Thursday, December 11, 2014

Analysis of the contempt judgement 1: Right to initiate proceedings

This is first in a series of articles analyzing the judgement involving three articles in this blog. The full judgement can be accessed here

To see the index to the series of articles analysing the contempt judgement go here

It should be noted, at para 44 of this judgement, the Tribunal explicitly states that 'We always welcome post-verdict criticism',  and and at para 73, 'We of course do not disagree that even post judgment criticisms is permissible.' So I make these comments in that context.

This particular post considers arguments relating to locus standi - which means the right of the applicant to bring the action.

We argued in the Tribunal that the applicant did not have locus stand to initiate the legal action, and that to continue with the proceedings was also an abuse of process. We made the following arguments in court which are summarized below.
First, the argument focused on the applicant being someone who had no involvement in the Tribunal, a third party. We argued that there was no precedent at either of the two Bangladesh International Crimes Tribunals for a third party, who was neither a defense lawyer, nor a prosecutor, nor an investigator nor a judge, to bring (a) any application before the tribunal, yet alone (b) to initiate a prosecution under the Act (as done in this case), and that moreover the International Crimes (Tribunal) Act 1973 does not permit this.
It was also argued that whilst the Tribunal could suo moto (on its own accord) initiate contempt action, this has not been undertaken in this case. A third party had initiated the action, and the court's two previous orders in this matter can only be understood in the context of the third party application and the third party was in addition given responsible for the prosecution of the case. It was argued that if the Tribunal wanted to take suo moto action it would have to start the process anew, which it has not done so.
It was also pointed out to the court that the respective three articles, in the immediate days after their publication, were circulated through e-mail to amongst others, to a senior Tribunal prosecutor (Zeal-al-Malum), a tribunal prosecutor to be (Tureen Afroze), the head of the investigation agency (Mr Hannan) and the head of the National Human Rights Commission (Dr Mizanur Rahman). However none of these people initiated action in the subsequent months/years.  
Secondly, it was argued that prior to the initiation of legal action by the third party, over two years had passed since the publication of one of the articles and over one year in relation to two of the articles, and that it was unprecedented either in Bangladesh or in any common law jurisdiction, for contempt proceedings (involving alleged 'scandalization of the court') to be issued after such a long period after publication of the relevant article. It was pointed out that the ordinary practice is for proceedings to be initiated within days or weeks of an article's publication.
On this point, we pointed to Indian High court case of Khawar Butt vs Asif Nazir Mir Ors (2013), para 38 which held, in relation to the internet, that the date of publication of an article was the date when it was first published on the internet and not the date at which it was accessed by a person. No other case law exists in the Indian sub continent on this matter. 
In its judgement, the court responded to our arguments in the following way
27. First, act or conduct of an individual if constitutes despicable and derogatory to the authority and dignity of court of law can be brought to notice of it. The Act of 1973 does not provide time frame as to bringing any such act or conduct to notice of the Tribunal. One’s personal blog is not accessible to all. The people and regular readers are familiar with the daily news papers. They are not supposed to be acquainted with the blog of the contemnor. Only the people adapted with internet use and familiarized with contemnor’s personal blog may have access to the articles posted in that blog. 
28. Second, the applicant became aware of the articles by browsing contemnor’s blog. It is not correct to say that on the very date the articles were posted in the blog the applicant should have gone through these, by browsing the blog. The applicant moved before this Tribunal when he discovered the articles in the personal blog of the contemn or. This reason justifies the ‘time gap’ in between posting of alleged articles in the blog and initiating the application before this Tribunal. It however in no way creates any clog in entertaining the application. 
29. Third, this Tribunal taking cognizance of the application directed the opposite party [contemnor] to explain his conduct. On being noticed the opposite party [contemnor] submitted written explanation justifying his act and conduct that has been replicated in his articles. Considering the explanation unsatisfactory this Tribunal eventually ordered drawing contempt proceeding. Now, it is irrelevant to say that the application has been brought by a third party, neither the prosecution nor the defense of either case. 
30. It is to be noted that ‘coming notice of the Tribunal’ about any contemptible act or conduct of an individual may happen in various modes. Even the Tribunal is empowered to take any such act or conduct into its notice suo moto. Not necessarily only the prosecution or defense or investigation agency does have right to bring it to notice of the Tribunal. Besides, there has been no explicit clog, either the Act of 1973 or the ROP, in bringing any such contemptible act or conduct by any individual, to the notice of the Tribunal. 
31. Fourth, the applicant, as we perceive, has come forward with the application, as a conscious citizen, being felt wounded by the comments made in the alleged articles which he considers gravely deprecating for the judiciary and administration of justice. Since an individual does have right to freedom of expression and speech including the right to post judgment criticism, another individual also does have right to come forward with his protest against any ‘expression’ of the former to get it remedied, to resist imputation of any kind directing the administration of justice.
32. At para 16 of the decision in the case of S. Mulgaokar vs. Unknown, 1978 AIR 727 it has been observed too that- “But, when there appears some scheme and a design to bring about results which must damage confidence in our judicial system and demoralize Judges of the highest court by making malicious attacks, anyone interested in maintaining high standards of fearless, impartial, and unbending justice will feel perturbed”  
33. The applicant thus does have locus standi in bringing the instant application as he seems to have felt ‘perturbed’ with the malicious attacks that he considered disparaging in the mind of the public in respect of confidence upon the judicial system of the Tribunal. Therefore, merely treating the applicant a third party the application intending to bring notice of the Tribunal about the alleged articles containing criticism on subjudice matter and post judgment criticism cannot be thrown on air, accepting argument agitated by the learned defence counsel.  
34. The alleged ‘articles’ circulated in personal blog have been brought to notice of the Tribunal by the applicant. The application has thus acted as the source of ‘coming into Tribunal’s notice’ about the impugned articles. And on having notice of the same, the Tribunal proceeded examining the contents of the articles pursuant to which the contempt proceeding has been started eventually. The application is therefore quite maintainable.
I would make the following points about the judgement on this issue
1. The judgment did not mention or refer to our argument that direct parties of the tribunal, including the head of the investigation agency and senior prosecutors, had been made aware of the articles immediately following publication, but did not take any action, and that it was therefore inappropriate for a third party, years later to initiate action against the articles.
2. The judgement does not mention or refer to the Indian High court case law which states that the date of publication is the date of publication of the article, and not when a person accesses the article on the internet.  
3. The judgement does not mention or refer to our argument that there was simply no legal precedent in Bangladesh or in any other common law jurisdiction for such proceedings involving alleged 'scandalization of a court 's take place a year/two years after publication of an article.  
4. The judgement does not mention our argument that the International Crimes (Tribunal) Act does not permit third parties to make an application or initiate prosecutions, and in fact only permits the investigation agency/prosecutors to do so. The judgement does conclude though that there is 'no clog in entertaining the application.' 
5. Although the judgement states that 'this Tribunal eventually ordered drawing contempt proceedings' and that it was now 'irrelevant to say that the application has been brought by a third party,' the Judgement does not mention or respond to our point that this application was not a suo moto action.

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