Thursday, December 4, 2014

Analysis of the contempt judgement 3: The second article - 'Shaking the confidence'

This is the third in a series of articles analyzing the judgement against me involving three articles in this blog. The first one can be seen here, and 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 second article which the Tribunal considered, entitled Azad judgement analysis 1; 'in-absentia' trials and defense inadequacy. Unlike the first article, this dealt with a completed judgement, that of Abul Kalam Azad. I would encourage you to read this to appreciate the analysis contained below

The particular part of the article that the tribunal judgement considered was this section:
"The legitimacy of holding an in absentia trial was raised by Abdus Shukur Khan, the defense lawyer appointed by the tribunal (much more about the lawyer later) 
The judgement says that one of the 'pertinent legal issues' raised by the defense lawyer was that the: "trial in absence of accused is not valid, particularly in prosecution and trying an individual on allegation of committing internationally recognized crimes)"
The Azad judgement answers this by pointing to the UN supported Special Trial for Lebanon, as well as the jurisprudence (case law) of the European Court of Human Rights and that of the Human Rights Committee (in relation to the International Convention on Civil and Political Rights). 
However the judgement does so in a misleading way - such that arguably, it should have come to rather different conclusions.
The article then goes onto show that the UN supported Special Trial for Lebanon only allows in absentia trials if there is a right for a re-trial were the accused to return into the court's jurisdiction, and that European Court of Human Rights case law also only allows in absentia trials in that situation. 

The Tribunal found this article in contempt and made the following comments:
By this article circulated in his blog the contemnor questions the validity of holding trial in absentia [in the case of Abul Kalam Azad] terming it ‘misleading’. (para 48) 
However, merely for the reason of dissimilarity of provisions, in respect of holding trial in absentia or absence of provisions of holding ‘fresh trial’ in the Act of 1973 , the contemnor by his writing has made a futile attempt intending to identify the ‘ignorance of the Tribunal’ by blatantly discarding its authority, on this issue. (para 50) 
At the out set, we ask the contemnor whether he is conversant with the Act of 1973 under which the Tribunal has been performing its judicial functions. Next, is he ignorant about the reason of holding absentia trial against Abul Kalam Azad? Does the contemnor not know how and at what stage of proceeding Abul Kalam Azad managed to flee, quitting the country? (para 51) 
Is there any right in exercise of which a journalist can make comment terming the observation of a court of law ‘misleading’? (para 54) 
It was totally ‘misconceived’ and ‘immaterial’ to make criticism on the issue of holding trial in absentia before the ICT-2, in the name of right to freedom of expression. It rather questions the authority and jurisdiction of the Tribunal, as given by the Statute of 1973 and as such it was not for the ‘public good’ and a ‘fair’ one. (para 57) 
The contemnor David Bergman, by circulating criticism, deliberately attempted to term the observation of the Tribunal on the issue of holding in absentia trial “misleading” and it clearly intended to lower down and demean Tribunal’s authority and ability that finally tends to shake the public confidence upon the judicial machinery of the Tribunal and its governing Statute. Deliberate use of such disparaging and scurrilous ‘words’ in criticizing Tribunal’s observation based on the provisions contained in the Act of 1973, made in its judgment, was of course not in the ‘public interest’ or ‘fair’ and it being ‘scandalous’ constitutes the offence of ‘contempt’, we conclude. (para 58)
 1. It should be noted that the judgement did not find any factual or legal inaccuracy in the article in question.

2. The judgement states that through my comment, I "question the validity of holding trial in absentia". However, I do not state anywhere in the blog that the International Crimes Tribunal cannot undertake in absentia trials. All I say is that international courts and case law do not support the kinds of in absentia trials which are being undertaken by the ICT in Bangladesh - where there is no right to a re-trial. And I only raised that question, because the Tribunal itself in its judgement argued that international law does support the in absentia trials in Bangladesh.

3. The judgement states that my blogpost is (a) a "futile attempt intending to identify the ‘ignorance of the Tribunal’ by blatantly discarding its authority", (b) "questions the authority and jurisdiction of the Tribunal" and (d) "it clearly intended to lower down and demean Tribunal’s authority and ability that (e) "tends to shake the public confidence upon the judicial machinery."

However, the Judgment itself has also stated that "We always welcome post-verdict criticism".

4. The judgement questions my knowledge about why an in absentia trial was appropriate - but my article does not in any way question the right of the tribunal, in law, to hold an in absentia trial under Bangladesh law. It only questions the manner in which the Azad judgement has explained that these trials are compliant with international law norms.

5. As to the word 'misleading'. Yes, I certainly would have preferred that I did not write this word, since it has a number of different meanings, and in legal circles in Bangladesh it can have a particularly pejorative meaning. We argued before the tribunal - and it should be noted that our arguments on this are not mentioned in the judgement - that if you look at dictionaries  word 'misleading' can also mean simply 'inaccurate' and not 'intentionally deceptive'.  The Tribunal does not state why it was of the view that we used the word in one particular way rather than another.

As noted in the judgement, we removed the word, 'misleading' back in February and changed it for the word 'inaccurate'.

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