Saturday, October 11, 2014

Blog contempt case, response to court

Below is the 'affidavit in opposition' which was filed in court and which sets out  the main arguments why the contempt of court charges involving three articles in this blog are not sustainable. You can also download the whole document here.

To understand the background to this case, see here.

The arguments in the affidavit, which were supported in oral arguments, can be summarised as follows
1. That the proceedings are not 'maintainable' (i.e were procedurally unlawful), as they were not brought by a party to the tribunal (i.e an accused, a prosecutor, an investigator, or a judge) but by a person, 'a third party', who had no previous role in the tribunal. In no other proceedings before the tribunal has a third party been allowed to file an application, yet alone to initiate and prosecute proceedings - which is the situation here, and there is no procedure to allow it. Such third party proceedings before this tribunal are totally unprecedented. (See para 8 to 14
2. That the proceedings are an 'abuse of process' due to the unprecedented length of time between the publication of the articles and the date at which proceedings were initiated - a period of over two years in relation to one of the articles, and over one year in relation to the other two. In Bangladesh and in other common law countries, the practice is that proceedings for alleged contempt of court through 'scandalization' are initiated within days or weeks of the publication of the alleged contemptuous article - not years. (See paras 15 to 22)
3. That both international and Bangladesh case law states that proceedings should only be initiated ‘with serious circumspection’, and only used in cases of ‘extreme necessity’, where the situation is ‘very grave and serious’, or ‘extraordinary’ - and in this case, there is clearly no urgency as evidenced by the length of time that has elapsed, and the decision of prosecutors not to take action themselves. (see para 24) 
4. That in the above context, tt is also an abuse of process to continue with these proceedings as there is no right of appeal for the defendent - a situation unprecedented in any court of Bangladesh or in any other jurisdiction (see para 25) 
5. That if the tribunal was of the view that the proceedings are maintainable are not an abuse of process, are ‘of extreme necessity’, and it is irrelevant that there is no right to appeal, then the criticism contained in the articles fall well within the limits of fair criticism as permitted by the law. (see para 26) 
 - for law on fair criticism, see paras 27 and 34. To download a document, filed in court            which dealt with case law involving contempt, click here
 - for my relevant background, see para 36.  
 - for background on the blog, see paras 36 to 40 
 - to see why comments made in 1st article falls within fair criticism, see paras   41 to 46 
 - to see why comments made in 2nd article falls within fair criticism, see paras 47 to 52 
 - to see why comments made in 3rd article falls within fair criticism, see paras  53 to 61
The affidavit in opposition

Here is the affidavit in opposition, filed in court.
1. That I am the contemner in the above Miscellaneous Case and therefore, being conversant with the facts and circumstances of the case, I am competent to affirm this affidavit.

2. That upon hearing an application filed by the applicant alleging that the contents of three posts/articles published by the contemner in his blog titled “Bangladesh War Crimes”, one on 11.11.2011 and two on 28.01.2013, were contemptuous of the Hon’ble Tribunal and praying for contempt proceedings to be drawn up against the and for him to be sentenced accordingly, the Hon’ble Tribunal, in the first instance, by its order No. 2 dated 20.02.2014, was pleased to direct the contemner to explain the criticism circulated in his blog. (It may be mentioned that in actual fact, one of the two articles stated to have been published on 28.01.2013 was actually published on 26.01.2013).

3. That the said order dated 20.02.2014 having directed the contemner to explain his criticism, and therefore understanding that he was not being directed to show cause as to why contempt proceedings should not be drawn against him, the contemner submitted an explanation dated 18.03.2014 explaining the criticism contained in the three articles in issue.

4. That upon hearing the parties, and considering the explanation submitted by the contemner, and holding that the conduct and attitude of the contemner appear to have tended to bring the authority of the Hon’ble Tribunal and the 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, and taking the view that there are prima facie elements of contempt in the comments/criticism dated 11.11.2011 and 28.01.2013 which warranted drawing up contempt proceedings against the contemner, the Hon’ble Tribunal was pleased to pass order No. 7 dated 17.04.2014 commencing proceedings under Section 11(4) of the International Crimes Tribunal Act, 1973 and directed the contemner to show cause as to why he shall not be punished for making derogatory comments towards the order and judgment of the Tribunal by publishing criticism in his personal blog namely on 11.11.2011 and 28.01.2013 that constitutes contempt of the Tribunal.

5. That before showing any cause, the contemner would, at the outset, like to place on record that he has the highest regard and respect for the judiciary of Bangladesh in general and, in particular, the International Crimes Tribunal and its member Judges, all of whom are Hon’ble Judges of the High Court Division of the Supreme Court of Bangladesh. It was never the contemner’s intention to make any remark or comments that may be construed as tending to bring the authority of the Hon’ble Tribunal and administration of law into disrespect or disregard or has the effect of lowering the Hon’ble Tribunal’s reputation.

6. That the contemner reaffirms that any comments or criticism he has made about the proceedings of the Hon’ble Tribunal in his articles and blogs falls within the parameters of permissible fair criticism, and have been made bona fide and in good faith, in the belief that such comments and criticism are allowed in a democratic society adhering to the principles of freedom of thought, expression and speech, and that allowing such comments and criticism is in the public interest inasmuch that the debate and discussion that may ensue from it permits continual improvements in, and is an integral part in the evolution of, any living and breathing legal system. Due to the high respect held by the contemner for the Hon’ble Tribunal and its process, he would certainly like to express regret if the Hon’ble Tribunal is of the view that his writings in any way do tend to bring the authority into disrespect or lower its reputation.

7. That until the order dated 17.04.2014, the contemner was not directed to show cause as to why contempt proceedings should not be drawn against him, the earlier order dated 20.02.2014 having asked him only to explain his criticisms. Since the Hon’ble Tribunal has as of yet only taken the view, in its order dated 17.04.2014, that there are prima facie elements of contempt in his comments/criticisms, the contemner understands and respectfully submits that the Hon’ble Tribunal has not taken a conclusive decision on whether contempt has, in fact, been committed, and accordingly, the contemner files this affidavit in opposition in submitting that (a) the application of the above Miscellaneous Case is not maintainable in law in that it was brought by a third party applicant which is not permitted under the law and rules regulating the Hon’ble Tribunal; and (b) proceeding with this matter would be a total abuse of process due to the delay in bringing the matter to the Hon’ble Tribunal’s attention, and initiating these proceedings, particularly when prosecutors and investigators were fully aware of the content of these articles ever since they were published; and (c) that Bangladesh and other courts have consistently held that there must be a ‘grave need’ or ‘extreme necessity’ in order for contempt proceedings to proceed, and the failure of the prosecutor to initiate any proceedings against these articles soon after their publication is a very clear indication that these essential requirements do not exist; (d) the absence of any right for the contemner to appeal any aspect of these proceedings makes their further continuation in itself an abuse of process – or at the very least, in the context of the matters set out above, require that the Hon’ble Tribunal is particularly attentive to protecting his rights and therefore bring these proceedings to an end; (e) in any case, the contents of the articles dated 11.11.2011, 26.01.2013 and 28.01.2013 fall well within the parameters of “fair criticism” permitted by law and are not contemptuous, and that the contemner is not guilty of contempt and ought therefore not be punished for having committed any offence.

8. That the above application has been brought by a third party applicant, who is not a prosecutor, an investigator, an accused, a defence lawyer, a witness or any other person who is involved in the functioning of the Hon’ble Tribunal or any of the proceedings before it.

9. That it may be noted that the filing of the above application was not preceded by any notice, either to the contemner asking for an explanation of his comments and articles, or even for a withdrawal or correction of them, or a notice to the Office of the Investigator or Prosecutor of the Hon’ble Tribunal asking for contempt proceedings to be investigated, filed and prosecuted against the contemner.

10. That it may also be mentioned that the proceedings are entirely predicated on the legality of the application, inasmuch that the order dated 17.04.2014 states that the proceedings are based “on an application filed by the applicant”, that the order summarises the applicant’s submissions and the order does not state which parts of the articles are being regarded as prima facie contemptuous, thereby requiring the contemner to revert back to the application of the applicant in responding to the notice to show cause.

11. That in this regard, the contemner respectfully submits that the Hon’ble Tribunal is a special tribunal established under the International Crimes (Tribunal) Act, 1973 and governed by the said Act and the Rules framed there under. Neither the provisions of the 1973 Act nor the Rules framed there under contemplate or allow for a third party to make any application to the Hon’ble Tribunal and, moreover, to maintain and prosecute such an application praying for punishing a person for contempt under Section 11(4) of the 1973 Act.

12. That it is respectfully submitted that under the provisions of the 1973 Act, any proceedings before the Hon’ble Tribunal can only be initiated by an Investigation Officer and prosecuted by a Prosecutor (both of whose offices were, as a matter of fact aware of the articles in question at the time of their publication but chose not to take any action) and the 1973 Act does not permit a private prosecution.

13. That moreover, since the establishment of the Hon’ble Tribunal, to the best of the contemner’s knowledge, it is submitted there is no precedent of a third party being allowed to file any application before the Hon’ble Tribunal of any kind (including one alleging contempt), maintain it and make submissions in support of it.

14. That it is respectfully submitted, therefore, that the instant proceedings are liable to be dismissed as being not maintainable and that allowing such proceedings is against the public interest inasmuch that it would set a precedent and could open up a floodgate of private prosecutions before the Hon’ble Tribunal.

15. That it is respectfully submitted that the instant proceedings are liable to be rejected for being an abuse of process inasmuch that they have been filed after an inordinate delay. The application initiating the instant proceedings has been filed over 2 years and 4 months after the publication of one of the articles and 1 year and 1 month after the publication of the remaining two articles. While Section 11(4) of the 1973 Act does not provide a limitation period within which charges under the said provision should be brought, it is submitted that allowing such charges to be brought after such a long period of time following the publication of the articles would represent an abuse of process and would be against the public interest. The fact that the articles were in the public domain for such a long period, and no prosecutor took any action against them, and no person sought action from the prosecutor, demonstrates that the material is not contemptuous.

16. That in this regard, it may be noted that in India for example, Section 20 of the Contempt of Court Act, 1971 requires that any proceedings for all categories of contempt must be initiated within a maximum period of one year from the date on which the alleged contempt was published. Moreover, with regard to the issue of contempt relating to “scandalisation of court” (which is the form of contempt being alleged here) all available precedent in all jurisdictions, including Bangladesh, show that proceedings have been initiated within a matter of days of the publication of the article, document or speech in issue since they are made on the basis that there is an allegation of clear and present risk of lowering the dignity of the court and damaging the administration of justice – and not after one year or even two years.

17. That there is simply no precedent in Bangladesh or in any other jurisdiction of contempt proceedings (involving alleged “scandalisation of court”) being brought after such a long interval after the date of publication of the article in issue as has been done in the instant case. Moreover, the articles currently in issue were not only published a long time ago, but concern proceedings of the Hon’ble Tribunal which have also concluded long ago, and which are no longer of current or topical interest or discussion in the public forum.

18. That, in addition, it is not as if these articles have only recently found their way into the wider public domain, and it is only now that the opportunity to take action has presented itself. In this regard, it may be noted that the blog of the contemner is a well known website among those taking an interest in following the proceedings of the Hon’ble Tribunal, including, almost certainly, the Investigators and Prosecutors of the Hon’ble Tribunal, many of whom are likely to have either read the articles or been informed about them. It may be noted here that acting in his bona fide interest in having his comments on the proceedings of the Hon’ble Tribunal being widely disseminated in order to facilitate constructive discussion and debate among those who may be interested in the issue, the contemner routinely forwards to such persons web-links to his blog articles through e-mails.

19. That in this context, links to the article dated 11.11.2011 were sent at the time, by e-mail on 15.11.2011, to amongst others, a Prosecutor (Mr. Zead Al Malum) and a future Prosecutor of the Hon’ble Tribunal (Ms. Tureen Afroz), the Co-ordinator of the Investigating Agency of the Hon’ble Tribunal (Mr. Abdul Hannan Khan) and the Chairman of the National Human Rights Commission (Prof. Dr. Mizanur Rahman. Web-links to the two subsequent articles published in January 2013 were also forwarded (one on 26.01.2013 and the other on 04.02.2013) to these same people as well as to the e-mail address of the then Registrar of the Hon’ble Tribunal. Yet none of these persons felt compelled in the days immediately after their publication, or indeed in the long period since their publication, to bring these articles to the notice of the Hon’ble Tribunal alleging that they were contemptuous.

20. That it is particularly noteworthy that at the very time that the contemner published the first of the three articles on 11.11.11, the contemner was before the Hon’ble Tribunal No. 1 in relation to previous contempt proceedings, but despite that that no prosecutor or any other person raised any concerns about the possible contemptuous nature of the subject matter of the article. Moreover, at these hearings that took place between 3 October 2011 and February 2012 at Tribunal-1, which was also the tribunal dealing with the case of Delwar Hossain Sayedee, the Prosecutor Mr. Zead Al Malum, who would have been informed about the article, was himself present at the Hon’ble Tribunal during these proceedings representing the prosecution but raised no concern about the article.

21. That in this regard, it is the contention of the applicant that the articles are “still live posts” and that the alleged contempt was therefore “in continuity”. In this respect, there is no precedent in Bangladeshi case law to suggest that the date of publication on an article on the internet is any different from the date of publication of something published in printed form; both may be continuously available, and for both the date of publication is the date at which they were originally published. Moreover, there is Indian case law where, in the context of defamation, it has been held that publications on the internet should be treated in the same way as any other printed material – that is to say that a cause of action arises only on the day on which the an article on the internet was first published, and does not arise every time someone subsequently accesses or reads the article.

22. That in the context of Bangladesh, it is respectfully submitted that a similar approach is warranted in the public interest, inasmuch that otherwise, persons, including newspapers, publishers, journalists and bloggers, will be exposed to the peril of a prosecution long after some material has been published in a newspaper website or blog or indeed social media platform by those seeking to harass that person or have some hostility against him or her.

23. That it is the contemner’s submission that the two previous arguments – lack of maintainability due to third party application and abuse of process due to delay - need to be considered both as separate issues in their own right, but also in combination with each other. If these proceedings are not considered as lacking maintainability due to third party intervention or being an abuse of process on account of the delay in bringing the action, hundreds of articles, which were published a long time ago and which have so far not been proceeded against, could be the subject of private third party applications.

24. That in this context of the contemner’s arguments about abuse of process, it is further submitted that the overwhelming weight of available legal authority suggests that the power of contempt ought to be used ‘sparingly’, used ‘with serious circumspection’, used ‘with utmost restraint’, and used ‘with great care and caution’, and only used in cases of ‘extreme necessity’, in cases that are ‘very grave and serious’, or ‘in an extraordinary situation’, all of which suggest that an application for contempt which has been brought long after an article has been published, should not be favorably entertained by the Hon’ble Tribunal. In light of the length of time that has passed after publication and before proceedings were initiated, which has no Bangladeshi or international precedent, and in light of the fact that no Prosecutor or Investigator despite being informed at the time of publication of these articles took it upon himself or herself to take any action, it is clear that no prosecutor regarded the materials to be contemptuous, and there is simply not a ‘very grave and serious’ nor ‘an extraordinary situation’ that would justify a contempt procedure

25. That it is the contemner’s submission that a reading of Section 11(4) along with Sections 24 and 21 of the International Crimes (Tribunal) Act 1973 makes it clear that the contemner has no right to appeal any matter of the proceedings before this Hon’ble Tribunal including conviction. In no other jurisdiction, and in no other court in Bangladesh is there the absence of a right to appeal in relation to the offence of contempt – and so continuing with these proceedings is in itself an abuse of process, particularly in light of the matters already raised above about third party application and length of time.

26. That on the basis that the tribunal remains of the view that the proceedings are maintainable are not an abuse of process, are ‘of extreme necessity’, and it is irrelevant that there is no right to appeal, the contemner submits that the criticism contained in the above articles, properly construed and placed in context, fall well within the limits of fair criticism as permitted by the law.

27. That it is submitted that case law shows that the courts have consistently held that criticism, when found to be “fair” does not tend to bring the authority of a court or the administration of the law into disrespect or disregard, does not lower the Hon’ble Tribunal’s repute and does not have the effect of undermining public confidence in the administration of justice, that is to say, it does not amount to contempt.

28. That it is submitted that case law further shows that in assessing whether criticism is fair, the courts take into account the following factors:

(i) Whether the criticism imputes an improper motive, or bias, or partiality, or corruption of a judge?
(ii) Whether the criticism is a genuine exercise of criticism?
(iii) Whether the criticism is malicious or involves a malicious attack?
(iv) Whether the criticism is reasonable?
(v) Whether the criticism is rational and sober?
(vi) Whether the criticism is coloured by any partisan spirit or tactics?
(vii) Whether the criticism involves an obvious distortion or gross misstatement?
(viii) Whether the criticism is based on falsehood (though errors of fact do not necessarily mean an article is contempt)?
(ix) Whether the criticism involves hostile criticism of a judge?
(x) Whether the criticism caricatures a judge?
(xi) Whether the person responsible for the criticism has knowledge in the field regarding which comments are made (the less the knowledge, the more the likelihood of contempt)?
(xii) Whether the criticism defames, ridicules of abuses a judge in his public capacity?
(xiii) Whether the criticism is written in good faith and is bona fide?
(xiv) Whether the criticism uses offensive and intemperate language or aims to ridicule?
(xv) Whether the criticism was reckless?
(xvi) Whether the surrounding circumstances show ‘good faith and the public interest.’

29. That the case law in effect can be summarised in this way: If criticism is reasonable, written carefully, in good faith, in moderate language, within limits of reasonable courtesy, is strictly rational and sober, factually accurate, logically sound, properly analyses the material, and written from the highest of motives, then it should be considered to be permissible and not contemptuous, even though the court may disagree with it. If however the criticism is based on obvious distortion or gross misstatement, is malicious, scurrilous, hostile, offensive or ill-intentioned, is coloured by partisan spirits or tactics, intimidatory, and ridicules or caricatures a judge, or imputes partiality, corruption, bias, improper motives to a judge or makes a personal attack on a judge, and if the person making it is totally foreign on the subject, it can be deemed to be outside the limits of fair criticism.

30. That case law shows that errors of fact, even when they are serious, will not in themselves make criticism contemptuous.

31. That the case law shows that no person has been held in contempt of court without the court finding that the criticism was based on a serious error of fact or where the language used against the court was seriously vituperative.

32. That furthermore, it is submitted that in considering whether criticism is fair or not, case law has consistently held that “fair and reasonable criticism is helpful to judges” and should be encouraged.

33. That it is also submitted that in relation to whether there has been contempt in relation to ‘ongoing proceedings’, case law states that a publication or comment during pending proceedings shall not amount to contempt unless it ‘substantially’ interferes with justice or was calculated to ‘substantially’ create prejudice in the public mind.

34. That it is submitted the weight of authority also makes it clear that contempt proceedings are quasi criminal in nature and that hence the case must be proved beyond reasonable doubt, which is to say that it is not enough for a court or tribunal to think that the accused is “probably guilty” or ‘likely to be guilty” but rather the court or tribunal must be sure of his guilt, and that in case of ‘fair criticism’ there must be no reasonable doubt that the criticism did not fall within the parameters of fair criticism It is also submitted that the Hon’ble Tribunal must be particularly stringent in its assessment of the standard of proof in light of the fact the contemner has no right for appeal.

35. That before considering the three articles, and in view of case law suggesting that the good faith and public interest of any criticism needs to be judged by the ’surrounding circumstances’ the contemner would make the following points:
(a) The contemner is a lawyer by education. He holds an LL. B (Honors) degree from the University of Birmingham and an LL.M from the London School of Economics and Political Science, University of London where he took a course on International Human Rights Law and another course in Law in South Asia. He is therefore qualified to write on legal issues 
(b) As a professional journalist, he has researched and written extensively on a variety of legal issues including on the international crimes in Bangladesh during 1971 and brining the alleged perpetrators of such crimes to justice 
(c) He was responsible for investigation and research in the making of the “War Crimes File”, a documentary telecast in the UK in 1995, concerning the genocide that took place in 1971 and the alleged involvement of three erstwhile members of the Jamaat E Islami/its student wing, who were then living in the UK. The documentary drew international attention to the impunity being enjoyed by alleged war criminals and was used in Bangladesh as part of a concerted campaign for bringing those alleged to be responsible for genocide in 1971 to justice. For his role, the contemner was honored with a citation by the Ekkatorer Ghatuk Dalal Nirmul Committee for having “told the world about those killings as a journalist whose heart has gone out for the Bengalees and possibly established one of the first visual documented evidence of some of collaborators of the Pakistani occupation army in 1971” for which the Nirmul Committee was “eternally grateful” and presented the citation “as a mark of its respect and in recognition of his contribution to the cause led by Jahanara Imam in bringing the killers and collaborators to justice.” 
(d) Since then, the contemner has always supported the necessity for holding trials of those alleged to have committed crimes against humanity and other international crimes during the independence war of Bangladesh, and has written widely making the case for the establishment of trials. 
(e) Nothing he has written has ever questioned the need for those who are alleged to have committed crimes to be held to account through criminal courts, and punished appropriately. 
(f) Although he has at times written critically about the process and procedure of the trials, he has always made it clear that he supports the need for trials, and a determination of thee guilt or innocence of those accused of heinous crimes during the 1971 war of independence.
36. That in relation to the Bangladesh War Crimes Blog, in which the articles were published, it is stated that the blog was started in August 2010. Its introductory article stated:
“This blog will principally be about International Crimes Tribunal set up by the Bangladesh government to prosecute those alleged to have committed war crimes, crimes against humanity and other international crimes during the independence were of Bangladesh in 1971… 
“I am writing the blog to make it easier for people inside and outside of Bangladesh to keep track of developments in the Tribunal-and also to provide some independent analysis of the issues involved. ... 
“The Jamaat-e-Islami is an Islamic political party which in 1971 sided with the Pakistan military. There have been extensive allegations that some members of the party, including those who were members of its student wing at the time (known then as the Islami Chhatra Shongho) committed serious crimes in 1971. … 
“I hope you will find this blog useful, and please do leave comments, queries, or information”. 
37. That it is submitted that this article accurately summarises the purpose of the blog, and accurately reflects the contemner’s neutrality in his approach to writing about the tribunal. Prior to the article published on 11.11.2011, the contemner had published about 70 articles relating to the proceedings of the Hon’ble Tribunal, which at the time he was attending himself. Subsequent to the article, and with the trials commencing, the contemner employed two researchers for each tribunal to make detailed notes of the proceedings, including the applications filed by the parties and the orders passed, which were fully and accurately published in the blog. Till date, about 800 articles have been published on the website – most of which are detailed notes of proceedings during the trial, containing far more detail than that published in newspapers. In the absence of any other similar website or blog, the contemner respectfully submits that the blog constitutes a unique resource for anyone, whether at the present or in any time in the future, who seeks to obtain detailed and accurate information for an understanding of the proceedings, and is hence of tremendous historical significance.

38. That it is stated the contemner does not earn, and has never earned, any income from the blog. He has not been given any money or benefit of any kind by any person or organization to work on the blog. He paid for the researchers who took notes at the tribunal out of his own income, all of which has been disclosed to the tax authorities in the UK and Bangladesh. His work on the blog has been voluntary and is independently undertaken. The only income he has ever received in relation to any writing on the international crimes tribunals has been as a staff member of the newspaper The Daily Star, of and of The New Age, and also from free lance contributions from international media when working as a professional journalist

39. That it should be noted by the Hon’ble Tribunal that amongst the nearly 900 articles published on the blog, the applicant claims that only 3 are contemptuous, and make no comment on the hundreds written before these three particular articles, or the over 200 written articles since the publication of the last of these three articles on 28.1.2011 article.

40. That since the Tribunal did not set out either in its first order of 20.2.2014 or in its subsequent show cause order of 17.04.2014, the specific passages or comments in the three articles which are alleged to be contemptuous, the contemner must assume that the show cause refers only to those passages or references set out in the application.

41. That in relation to the first article published on 11.2011, in the context of the charge framing order passed in the Delwar Hossain Sayedee Case, the applicant referred to this passage: “The Tribunal in its order does not provide or refer to any evidence or material on record to support the figure of 3 million, treating it as a historical fact… Although this number is treated as an official government figure there is as far as I can see little evidence, if any, to support it.” As explained at length in the explanation filed earlier by the opposition party, the article proceeds to discuss a range of available material and information on this issue, which provide wide ranging views on the number of persons killed in 1971.

42. That it is respectfully submitted that such criticism falls within the parameters of fair criticism as has been held permissible by the Hon’ble Supreme Court of Bangladesh inasmuch that it does not impute any improper motive, bias or partiality on the part of the Judges of the Hon’ble Tribunal and no Judge of the Hon’ble Tribunal has been caricatured, ridiculed or abused. There is no use of intemperate or abusive language. There is nothing in the language which can be termed hostile, malicious or reckless, and in fact it is expressed in rational and sober language. There is no obvious distortion of facts or gross misstatement, and indeed the applicant does not specifically allege any such inaccuracy in the article.

43. That the contemner at no point denies or questions in this particular article (or indeed elsewhere in any of his writings) the widespread atrocities took place in the 1971 war killing thousands of civilians, nor does he deny the alleged involvement of the Jamaat-e-Islami and other fundamentalist Islamic parties in collaborating with the Pakistan army.

44. That the contemner appreciates the understandable sensitivity of the matter about the numbers who were killed in the 1971 war (a point that he himself made in the respective article) and certainly he had no intention of hurting sentiments within Bangladesh, but that if he inadvertently did so, he submits that this in no way amounts to contempt of court.

45. That it is further submitted that while the article was published when the Delwar Hossain Sayedee Case was still pending trial, it cannot be regarded as contumacious inasmuch that it addressed a fact, i.e. the number of those killed in 1971, which was not in any way an issue in the said case, and cannot, therefore, be regarded as having substantially (or in any way) interfered or attempted to influence the decision of the Hon’ble Tribunal in the matter which was pending before it. It is also to be noted that the trial was completed over a year ago.

46. That on the day after publishing this article the contemner also published another article, titled ‘Sayedee Indictment – Tribunal History’ which sets out the reasons why it had not been possible to hold trials until now which is highly supportive of the current process, which should be considered by the Hon’ble Tribunal when it considers the surrounding circumstances, and neutrality and objectivity in which the contemner writes about the 1971 war.

47. That the second and third article involved certain criticisms of the trial and judgment of Abul Kalam Azad but it should be mentioned that on 24.01.2013, two days before the first of these two articles was published, the contemner published detailed notes of the evidence in chief and cross examination of the witnesses along with the full judgment of the Hon’ble Tribunal. And that on the same date as the second article, the opposition party also published the full speech of the then Foreign Minister, Dipu Moni, which she gave to foreign diplomat concerning the trial of Abul Kalam Azad, perhaps the only website which provided a copy of the whole speech. The posting of these other articles on the blog, on or around the days of the articles subject to this application, are significant in considering the overall context and the bona fides of the contemner. Readers of the blog were able to read, along with these two articles dealt with in the application, not only the full judgment itself, but also details of the evidence in chief and the cross examination of the witnesses as well as summaries of the closing arguments, and also read the full statement of the foreign minister extolling the trial and judgment.

48. That in relation to the second article published on 26.01.2013 (but noted as having been published on 28.01.2013) concerning the judgment in the Abul Kalam Azad case, the applicant first referred to criticism concerning the observation of the Hon’ble Tribunal that the in absentia trial reflected international standards upon a reference to the case law of the European Court of Human Rights and the statute setting up the Special Tribunal for Lebanon. It is submitted, that his criticism, which has already been explained in the explanatory statement, is based on facts which have been accurately referred, has been expressed in sober, restrained and rational language. It does not impute improper motive, bias or partiality on the part of the Judge’s of the Hon’ble Tribunal, but critically analyses only one aspect of their reasoning.

49. That it may be noted (as set out in the explanation submitted earlier to the court) the word “misleading”, was used in the ordinary sense of the word (when used as an adjective) as found in the Oxford Dictionary of English (Indian Edition) (2nd Edition), which is as “giving the wrong idea or impression”. That the use of ‘misleading’ in this sense means no more than inaccurate, and is not a word that is hostile, malicious, imputes motive or bias. Nonetheless after receiving the order on 20.02.2014 directing him to explain his criticism, but before he was asked to show cause in the instant Miscellaneous Case by order dated 17.04.2014, the contemner had, of his own accord and due to the respect he holds the Hon’ble Tribunal, edited his article to omit the word “misleading” and replace it with the word “inaccurate” after it was explained to him that in Bangladeshi legal parlance, the word “misleading” may connote intentionality.

50. That the second criticism in this article as referenced by the applicant, is with respect to (in the words of the application) whether ‘the defence lawyer [had] adequate time to prepare’ in the Abul Kalam Azad case. It is respectfully submitted that the criticism here was directed at (a) the provisions of the 1973 Act itself, which allows a trial to take place after three weeks of the defence receiving a copy of the prosecution papers; (b) the failure of the defence counsel to seek more time and (c) the failure of the defence counsel to disclose his partisan political antecedents, and that such practice may not hold up favorably to international standards, but even that such criticism was tempered upon a reference to the common practice for criminal defence lawyers in preparing for their case and how they do not undertake defence investigations in Bangladesh. No direct criticism in this regard was made of the Hon’ble Tribunal itself or its judges.

51. That to the extent there is any criticism of the Hon’ble Tribunal on this matter, it is that ‘The lawyer and the tribunal should both themselves have recognized’ that ‘by any kind of international standards, the lack of preparation by the lawyer and the nature of the representation would be considered highly inadequate.’ It is submitted that these criticisms are reasonable in the context of the Hon’ble Tribunal stating at the beginning of the judgment it’s in absentia proceedings reflected international standards.

52. That it is respectfully submitted that such criticism falls within the parameters of fair criticism as has been held by permissible by the Hon’ble Supreme Court of Bangladesh inasmuch that apart from being written in sober language, it is not hostile, malicious etc towards the judges, it does not impute any improper motive, bias or partiality on the part of the Judges of the Hon’ble Tribunal and does not contain any factual mistakes.

53. That in the third article published on 28.01.2012, which also concerns the Abul Kalam Azad Case, the applicant first refers to the contemner’s comments regarding a few findings at the beginning of the judgment, and questions the appropriateness of coming to such findings when no evidence relating to such matters were heard at the trial. It was acknowledged in the article that the Hon’ble Tribunal is fully entitled to take judicial notice of certain facts and circumstances if they were undisputed, although the Hon’ble Tribunal does not do so expressly in relation to these particular matters. The article mentions that prior to taking judicial notice of such findings, the defence is usually allowed an opportunity to controvert or dispute such facts and circumstances in issue before judicial notice is taken of them, which was not the case here.

54. The contemner submits that it will be clear from the submission below that the article was fact based and reasonable.
(a) The article refers to particular sentences/phrases within three paragraphs and states that the tribunal ‘heard no evidence on these matters and in fact these are matters subject to adjudication‘. This is factually correct as no oral evidence was heard on these matters (with the evidence of the witnesses specifically focused on the conduct of Abul Kalam Azad and there being no expert witness providing evidence on the wider aspects of the war) and in addition the judgment does not refer to any documentary or other evidence to support these statements. It is also a matter of record that the role of Al Badr and other organizations were a matter of adjudication in other cases. 
(b) The article then goes onto say that “there may or may not be sufficient evidence to substantiate these conclusions … but that a trial judgment cannot just simply [say] these things without having heard evidence from both sides and stating the basis of the conclusion.” In effect this sentence is implying that judicial notice cannot be taken of matters such as these which need to be proved like any other fact. This was a reasonable comment to make since Blacks law dictionary (which is itself referred to in the article) defines facts of common knowledge as facts that are ‘indisputable’, and this is supported in case law from international tribunals dealing with these kinds of offences which has held that facts of common knowledge are ‘facts which are not subject to reasonable dispute’. ‘so notorious, or clearly established or susceptible to determination by reference to readily obtainable and authoritative source that evidence of their existence is unnecessary’, ‘commonly accepted or universally known facts, such as general facts of history or geography, or the laws of nature’, and that this cannot be said of the particular matters highlighted in the article 
(c) It was reasonable for the contemner to assume that, in determining whether judicial notice of particular matters should be taken, the tribunal would consider the Intentional case law since para 15 and 24 of the Hon’ble Tribunal’s judgment itself refers to the Tribunal’s compliance with international standards, and in addition there is no other applicable law since the Evidence Act 1872 is specifically not applicable to the proceedings of the Hon’ble Tribunal 
(d) The article then goes onto say that the judgment ‘does not state that it is’ taking judicial notice of the particular highlighted facts mentioned in the article. On this issue, the contemner contends that he is factually correct in that since the judgment does subsequently state that the Hon’ble Tribunal is taking judicial notice on certain matters, it was reasonable to assume that it would only take judicial notice of a fact when it specifically stated that it was doing so. That whilst in paras 35, 41, 78, 108, 154, 185, and 316 of the judgement the Hon’ble Tribunal do state that certain matters relating to the Pakistan military and the collaborating organisations are facts of common knowledge, a close reading of these paragraphs shows that the judgment does not specifically state that the particular facts, highlighted by the contemner in his articles, were facts of common knowledge. 
55. That it should be noted that the sentences referred to in the article are not relevant in any way to the guilt or innocence of Abul Kalam Azad and are therefore basically academic in nature. 
56. That the applicant refers to another criticism made in the article about the placing of a particular paragraph near the beginning of the judgment which stated unambiguously and without any caveats that the accused ‘substantially assisted’ the Pakistani military in ‘committing atrocities’ against the civilians. Since this paragraph was placed before discussing evidence any against the accused, the contemner suggested, that it gave the appearance that the Hon’ble Tribunal may have pre-judged the issue. This criticism merely relates to the placement of the Hon’ble Tribunal’s discussion of the accused’s guilt in the judgment, which may give the impression that guilt had been prejudged before consideration of evidence. However, the criticism does not in any way impute or even suggest that the Hon’ble Tribunal had in fact prejudged the accused by failing to consider the evidence against the accused. The criticism in the article is directed only at the placement of discussion of guilt in the judgment, and not towards the Hon’ble Tribunal’s intent or reasoning for such placement.

57. That it should be noted that none of the subsequent judgments of this Hon’ble Tribunal, each of which also contain an introductory section titled ‘Brief Account of the Accused’, includes an unconditional statement establishing accused’s involvement in international crimes, and instead makes it clear that these are matters that are only alleged by the prosecution. (See Molla judgment, para 17 ‘According to the prosecution’; Kamaruzzaman judgment, para 17 ‘it is alleged …’; AAM Mujahid judgment, para 16, ‘ .. as alleged’; Alim, para 16, ‘… as alleged’.) It therefore appears that the Hon’ble Tribunal on its own account also took the view that there was a problem in the wording of this paragraph.

58. That in this context, the contemner would draw the particular attention of the Hon’ble Tribunal to the approach taken by the Hon’ble High Court Division in the case of Mainul Hosein v Sheikh Hasina Wazed 53 DLR 139 where the Hon’ble Prime Minister stated that the Hon’ble Bangladesh courts was “as if a safe shelter for the corrupt or accused persons.” In finding that contempt was not committed, the Hon’ble Court held that “the words ‘as if’ in the sentence have ultimately taken away the sail of the supposed purport of the sentence, the court have become a safe shelter for the criminals”. The contemner submits that the words “gives the appearance” in his article may be treated in exactly the same way in which the words “as if” have been treated in case of the Hon’ble Prime Minister.

59. That the final reference in the application relating to the third article concerns the issue of ‘numbers of dead’ in the 1971 liberation war. The contemner provides a link in the article to his first article published on 11.11.2011, where he referred to various sources that provide conflicting estimates of the number of actual civilian deaths during the liberation war. He then goes on to suggest that, given the various conflicting accounts of actual deaths, the Hon’ble Tribunal could have dealt with the issue of the ‘number of deaths’ in a more judicial manner rather than referring to it like repeating a ‘mantra that has little or no factual basis’. The use of word ‘mantra’, was only meant to highlight the fact that the number of deaths is often quoted as fact although there is little evidence to support it. The contemner submits that his criticism was directed at absence of any discussion of evidence in the judgment for coming to a finding on the number of deaths and treating it like a matter of common knowledge. The criticism was not directed at the judges of the Hon’ble Tribunal personally nor does it impute any allegation of improper motive, bias or partiality on them or purports to bring them into hatred or disrespect. This criticism was directed purely at the fact that the Hon’ble Tribunal came to a finding on the number of deaths and repeated the said finding without quoting any empirical basis or reasoning for treating such finding as a matter of common knowledge. However, out of respect for the Hon’ble Tribunal, and prior to it passing the show cause order, the contemner regretted the use of the word, and removed it from the article.

60. That in the third article it was inaccurately stated initially that the Hon’ble Tribunal had not alleged that Azad was a member of the Al-Badr. However, the Hon’ble Tribunal had in fact alleged such and as soon as the contemner realized his mistake, he removed the said inaccurate statement from the article. This has been mentioned in the contemner’s explanation filed earlier wherein he expressed his deepest regret for this mistake.

61. It should be noted that, in his application to the Hon’ble Tribunal, the applicant did not refer to this sentence as a factual error, suggesting that he was not aware of it himself, but that nonetheless the contemner made the correction as soon as he realized it was an error. It is also submitted by the contemner in this context that mere error of fact does not amount to contempt of court as has been held by the Hon’ble High Court Division in the contempt case against the Hon’ble Prime Minister, Sheikh Hasina, where she had misquoted the number of bails given by the Hon’ble High Court Division by twice the actual figure but yet this was not held to be contemptuous, as well as by other cases. It is also submitted that the criticism in the article is not ‘based’ on this error of fact unlike for example the criticism made by the Hon’ble prime minister which was the basis of the criticism.

62. That in the light of the arguments relating to lack of maintainability of the application, and the inordinate delay, after the date of the publication of the articles in taking any action even though the prosecutor and the investigator’s office had been fully aware of the articles in the intervening time period, the application should be dismissed.

63. That in light of the principles discussed and laid down in leading cases, the overwhelming weight of authority supports the submission of the contemner that the comments contained in his three articles fall within the parameters of the defence of fair criticism, which has been recognised and permitted by the Hon’ble Appellate Division of the Supreme Court of Bangladesh. The contemner reiterates that the articles contain a genuine and bona fide exercise of criticism based on facts and upon reference to credible sources, using reasonable, proper, strictly rational and sober language, even if one might otherwise differ with the criticism expressed and consider some of the language was robust. He has not acted out of partisan spirit or tactics. He has not, even remotely, imputed improper motive, bias, partiality or corruption to the Hon’ble Tribunal or any of its members. He has not distorted any facts nor has he made any gross misstatement. He has not made criticism which can be termed hostile. He has not caricatured, defamed, ridiculed or abused the Hon’ble Tribunal or any of its members. His educational background is in the law, his journalistic career spanning over 20 years focusing on war crimes issues and his work on the issue in 1990s that drew fresh attention to the genocide that was committed in Bangladesh in 1971 and gave impetus to bringing about the trial of those who perpetrated it, certainly shows that he has knowledge in the field and is a person who is competent to comment on the proceedings before the Hon’ble Tribunal.

64. That upon a consideration of this reply to the show cause notice, and the case law that is being cited in support of this reply, the contemner respectively submits and prays that the charge of contempt against him may be dismissed.

65. That the statements of fact made hereinabove are true and correct and the rest are submissions before this Hon’ble Tribunal.

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