Friday, April 25, 2014

Tribunal's written order: 'Contempt proceedings commenced'

Below is a copy of the written order given by International Crimes Tribunal-2 on 17 April 2014.

On an application filed by the applicant intended to bring contempt proceedings against the opposite party Mr David Bergman under section 11(4) of the International Crimes (Tribunals) Act, 1973 for allegedly posting some derogatory comment disparaging the Tribunal upon criticizing its order and judgment in his personal blog namely bangladeshwarcrimes.blogspot dated 11.11.2011 and 28.01.2013 respectively – this Tribunal upon initial hearing, by its order dated 20.02.2014 directed the opposite party to explain his position fixing 06.03.2014 for submitting explanation. Eventually, the matter was taken up for hearing on 27.03.2014.

The opposite party entered his appearance by engaging Mr Mustafizur Rahman Khan, the learned counsel who in his turn submitted explanation detailing his position and countered with the allegation so made by the applicant. He submits that post judgment criticism is permissible if it is done fairly, in the interest of public and in sober language. On the issue of ‘death figure in 1971’ as focused in his first article the opposite party simply portrayed some sources and thus insisted an ending of debate on this issue. This article was circulated on 11.11.2011 after the indictment order on Sayedee’s case was passed. However the opposite party expressed regret as the issue touches the emotion of the nation. The opposite party has just endeavored by his criticism to enable the Tribunal in developing its jurisprudence. The learned advocate for the opposite party also submits that the two other articles reflect merely academic and fair criticism on judgment delivered. Besides, the comment so made questioning the ‘judicial manner’ in one of alleged articles has already been deleted from the blog.

Though not asked for, the applicant has also come up with a reply against the said explanation of the opposite party. Mr Mizan Sayeed, the learned advocate for the applicant submitted that the way the opposite party criticized the judgment of the Tribunal-2 was not fair. Again creating controversy by questioning the ‘death figure in 1971’, the opposite party has caused grave hurt to the emotion of the nation and also belittled the authority of a court of law in penning its criticism on this historically settled issue. It has been further submitted by the learned advocate for the applicant that in addition to making deliberate criticism on sub judice matter the opposite party exceeds limit in making post judgment criticism by undermining the lawful authority of the tribunal. Moreover, mere subsequent deletion of a comment made in the third article does not absolve the opposite party of being prosecuted for his contempible acts, for upholding the image, authority and dignity of the Tribunal and its affairs.

We have heard the parties at length, perused the material on record and considered the submissions so advanced by the learned counsefs of the contending parties.

We have also meticulously perused the contents of the comments/criticism so annexed by the applicant in its application that posted in the personal blog of the opposite party on 11.11.2011 and 28.01.2013, his explanation supported by annexure thereof to which we have given our anxious thought. However, we are not convinced with the explanation so set out by the opposite party. Rather we are in agreement that the conduct and attitude of the opposite party by making above comments prima facie appear to have tended to bring the authority of the Tribunal and administration of the law into disrespect or disregard that have the potential effect of lowering the Tribunal’s repute and thereby undermining public confidence in the administration of justice.

We are of the view that there have been prima facie elements of contempt in the comments/criticism dated 11.11.2011 and 28.01.2013 made by the opposite party which warrants to draw contempt proceedings against him under section 11(4) of the ICT Act, 1973. Thus the proceeding under section 11(4) of the Act is hereby commenced against Mr David Bergman, the contemnor.

Hence the contemnor is directed to show cause within 15 (fifteen) days from date as to why he shall not be punished for making derogatory comments towards the order and judgment of the Tribunal by circulating/posting criticism in his personal blog namely on 11.11.2011 and 28.01.2013 that constitute contempt of the Tribunal.

Let the matter by fixed for further order on 11.05.2014

Since both the parties are present in the Tribunal and the order has been passed in their presence no separate notice is required to be be served upon the contemnor.

Justice Obaidul Hasasn, Chairman
Justice Md Mozibur Rahman Miah,Member
Justice Md Shahinur Islam, Member

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