Saturday, October 11, 2014

Summary of legal argument on blog contempt charges

In February this year, a lawyer, who previously had no involvement with the International Crimes Tribunal filed an application with the court claiming that three articles in this blog - one written over two years earlier, on the number of deaths in the 1971 war and two others (here and here) written over a year earlier commenting on the judgment of the trial of Abul Kalam Azad - were in contempt of the International Crimes Tribunal.

An order was passed by the Tribunal seeking 'an explanation' about the criticism. In response, a written explanation was filed with the court, and on 31 March, an oral hearing took place. Following this hearing, on 17 April, the court passed an order which issuing contempt proceedings. In response to this, an 'affidavit in opposition' was filed setting out why these proceedings should not go any further, and no contempt had taken place. 

The judgement is now due on 1 December 2014 (having been adjourned from Monday, 13 October, 2014 as judges said that they had not completed writing their judgement)

Below is the skeleton argument that was filed in court, and formed the basis of arguments made on the last date of hearing as to why the articles in the blog were not in contempt of court.

The arguments can be divided into two parts. Those which argue that the proceedings themselves are unlawful (due to the delay in initiating proceedings, because they were initiated by a third party, lack of a right of appeal) and those which argue that, in any case, the articles fall well within the permissible limits of fair criticism.

To read more detail, you can see the full written affidavit, and you can also see the case law which was cited in court in support of the arguments.

Skeleton Argument
1. Lack of Maintainability 
• 1973 Act/rules not permit third party applications (i.e from a person who is not a prosecutor, investigator or accused) on any Tribunal matter, in particular not permit proceeding with private prosecution, and there is no history of either tribunal allowing third party to file, maintain, argue any application before it. Current application unprecedented.

• Applicant’s sole claim to locus is that his ‘heart and soul’ desires 1971 accountability, but this does not trump the fact that he has no legal right to make an application.

• Allowing application in this case would open floodgates of applications from third parties

• Tribunal has ‘inherent powers’ to bring suo moto contempt applications (i.e on its own accord), but current process is not suo moto action as Tribunal orders and process wholly dependent on the third party application. Any suo moto action by Tribunal would have to start from the beginning. 
• Any third party seeking to initiate contempt prosecution must bring to prosecutors/defence attention, for them to decide to take action.
2. Abuse of process

• inordinate amount of time passed between date the article published and initiation of contempt proceedings. In relation to alleged ‘scandalisation of the court’ (a particular category of contempt), practice in Bangladesh/all common law jurisdictions is for contempt proceedings to take place within fews days/weeks of article publication. No precedent in any of these jurisdictions for contempt actions to take place after such long periods of time following article publication. (in this case as long as over two years)

• The reason why there is this practice of initiating action quickly after article is published is a reflection of the law of contempt which requires presence of immediate threat posed by the article.

• That two prosecutors and head of investigation agency were amongst those who were sent e-mail with link to all three articles, immediately after their publication, but took no action.

• Articles relate to trials which are long finished. Only historic interest now.

• Date of publication of articles, whether internet/hard copy, is the date originally published. Supported by Delhi High Court case of Khawar Butt (p.352 of index, para 38). If not, newspapers/bloggers etc would face the peril of legal action long after the publication of an article from hostile or malicious quarters, which is what we would argue is exactly happening in this case.

• There is no Extreme Necessity’ to take legal action in this case (para 24 of Affidavit in opposition)

• Case law: courts should engage with contempt only when ‘very grave’ need or ‘extreme necessity’ (see cases at p.1 - 8 of the submission summary). Inordinate delay, lack of action by prosecutors/courts strongly indicate that not grave or extremely necessary.
3. Lack of Right to Appeal 
• In no other international jurisdiction/court in Bangladesh, is right to appeal for contempt conviction absent - as is the case here. So significant is the appeal right for contempt that contempt is only one of 3 matters contained in Article 103(2) of constitution where automatic right of appeal to the appellate division provided.

• lack of right to appeal not prevent Hon’ble Tribunal from proceeding with contempt matters, but should be taken into account in considering arguments relating to maintainability, abuse of process, etc. David Bergman did not have an opportunity to appeal against earlier order, will not be able to appeal against order of this Hon’ble Tribunal.

4. Repeal of contempt law in England 
• Section 33(1) of the Crime and Courts Act 2013 abolished ‘scandalising the judiciary’ as form of contempt in English law.

• Important as Bangladesh courts consistently stated that principles of contempt are based on English law

5. Beyond Reasonable Doubt 
• Case law clear (p.8 to 30 of Submission Summary) that the applicant must prove each element of the offence ‘beyond reasonable doubt’ and Hon’ble Tribunal must be satisfied ‘to the hilt’ that contempt taken place. (Mainul Hosein v Shiekh Hasina, 53 DLR 2001, para 32, 33; see p.37 of submission summary). This is important in the context of construing the meaning and effect of the words tht have been alleged to be contemptuous. It is for the prosecution to prove beyond reasonable doubt that the words had the effect that is being alleged.

6. Law of Fair Criticism 
• Case law on ‘fair criticism’ (p.8 to 30 of Submission Summary) shows even very serious criticism of judicial processes, orders and judgments permitted.

• Paras 65 and 80 of Advocate Riazuddin v Mahmadur Rahman (see p.29 and 30 of submission summary) requires Hon’ble Tribunal to ask following questions of each article: (a) is the article a malicious attack with an ill intention; (b) does the contemner have knowledge in the field regarding the comments that are made, or is he totally foreign on the subject? (c) Is it fair, factually accurate, and logically sound? (d) Has the article resulted in justice being ‘jeopardized by a gross and/or unfounded attack on the Judges’.

• applicant’s argument is that any criticism of judgment/tribunal is ‘contemptuous’, ‘reckless’, ‘malicious’. Applicant must show why not fair criticism, and prove case beyond reasonable doubt

7. First article 
• The applicant not point out any factual inaccuracy in article

• Criticism is accurate, fair, and logical as it is matter of fact that judgment/tribunal not provide or refer to any evidence on record on the numbers of those who died in the 1971 war, and the article itself sets out a detailed analysis quoting from over ten different sources as why it is reasonable to argue that there is ‘little evidence, if any, to support’ the contention that 3 million people were killed.

• The applicant may consider the 3 million figure to be ‘a classic example of historical fact of common knowledge’, but judgment/tribunal not state that it has taken judicial notice of this matter, and article itself sets out in detail lack of consensus amongst researchers about the numbers of those who were killed in the 1971 Independence war.

• No ‘reckless imputation’ in criticism, as claimed by applicant.

• Number of deaths not relevant to charges before the court.
8. Second Article 
• applicant not point to any factual inaccuracy in article;

• criticism in article about judgments’s interpretation of ECHR/Lebanese tribunal was factually accurate and fair;

• ‘misleading’: word used to mean dictionary definition ‘giving the wrong idea or impression’ (i.e no more than inaccurate). May be other meanings to the word ‘misleading’, but word not used in that manner, and the applicant would need to prove ‘beyond a reasonable doubt’ that the contemner did use the word ‘misleading’ to impute intentionality on the part of the Hon’ble Tribunal.

• removal of word ‘misleading’ from blog done to avoid any doubt about meaning of word. Should not be taken as acceptance that word was contemptuous.

• Criticism not relate to substantive part of the judgment;

• Not say, as applicant states in rejoinder, that judgment given in ‘defective manner’ (see p.10 of Applicant’s rejoinder)

• Criticism concerning the time of preperation for the defence counsel, is also factually based, logical and fair. Application not point to any inaccuracy etc.

9. Third article  
• applicant not claimed any factual inaccuracy in article

• in relation to criticism that ‘the court has heard no evidence’ on particular findings set out in the introductory section of the judgment, this is factually based, fair, and logical. No oral evidence on these matters, and judicial notice not specifically taken on these issues.

• criticism, in any case, dealt with findings that were not relevant to the court’s substantive issue of whether there was sufficient evidence that Abul Kalam Azad was guilty of particular charges against him.

• criticism in article is about the placement of a particular paragraph. This criticism merely relates to the placement of the Hon’ble Tribunal’s discussion of the accused’s guilt in the judgment, which as it was at the beginning of the judgment before discussion of the evidence could give the impression that guilt had been prejudged before consideration of evidence. 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.

• All subsequent judgments of this Hon’ble Tribunal do not include an unconditional statement establishing accused’s involvement in international crimes in the introduction of the judgment, and instead it clear that the guilt of the accused is alleged by the prosecution. Appears court also took the view problem in the wording of this paragraph.

• In case of Mainul Hosein v Sheikh Hasina Wazed 53 DLR 139 the Hon’ble Prime Minister stated that 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.

• Word ‘mantra’ used as an English word defined in the Oxford English Dictionary (Indian edition), (second edition) as ‘a statement or slogan repeated frequently,’ and that the word ‘mantra’ was not used as a Bengali word meaning ‘spell’. Applicant needs to prove beyond reasonable doubt that used as a Bengali, not English word. Word ‘mantra’, used only to highlight the fact that the number of 3 million is often quoted as fact although there is little evidence to support it.

• This particular criticism not directed at the judges of the Hon’ble Tribunal personally nor does it impute any allegation of improper motive, bias or partiality. 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.

• removal of word ‘mantra’ from blog done to avoid any doubt about meaning of word. Should not be taken as acceptance that word was contemptuous

10. General Context – knowledge, no ill motive/malicious 

• Blog contains over 800 detailed articles about the proceedings. Writer clearly had detailed knowledge of relevant Bangladesh law, international standards and proceedings themselves making him fit to write on these matters, and criticize proceedings as appropriate.

• introductory article about the blog is relevant

• Day after publishing the first article on 11.11.2011, the writer also published another article, titled ‘Sayedee Indictment – Tribunal History’ highly supportive of the current process

• Two days before the second article was published, the writer published detailed notes of the evidence in chief, cross examination of the witnesses, closing arguments along with the full judgment of the Hon’ble Tribunal. Readers able to access.

• Same date as the third article (28.01.2013), the writer also published full speech of the then Foreign Minister to foreign diplomats 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 three articles, are significant in considering the overall context and the bona fides of the contemner.

11. More serious criticism, no conviction 

• Much more serious criticism, with vituperative language, resulted in acquittal (see cases on p.32 to 36 of submission summary, in particular Sheikh Hasina case)

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