Thursday, December 4, 2014

Analysis of the contempt judgement 2: First article, 1971 numbers

This is second 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 those comments in that context.

This particular post considers the comments relating to the first article which the Tribunal considered, entitled Sayedee indictment - 1971 deaths, which dealt with the numbers of those who died/killed in the 1971 war of independence. I would encourage people to read or at least scan this article.

The particular part of the article that was considered in the tribunal judgement is this section in the introduction:
The introduction to the 3 October order stated, in its historical introduction that 'As a result' of the actions of the Pakistan military, and the role of the collaborators, '3 million (thirty lacs) people were killed more than 200,000 (two lacs) woman raped, about 10 million (one crore) people deported to India as refugees and million others were internally displaced...'.

This statement by the tribunal provides an opportunity to look at the question of how many people died as a result of the 1971 war - a controversial issue within Bangladesh. In certain nationalistic circles, to raise what I consider to be legitimate questions about the 3 million figure can draw strong emotions. 
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 though it is an official government figure, there is as far as I can see little evidence, if any, to support it.
(The article then goes on to set out details of the origins of the 3 million figure, and the research that has been done in subsequent years about the numbers of those who died/killed in the war.)

And also this section in the conclusion:
As a result, coming back to the tribunal's remark in its 3 October order about the number who died, it may well have been preferable for it not to have mentioned these particular figures. Maybe the prosecution will provide evidence to support this figure in the course of the trial but, as yet, it has not done so.
The Tribunal did not find this article to be in contempt of court. Nonetheless in the course of its examination of the article it made the following comments (see paras 35 to 47)
He, as it appears, attempted to portray various conflicting information, citing sources, in respect of a 'death figure in 1971' that creates a grave confusion on a sub judice issue (para 35).  
Despite all those differing information, it is now settled to the nation that 3 millions of people laid their lives for the cause of our independence. 
[Criticism made on ‘death figure in 1971’] does not seem to have been made as one of ‘public interest’ Rather is has shaken and demeaned the emotion of the nation (para 37) 
The issue of ‘death figure in 1971' involves highest sacrosanct emotion of the nation (para 38) 
The time the contemnor chooses to circulates the criticism on ‘death figure in 1971’ thus fans the flame of grave disgrace in the mind of the nation (para 40) 
The time he chooses to initiate such criticism surely halts the grace and interest of the nation. Such criticisms was not in any way in the ‘interest of public’. His effort was thus divorced from ‘fair intention’. It has obviously caused severe hurt to the emotion of the nation and also belittled the authority of a court of law in making its observation on this issue, reiterating the settled history. (para 40) 
[No remorse] for this criticism touching the emotion of the nation. … We condemn his lewdness (41) 
[W]hy he opted to initiate a debate on a sensitive issue involving nation’s emotion. Of course his intention was not ‘fair’ (para 42) And the criticism so made … disgraces and demeans nation’s wishes and holy emotion. We fail to understand how such criticism attacking the nation’s emotion conforms to ‘public good’. (para 43) But providing debate on this issue by circulating criticism in personal blog rather makes the contemnor gravely disrespectful to the nation. (para 43) 
[With the comment “It may well have been preferable for the Tribunal not to have mentioned these particular figures"] David Bergman in other words questioned the authority and the ability of the Tribunal, and advised [the Tribunal] not to mention the death figure. 
He felt enthused to create confusion in the mind of the public (para 46) 
[In saying that 'it may well have been preferable for it not to have mentioned these particular figures], he has attempted to articulate his audacity (para 47)   
[T]he contemn or is a journalist and providing such 'advice in the name of exercising right to freedom of expression he has crossed the the limit of his professional ethics. He does not have either expertise or license in making such ‘unfair’ and demeaning comment. Intention was malicious.’ (para 47)
Indisputably, this article hurts and effects the emotion of the entire nation' (para 84)
We feel severe ache feel with this arrogant attitude of the contemnor (para 115)
Below is an analysis about the Tribunal's judgement on this particular article

1. The judgment did not find a single inaccurate statement in this blog post. This is significant since the article in question sets out (a) what was the basis to the 3 million figure and (b) details of the research undertaken on how many people died/killed in the war as well as setting other published estimates

2. The judgement states that listing the research and estimates 'creates a grave confusion'. However, perhaps the confusion is simply a reflection of the academic and other research on this subject.

3. The judgement states that it is 'settled to the nation that 3 millions of people' died, but it does not set out any evidential or research support for that conclusion. And since the judgement acknowledges that there is 'differing information' on the subject, it is not clear how it can be a 'settled' historical matter. Moreover, the tribunal was dealing with a criminal case of contempt, and not on what is or is not a so-called 'settled matter' of history.

4. On the question of the inappropriateness of writing on matters that were 'sub judice', it should be noted that (as we told the court, and the court accepted) the matter in discussion had no relevance at all to the matter for decision by the court - which was whether Sayedee was guilty of particular offenses. Moreover, in order for a comment on a sub judice matter to be in contempt, it must amount to 'substantial interference'.

The court itself states that a person 'is not debarred in initiating discussion on a matter which may be fairly regarded as a matter of public interest' but then goes onto argue that the content of the article 'does not seem to have been made in the public interest.' Why not? Because the judgment says it has 'shaken and demeaned the emotion of the nation'.

This is a very broad conclusion to make. Subsequently the judgment makes similar comments about the article. It says that the article has fanned 'the flame of grave disgrace in the mind of the nation', that it has 'has obviously caused severe hurt to the emotion of the nation', 'disgraces and demeans nation’s wishes and holy emotion', and 'has been gravely disrespectful to the nation'. The court does not explain the basis for this.

In this context it is notable that article was published over two years before the applicant brought the matter to the court, and was circulated immediately after publication to a wide variety of people including ICT prosecutors and investigators (see here), none of whom chose to take any action or make such a comment at the time (something which we brought to the attention of the Tribunal , but was not mentioned in the judgment).

5. The judgement contains significant criticism of the timing of the post, prior to the trial of Sayedee and  other case. However this was the first time that the court had passed an order in which it had mentioned the numbers of those who had died, so it was an interesting moment to comment on it. There is no other reason than that.

6. The judgement argues that the article has 'belittled' the court. Rather, I would argue that the very mildest of criticism of the Tribunal contained in the blogpost reflects simply a disagreement with the court on a matter that has no impact upon the merit of the case before it.

7. The judgement argues that I have 'exceed[ed] the limit of his professional ethics', though it does not state in what way or how.

8. The judgement argues that  I do not have the 'expertise or license' to 'advise' the court, but it is not clear what particular expertise is required (which the court does not consider that I have) to simply state that 'it may well have been preferable' for the court to have done something differently, when the language is so mild, and the court has not found a single inaccuracy within the post.

9. In the judgement it is stated at para 38 that 'It is claimed that the contemnor has been working on war of liberation of Bangladesh since last couple of year'. In fact it was  'claimed' that I had first started working on this issue since 1995 when I was involved in the making of a film on war crimes in Bangladesh, nearly 20 years ago - a film which was was referred to at length by this very Tribunal in its judgement against Chowdhury Mueenuddin. This was not mentioned in the judgement. Moreover, if the Tribunal was referrring to my work on the Bangladesh War Crimes Blog, this started 4 years ago (not 2).

10. It remains unclear how I am 'lewd' - which means 'crude and offensive in a sexual way', or indeed, how this is relevant to the matter at hand.

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