Sunday, February 17, 2013

13 Nov 2012: Deputy speaker contempt order

Following on from the previous day Molla proceedings,  the tribunal passed the order on the Mollah defense application relating to alleged contempt by the Deputy Speaker of Parliament.
1. Today is fixed for order on the application filed under section I l(4) of the Act of 1973 on behalf of the accused Abdul Quader Molla praying for initiating contempt proceeding against Respondent Syeda Sajeda Chowdhury, the Deputy Leader of the Parliament, on the grounds stated therein. The Respondent has filed an explanation as asked by the Tribunal. The record is now taken up for passing order.  
2. Mr. Abdul Baset Majumder, the learned senior counsel with Mr. Layekuzzaman Molla, M. Saieed Ahmed, M. Emtiaz Farook and Md. Mainul Islam, counsels appearing on behalf of the respondent has made submissions defending the application and the submissions made by him may be summarized as below:
(i) that the basis of the application is a report appeared in the issue of 28 July 2012 of the daily 'Amar Desh' (Annexure-1);
(ii) that the report Anexure-l is distorted one and it will be evident from the supplementary application and as such the application is not maintainable;
(iii) that the provision of section l1(4) of the Act does not attract the application and its contents as there has been no specific comment intended to cause prejudice the case of a party i.e the accused Abdul Quader Molla;
(iv) that as a leader of the ruling political party responded merely echoed the public perception which in no way has impaired the administration of justice ;
(v) that the comment that the Respondent concedes to have echoed in public is a mere reflection of public emotion , sentiment, frustration and opinion on the issue of prosecuting the persons for the charge of crimes against humanity which cannot be 'calculated' to obstruct or interfere in the proceeding of ICT-BD Case No. 02 of 2012;
(vi) that by echoing the public perception or opinion, the Respondent did not at all intend either to lower down the dignity and image of the Tribunal nor it intended to cause any obstruction to the case of the accused. 
3. Conversely, Mr. Tajul Islam the learned counsel for the accused-petitioner has submitted that the uttering made in public by the respondent, a responsible person and a parliamentarian, has created a reasonable apprehension in the mind of the public as to independence and fairness of the Tribunal. The comment clearly has caused interference to the normal course of administration of justice and as such the conduct of the respondent sanctions initiation of contempt proceeding under section 1 l(4) of the Act.  
Discussion and Decision
4. Latin expression sub judice means 'under a Judge'. If a court is in seisen of a particular case is treated as sub judice. The trial of the instant case [The Chief Prosecutor vs Abdul Quader Molla] is going on i.e in seizer. The instant application has been brought to draw a contempt proceeding for making an ex facie curiae (outside the court) comment on sub judice proceedings of the case before this tribunal.  
5. The application is under Section I 1(4) ofthe Act of 1973. Section 11(4) reads as below: "A Tribunal may punish ony 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 constituted contempt of the Tribunal, with simple imprisonment which may extend to one year, or with fine which may extend to Taka five thousand, or with both. "  
6. Thc application is found to have been based on a report published in the issue of28 July 2012 of the daily 'Amar Desh'(Annexure-l) . The report quotes the following comment allegedly made by the respondent in public:
“Inviting the concerned persons of the government, the acting President of Bangladesh Awami League and Deputy Leader of the House (Jatiya Sangsad) Syeda Sajeda Chowdhury said, ‘The rajakars did not comply with law when the tortured in seventy one (1971). Therefore, there is point to show laws. There is no point to give the sake of law sitting idle. They (war criminals) will stop giving the sake of law if we hang one or two at the first instance. There should not be any farce regarding trail of war criminals; to form a Bangladesh free from rajakars, this trail should be completed soon’.”
7. In reply to the report so published on 28 July issue in the daily 'Amar Desh' the respondent, in paragraph 22 of his explanation, contends that the 'daily Ittefaq', the daily Naya Diganto' and the 'daily Janakantha’ published her statement on 29 August 2012 protesting the distorted report published earlier in the 'daily Amar Desh' that the alleged report was published excluding her words where she referred to other people telling her the 'alleged remark’. Actually, as contended, the respondent, as the chief guest of the meeting at Engineers Institution on 27 July 2012 she remarked :
“No more farce; whenever I go to mass people then they tell me, ‘if one or two (of the accused) are not punished, there is no point to give the sake of law sitting idle, did we take part in freedom fight complying with the law?’”
8. It appears from the supplementary application that in her speech the respondent stated that:
“Whenever I meet mass people, they request me ‘you (government) should come to an end of this farce and if one or two (of the accused) are not hanged then it is my own point borther,………..”
9. Contempt of court is disregarding the court's orders, or in any way interfering with the way the court does its job. We consider that the alleged comment, in no way, has obstructed the proceedings against the accused pending before the Tribunal. We intend to reiterate that the Tribunal is quite independent and it shall render its judicial function independently and shall ensure fair trial as required under section 6[2A] of the Act of 1973.  
10. Thus the comment made in public arena cannot readily be branded as 'substantial interference' with the administration of justice. When determining the prejudicial effect of a comment made in public, the court must consider the effect it would have on a reasonable person at the time of making such comment. It is to be seen whether the comment interfered with the administration of justice and the trial has been affected by such comment.  
11. It is settled jurisprudence that an accused person before a court of law must be tied as innocent until proven guilty, and as such mere demanding conviction and punishment by making comment in a public arena does not automatically constitute interference or obstruction, in any manner.  
12. The Tribunal is mandated to ensure fair trial [section 6(2)A] and an accused before the Tribunal charged with crimes described under section 3(2) of the Act shall be presumed innocent until he is found guilty [Rule 43(2)]. It has been contended that the Respondent merely echoed the public emotion, perception and frustration by making such remark without any intention to cause prejudice 'the case of the accused'.  
13, A general comment or opinion, particularly if it is based on public perception, does not specifically relate to doing anything which tends to prejudice the case of a party before the Tribunal. We agree that the alleged comment does not appear to be of such nature which may tend to preiudice the case of accused Abdul Quader Molla and as such the application, in strict sense, does not come within the ambit of section l1(4) of the Act of 1973. Despite, a responsible person holding dignified and significant position of the Parliament is not expected to make such comment even in the name of echoing public opinion or perception.  
14. However, a responsible person should be restrained and careful in making any such comment on a sub judice matter to get rid of general public baffle. Everybody should bear in mind that it is the law which must be respected by all citizons. Therefore, making comment by any person either in government or of opposition or of the member of any society of the country during the crucial stage of trial ofan accused in a court of law is not expected. This prohibition should be kept in mind not only in the best interest of the accused who has a right to fair trial but also the prosecution and the public who have right to secure a verdict from a court of law that is free from prejudice,

15, Having regard to submissions of both sides and the explanation submitted by the Respondent and in view of reasons stated above, we however expect that everybody should bear in mind that it is the law which must be respected by all citizens. It should not be forgotten too that in the name of exercising one's right to freedom of speech one can not conceivably affect another person's right to be presumed innocent until proved guilty according to law. This Tribunal legally expects that the responsible persons specially those who are associated with the party in power shall prove their prudence in future restraining themselves from foretelling imaginary time limit for disposal of a subjudice matter, in the interest of upholding independence of the Tribunal and fair justice.  
16. With the above observations, the application is disposed of instead of initiating further proceeding

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