Wednesday, April 16, 2014

Hearing on 'explanation of criticism' - 31 Mar 2014

This is a summary of the proceedings which took place on 31 March 2014 in Tribunal 2 following the tribunal’s earlier order which sought an explanation from me for alleged ‘criticisms’ in three articles contained in this blog some years ago. The relevant articles are here:

Sayedee Indictment - 1971 deaths (published on 11 November 2011), 

This hearing took place after the filing of a detailed ‘explanation’ of the criticisms contained in three articles. The written explanation, can be seen here – with an index to the key parts. Subsequent to this hearing, a rejoinder to the applicant's written response was also filed with the international crimes tribunal

At the end of the hearing, the court said that it would give judgment on 17 April.

Mustafizur Rahman Khan, counsel for Bergman, started the proceedings.
‘Let me begin by expressing gratitude to this Hon’ble Court for seeking an explanation of the “criticisms”, asking my client to provide an explanation before initiating any proceedings.

At the outset, before going into the details of the explanation, I would like to take this opportunity to set out certain issues.

First, the application refers to three blogs. One published on November 11 2011, which is more than two and half year ago. And the other two published in January 2013.

The point that I would like to make is that that these pieces were published a long time ago – one two and half years, the other over a year ago. During that period these three blogs have been widely read including by the investigators and the prosecutor – since links to these blogs are sent to them.

During this period, until this applicant filed this case, he has not contacted Mr Bergman at all about any reservations or objections he has about the content of these blogs.

Mr Bergman is open to criticism, and if you have a look at the blog relating to the 1971 deaths you will see that it notes that it was amended on 20 March 2013 which was done in response and respect to comments that he received.

However, I would reiterate this applicant has not made any contact with the opposite party – before filing a contempt application.

I say this into order to note that there appears to be an extraneous motive behind this applicant filing this application. If his concern were solely with what he sees as objectionable comments, he had ample opportunity to first seek correction, which he did not take.
Mustafiz then went to read out parts of the ‘explanation’ and started to read out parts. He read out paras 6, 7 and 8.
6. That the opposite party reaffirms that any comments or criticisms he has made about the on-going trial process in his articles and blogs have been made bona fide and in good faith, and are directed at seeking improvements in the trial process, understanding that if the process was not above reproach, and did not meet the standards which the Government of Bangladesh and the Hon’ble Tribunal have themselves asserted and sought for the process, they would be vulnerable to attack by those who deny and obstruct the process of accountability, and that it would not be healthy for a living breathing criminal justice system seeking popular support and legitimacy to be put beyond any comment.

7. That the opposite party earnestly and respectfully prays that, bearing in mind the allowances of fair criticism permitted by the law, the Hon’ble Tribunal will view the blogs in the above context and will also appreciate that permitting third party applicants with no interest or involvement in the trial process to seek orders to stifle legitimate and fair comment made in good faith about the Hon’bleTribunal’s proceedings and with no intention of disrespecting the Hon’ble Tribunals, will be detrimental to the trial process.

8. That on the basis of reported judgments of the Hon’ble Appellate Division of the Supreme Court it is submitted that it is relevant to consider the background of any person who makes comment on judicial proceedings in order to assess the fairness of such comment ...
He said that para 7 set out the gist of the substance of the response.

After reading out para 8, concerning David Bergman’s background in particular his involvement in investigation and documentation through research for the War Crimes File, which was part of the evidence in the case against Chowdhury Mueenuddin and was relied upon by this Honb’le Court, Mustafiz said:
We will consider the Mahmudur Rahman case later, in which the Hon’ble Appellate Division has clearly stated that fair criticism is allowed and is a defence to an allegation of contempt and that in considering this, one should take into account the background of the person who made the comments. In the application, it was stated that Bergman had ‘no background in law’ which we will show is in fact not correct. In fact, it is stated in a previous tribunal order of 19 Feb 2012 (involving a previous contempt case) that Bergman does have a background in law.

I also want to bring to the Court’s attention, another part of the earlier Tribunal [No. 1] order which stated that: ‘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.’ This shows that the tribunal was confortable with criticism and comment about the the proceedings
Mostafizur Rahman Khan then read out para 9 which sets out Bergman’s relevant academic and professional background.

He went on:
The allegation is that these three articles are contemptuous – however the applicant has not said which specific statements in these articles are contemptuous. He has not shown how any specific part of the articles is in breach of article 11(4) of the International Crimes Tribunal Act.

In the absence of any specificity in the application, we have set out an explanation of all alleged criticism contained in the blogs.
He then began to read out the explanation relating to the first blog concerning the number of deaths in 1971 set out in the written application. See para 11 of the written application here

He noted that Bergman used the mention of 3 million dead in the Tribunal order to allow for a discussion of the basis on which the figure was arrived at and the different academic commentary on this.

The Judges then asked several questions including the following: ‘What prompted him to write this blog?’; ‘Why did he create this controversy?’; ‘Why did he write this in the name of fair criticism, in light of the previous order against him’. ‘Why did he write about this issue at this time, after the Sayedee judgment’?

Mustafiz made the following points:
- that the date of this blog was 11 Nov 2011, which was before the date of the Hon’ble Tribunal’s previous order (Feb 2012) relating to the previous contempt application.

- The trial had not started – in fact the order which was being commented on was the charge-framing order,

- This article represents a legitimate academic discussion

- The law allows fair criticism, and criticism assumes a note of disapproval and whether it is fair or not depends on a number of issues, including the accuracy of the content, the kind of language used, the background of the person who wrote it – and that in this context, the article did not contain any factual inaccuracy and used sober language
One of the judges then said, ‘Is it not uncalled for’ . Mostafiz disagreed with this noting that the article was a discussion of a legitimate issue.

One of the judges referred to the use of the words ‘like a mantra’ by Bergman in referring to the use of the ‘3 million dead’ in another of the three blogs about the 1971 war death figures. The lawyer said that Bergman has since amended this phrase, noting that he regrets its use.

In relation to the 3 million figures, Mostafiz said that Bergman understands that the 3 million figure is sensitive – and that he indeed mentioned this in his blog – but that does not mean that it cannot or should not be discussed. It is an ‘issue of debate’ and discussing this does not involve contesting it or denying the enormity of the crimes committed during the liberation war, or the sufferings experienced by those who were victims of these atrocities.

The lawyer further stated that the blog does not go beyond the limits of fair criticism and may be considered to be nothing more than fair criticism of one or two statements of the Tribunal.

He said that the applicants were responding to the issue of 3 million in an emotional manner. And that he understood this since the number has become part of Bangladesh history and culture – but nonetheless emotion should not get in the way of legitimate discussion of the accuracy of the number.

The Hon’ble Tribunal then said that the figure of three million had now been settled by the Appellate Division in the Quader Molla case, and Mostafiz pointed out that this blog was in fact written before that judgment. If raising questions about the figure of three million dead is ‘contemptuous’ following the Appellate Division’s judgment in the Kader Molla case, then all the other books, such as that by Bangladesh’s first Foreign Secretary, his biography of Bangabandhu, that criticize or question the 3 million figure should also be considered in the same way, and be subject to contempt proceedings, he said.

The presiding Judge then asked to hear the other side.

Mostafiz asked however if the Court would hear submissions about the issues in the other two blogs that the applicant had claimed were contemptuous. The Presiding Judge asked what those issues were, and Mustafiz summarized the matters.

He said that one criticism related to the way in which the Hon’ble Tribunal had referred to the issued of holding in absentia trials in the context of international standards. He said that in its judgment the Hon’ble Tribunal referred to the Statute relating to the Court in Lebanon which allowed in absentia trials – but did not mention that the Lebanon Statute allowed in absentia trials only if the accused can subsequently seek a re-trial – which is not the case in the Bangladesh International Crimes Tribunal.

The lawyer said that another criticism made by Bergman involved the the placing of findings in the judgment which were placed before the discussion of the evidence). The presiding Judge stated that such comments could be made.

One of the judges then asked Mostafiz to clarify the status of Bergman in Bangladesh, and the lawyer said that he would have to seek instructions on that matter. Subsequently the court was told that he was in Bangladesh on a no-visa required status, and was employed at New Age newspaper

Applicant’s lawyer
One of the applicant’s lawyers, Mizan Syeed, then responded.

Mizan Syeed first of all read out Article 11(4) of the ICT Act. He then pointed to particular case law and said that these blogs reduced the ‘dignity and honour’ of the Hon’ble Tribunal.

He said that that the case law says that you need to look at the articles as a whole to determine whether they are in contempt.

He then referred to section 19(3) of the ICT Act which states that: ‘(3) A Tribunal shall not require proof of facts of common knowledge but shall take judicial notice thereof.’

He said ‘evidence in these situation was therefore not required.’ He said that the Tribunal had taken judicial notice of three million dead and therefore no evidence to prove it was required.

He said that the fact of ‘three million dead was a settled matter’

He argued that ‘the criticism was not fair as it failed to take into account this provision. It is part of world history.’

One of the judges asked how this dishonours the Tribunal and the lawyer said that this it did and was contemptuous. He said that Bergman repeatedly said that this was not a fair trial.

One of the judges said, ‘Fair criticism is also welcome’.

The lawyer than pointed to one of the blogs with a subtitle, ‘making judgments without evidence’, and said that Bergman was a ‘habitual contemnor – this is not the first time.’

‘This man from a foreign country is teaching us jurisprudence. Criticism, criticism, criticism. He is not impartial.’

He then referred to a part of one of the blog which stated that, ‘It is very odd to position these two paragraphs in the introduction of the judgment and prior to a discussion of the adjudication of the evidence. Unfortunately, it gives the appearance that the tribunal has pre-judged the accused.’

Is this fair critcism or not? the lawyer asked.

He then read out a section from the Tribunal-1’s earlier decision relating to contempt, and said that that the first time he was accused of contempt, Bergman was not punished but seriously cautioned.

The Court fixed 17 April for delivering its order.

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