is difficult to see unless the statement were strong, how the Tribunal could come to the conclusion that there is prima facie evidence for the commission of an alleged ‘crime against humanity’ which took place 40(forty) years ago just on the basis of one witness statement. It appears that this has been brought and stated in the report without any basis of law and from the idea of the writer himself without any support of law, and action of the Tribunal has been criticised by the writer beyond the scope of law. Another question has been raised about the honesty of the judges. The report contains a sentence in the following manner. “Moreover there is separate issue about whether the Tribunal even had in its hand all the witness statements when it took cognizance”. We are astonished to see this language in the report. The writer has raised the question that the Tribunal passed its order and took cognizance without having statements in their hand. This is not only unwarranted but also highly contemptuous. It is clear that the writer by writing this has under mine the judges to the public at large and we do not know how he will avoid this allegation and in the whole reply he has not given any statement as to how he made it. He has only taken the plea that the report contains statements of fair criticism. If this is fair criticism then what else will be unfair? Regarding the statement contained in paragraph (a) and (b) of the notice, we accept the submissions that they had written it considering the views of some of the people. It is also true that our view does not agree to it that it gives the true picture, rather it gives a wrong picture about the people sentiment. Moreover the judges are not to look to the sentiment of the people but to look to the facts and law as to whether the offences has been committed by the perpetrators charged with. They do not require to see the sentiment of the people. Even then when as a journalist one claims that the sentence is fair criticism, we accept it reluctantly. But our view is clear that by writing this sentence, they have given a wrong signal to the people about the Tribunal. It is nothing but misleading and this also brings the allegations of contempt against them. But as regards the statements (c) and (d) made in the report, it is clear that those can in no way be termed as fair criticism but those are criticisms containing a wrong information and analyses. This was made by a person having sufficient knowledge of law and journalism and as such can not be ignored. There is nothing on record that those were made in good faith and in public interest, and that this cannot be expressed as correct reporting of the fact rather the opposite is available. By writing the statement in (d), what massage the report has given to the public? The answer is that the judges of the Tribunal pass order without having materials in the record before them but falsely write that they have perused all the materials. This is high grade of contempt. So considering all these aspects, the report, the show cause notice, the reply given by the opposite parties and the submissions made by them in the Tribunal, we have no hesitation in finding that the statements made in the report as has been shown in the notice do constitute contempt of the Tribunal and the writer, editor and publisher i.e. the opposite parties are liable to be proceeded under section 11(4) of the International Crimes (Tribunals) Act, 1973, as offence of committing contempt has been established against them.

Now there is the other side of the coin. The opposite party No.1 in his reply has stated regarding the activities which he has done or has been doing for the Tribunal so that the Tribunal can function properly and be accepted to the people. From the very beginning, we have found him present in the court room and reporting the daily affairs of the Tribunal. Although sometimes we have found him making wrong reports and once we even cautioned him. He is regularly reporting and we understood many of his reports has been considered by the foreign personnel and organization as he is a foreigner and according to them, he can express the happenings in English correctly. His past activities in favour of the creation of the Tribunal and his agony for having a fair trial is clear to us. Moreover he has expressed regret in the reply although not in clear terms and we want to consider that also. We are of the view that ends of justice will be met if we give serious caution to him to be more careful in future and exonerate him from the charges. We believe, he will be more careful in future and try to help the Tribunal in reaching to its goal of holding fair trial by his valuable reports and comments.

As regards the opposite party No.2, the editor, we also find that he had a positive role for the Tribunal so that it can function properly and be accepted to the people. But we find that he acts without knowing the position of law. The reply of him contains may statements which in no way be required in this reply. Moreover he even did not express regret that means he is sure that no contempt has been committed or he does not bother for any result in the proceeding. Considering all these things, we find that although the opposite party No.2 is a journalist but he is influenced by hot sentiments which he should not contain. He even did not engage anybody to represent him rather represented himself in this Tribunal without any knowledge of the International Law. However we have found that the NEW AGE of which he is the editor is always committed to the cause of fair trial and only the instant report, we have found otherwise as such we want to show magnanimity to him by exonerating him from the charges after giving serious caution to him to remain careful in future.

As regards the opposite party No.3, we are of the view that, when he was absent on the date, the report was published, we want to exonerate him from the charges. We believe, all these will not be treated as weakness of the Tribunal, rather will give a guide line to everybody as regards how to deal with this Tribunal, because this Tribunal is a new one and wants co-operation from all in achieving its goal of fair trial and justice. Moreover in legal matter the writer and the editor should keep in their mind the understanding level of the general people about law. With this, the proceeding is disposed of.'

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