Thursday, December 11, 2014

Analysis of the contempt judgement 4: The third article - 'mantras' and 'judicial conduct'

This is fourth 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 the comments relating to the third article which the Tribunal considered, entitled Azad Judgement Analysis 2 - Tribunal Assumptions which dealt with the numbers of those who died/killed in the 1971 war of independence.

It should be noted that in its judgement the Tribunal only considered the final of the three sections of this particular article presumably finding that there was no inappropriate criticism in the first two parts of the article, which in fact comprise the main part of the article. Below is the section of the article which the Tribunal comments on:
3. Numbers of dead
This issue is more of an aside .... and not really relevant to the judgement itself

The tribunal asserts that 'Some three million people were killed, nearly quarter million women were raped ... during the nine-month battle and struggle of Bangalee nation.' (para 3)

In doing so, it repeats what was stated in the first indictment passed by Tribunal 1 in relation to the Sayedee case.
There is however no legitimate evidence to support the contention that such a number died or were raped. The only population study that has attempted to assess the numbers of deaths during the 1971 suggest that there were about 500,000 deaths arising from the war, with a large proportion of these resulting from disease. The court did not hear any evidence on the issue of 'numbers'

This issue is discussed at some length here
The point about bringing this matter up is not to undermine the nature of the atrocities committed during the war, or to suggest that the war did not result in a very high level of losses. It is simply to point out that if the tribunal is supposed to be an adjudicator of truth, it would have been appropriate for it to have dealt with the issue of the number of dead in a more judicial manner - rather than referring to it like a mantra that has little or no factual basis.

In our response to the claim that this was in contempt, we stated (at para 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.
It was stated in the part of the judgment which found this section of the article in contempt :
The contemnor thus doubts that the Tribunal is an adjudicator of truth. He also questions the ‘judicial manner’ in which the Tribunal has been performing. It reflects his malignant attitude and mind set. Does a journalist have license in making criticism in such scandalising manner? We fail to deprecate such act of a journalist which does not conform to professional ethics. (para 61)

Combined evaluation of the alleged comment and the admitted act of subsequent deletion of the scurrilous ‘phrase’ [not the total criticism] unambiguously impels the conclusion that contemnor’s intention was ‘malicious’ and he did it consciously to malign and scandalize the Tribunals’ judicial process and authority. In no way, it was ‘fair’ or in ‘good faith’ or in the ‘public interest’. It was rather gravely contemptible. (para 62)

But it is sorry to say that the contemnor continued his criticism intending to disrespect the nation and our glorified war of liberation by raising the issue of 'death figure in 1971'. And in doing so again in another article titled "Azad Judgment Analysis 2: Tribunal Assumption' the contemnor made another malicious attempt to question Tribunal's authority, judicial manner and ability as well as has seriously attacked the nation's emotion by making comment in most unconventional manner using belittling words. It constituted a grave contempt as such disparaging comment was calculated to lower down the majesty and authority of the Tribunal. Contemnor's subsequent conduct of deleting the above demeaning 'phrase' form his blog is by itself suggests it. Obviously the Tribunal, a judicial forum formed of Supreme Court Judges cannot remain mum as a mere spectator. It feels just and expedient to extend its hand for protection not only for the majesty of the Tribunal but the judicial system of our country (para 65)

A journalist or an individual having no legal acumen cannot make such comment by using ‘obnoxious words’, in the name of criticism demeaning the authority, ability and jurisdiction of a court of law.(para 66)

The use of these ‘words’ is a fair indicative of contemnor’s ‘unfair intention’. He was extremely disrespectful in making such comments.
An individual or a journalist cannot have unfettered right to vomit his ill intent, in the name of right to freedom of expression. This right is restricted by civility and norm of justification. But contemnor’s conduct exceeded the limit and norms of civility even. We are not agreed that he made such comment in ‘good faith’ and in the ‘interest of public’.

Contemnor’s intention was to demean the authority and ability of the Tribunal and to generate controversy and confusion on historically settled issue in the mind of public, we conclude. The criticism could not be termed as one made in the ‘interest of public’, in any manner. The Tribunal also notes that the contemnor is not found, in any of his articles, proactive in focusing the incidents of crimes being tried by the Tribunal under the Act of 1973 and the rights of the victims who have been carrying untold trauma since more than last four decades.
[The article] concluded with derogatory comment, suffers from disrespectful way of criticism using extremely scurrilous phrase that imputes the authority and dignity of the Tribunal. (para 84)
This is the comment on this portion of the judgement
1. It is accepted that this criticism might  have been worded differently, so that it was less pointed. But, respectfully, it is difficult to see how the particular wording in the article can be described as 'obnoxious', 'scurrilous', 'extremely impolite', 'derogatory, unfounded' or that it suggests a 'malignant' attitude and mindset, was done 'malicious[ly]'... 'consciously to malign and scandalize' the Tribunals, was 'gravely contemptible', 'extremely disrespectful' and involved my 'ill-intent' being 'vomited'.

2. The Tribunal described me as an 'individual having no legal acumen' when the Tribunal had not found any factual or legal inaccuracies in my analysis of the three articles under consideration by the Tribunal.

4. In relation to arguing that the 3 million was a 'historicially settlled issue', this has been discussed in relation to my first article (see here).

5. The Tribunal also stated that it noted 'that the contemnor is not found, in any of his articles, proactive in focusing the incidents of crimes being tried by the Tribunal under the Act of 1973 and the rights of the victims who have been carrying untold trauma since more than last four decades.'

The blog itself contains a great deal of information on the crimes allegedly committed by all the accused it deals with. It contains the order of indictment and the witness statements and also the judgements of these cases.

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