Geofrey Robertson QC and ICT contempt proceedings

Geofrey Robertson QC is one of Britain's most able and renown barristers, who has written widely on war crimes and who has sat as an international appellate judge at the UN sponsored Special Court for Sierra Leone.

One could not seek a more eminent, independent - or indeed appropriate - person to assess the International Crimes Tribunal, and earlier this year he was asked by one of the lawyers acting for the Jamaat to 'provide an independent opinion on their fairness and on the Tribunal’s proceedings and conduct,' and this was published in 2015

To read about the issue relating to the independence of the report

To read about what the report says about prosecution pakistani military officers

I raise this now, since the Robertson report (which has got almost no media attention in Bangladesh) contains a short section looking at the contempt proceedings against myself in relation to writings on this blog - and since now the Tribunal has given its judgement on the subsequent contempt proceedings against 23 people who signed a statement critical of that particular judgment, it is now possible to share what Robertson said about those contempt proceedings.

However, I will share an edited version for fear that my re-publication of the full version could be the cause of further contempt charges - since it uses choice language about the tribunal that will not be considered appropriate under the current ICT contempt jurisprudence.

So those who want to see, exactly what Robertson has to say about the contempt proceedings, go to p.65/66 of the report. Here is the edited version.

"…. and by 2014 the judges have become even more XXXX and XXX of nationalist assumptions. This is demonstrated by their contempt proceedings against David Bergman, an experienced journalist whose work (notably an award-winning Channel 4 film “War Crimes File”) has helped to draw international attention to the need for justice in respect of the 1971 atrocities, and whose blog has provided reliable information about the course of the trials (see fn 126). He was indicted, simply for questioning whether as many as three million civilians were killed in 1971 (see fn127) 

This figure has become a government shibboleth, but is probably exaggerated, like most estimates of war deaths made in the absence of sound demographic evidence. The original source of the 3 million figure appears to have been a report in Pravda, which at the time was providing propaganda support for the Indian government (which has put the death toll at about one million). Most, if not all, independent studies challenge the 3 million estimate, (see fn128) although the likelihood is that there were at least a million casualties, not all of them were victims of the army and its associates. But even to question XXX that three million died was considered to be a crime. “Why did he create this controversy?” “Why did he write about this issue at this time?” were questions put to Bergman’s counsel by the judges who, when they convicted him in December 2014, showed themselves XXXX of the fundamental rule of free speech which permits questioning of any historical “fact” if done without intent to stir up racial hatred. 

Merely for questioning the ‘official’ death toll of three million, the Tribunal judges ruled that Bergman had “hurt the feelings of the nation’ and XXXX accused him of having “neither good faith nor an issue of public interest”. (See fn 129) This finding, in respect of a journalist of good repute writing on an obvious matter of historic interest, whose calculations are supported by most independent studies, does XXX about the XXX of these judges to make accurate findings of fact when “national honour” is perceived to be at stake. The presiding judge, Obeidal Hassan, went so far as to claim that Bergman “has a perverse mindset about the 1971 war. Let the government carefully scan the matter”. This is language which betrays the court’s XXXXX XXXX. XXXXXXX judiciary bound, under its common law, to suffer the scrutiny of honest critics. (see fn 130) It is fair to say that Bergman was only fined the equivalent of £41, but the case reveals a XXXXX on the part of a Tribunal that XXXX criticism.

Initial thoughts on the valiant 49 signatories

Shireen Huq, Rehnuma Ahmed, Zafrullah Chowdhury,
Farida Akhter, and Anusheh Anadil outside the ICT

The Tribunal has now given its judgement on the 23 people who signed a statement critical of a previous judgment of the tribunal which had held that writings on this blog were in contempt of court, but refused to seek an unconditional apology. 22 were cautioned but exonerated. Zafrullah Chowdhury was convicted and sentenced to 1 hour in the custody of the court, with a fine of Tk 5,000

To read about the previous judgement 

against this blog, click here

To read about proceedings involving the signatories to the statement, click here

In due course I will be writing quite a bit about this recent judgment. It raises a lot of interesting issues, (particularly when read along with the original judgement upon which the statement was commenting on), about how contempt law involving an alleged 'scandalization of the court' is interpreted by the Bangladesh courts and particularly the International Crimes Tribunal.

Whilst more and more jurisdictions either no longer have that kind of contempt law (for example, there is no such thing as contempt by scandalization in English law), the Bangladesh courts have an increasingly hardline and broad interpretation.

Here, I just want to make the point about how - unlike in Bangladesh -  journalists in India are able to criticize court judgements without apparent fear of recourse to contempt applications by the courts, or by over enthusiastic lawyers.

A fine example of this is in a recent article on the political website the wire.in - concerning the alleged errors contained in a decision by the Karanataka High Court which acquitted the former Tamil Nadu Chief Minister J Jayalalithaa in a corruption case.

The article refers to 'glaring errors', 'jurists spitting fire' because of the poor quality of the judgement, the 'judiciary giving legal sanction to corruption', the High Court setting  'a bad precedent, one that encourages bribery', and a judgement that 'will bring down the image of the Indian judiciary in the world'

It is simply unimaginable that such an article could be published in Bangladesh - whether it be about a judgement of the ICT, or one of the High court - without ICT prosecutors or other lawyers (who see themselves as protecters of the dignity of the judiciary) immediately pressing for contempt charges being brought, with thunder and fury  It is also difficult to see how a Bangladesh court would not proceed against the writer and publisher of such an article unless they immediately made an unconditional apology. In fact, it is doubtful that even an unconditional apology could exonerate person writing or publishing such an article

The title of the article itself would in all likelihood be sufficient for a contempt case in Bangladesh: 'More than bad maths: Four big errors that let jayalalithaa off the hook."

The article then goes onto state:

[M]ore serious errors of duplication have been found in Judge CR Kumaraswamy’s verdict. It now appears that the High Court has, erroneously, added loan amounts twice to the income of the defendants. This means that the amount calculated by the judge as ‘explained income’ — the basis on which the court has exonerated Jayalalithaa and others — is a highly inflated figure. ... 

In fact, the High Court appears to have made some more glaring errors.

Jurists are spitting fire at the law used by Judge Kumaraswamy on Page 914 of his order acquitting Jayalalithaa. ...

“Is the judiciary giving legal sanction to corruption?” asked a retired High Court judge who did not wish to be named …

Legal eagles say that this ruling by the High Court judge could set a bad precedent, one that encourages bribery ...

The legal fraternity points out other errors in the judgement. ... 

“This judgment will bring down the image of the Indian judiciary in the world …" he said.

[T]he legal fraternity is certainly chafing at what has taken place

The question of course is this:  if such comments do not bring the Indian judiciary into disrepute do not dishonor the Indian High court or justice system, do not demean 'the majesty' of the Indian courts, do not 'debase' the authority of the Indian High court, do not 'belittle the authority and institutional dignity' of the Indian justice system, do not 'severely shake the confidence of general people' in the authority of the Indian courts, do not create a 'hostile impression in the mind of public on the authority and competence of the court', and are therefore not subject to contempt proceedings in India - why then are far, far, far less serious criticisms of judgements given by Bangladesh courts deemed to do so, and be in contempt?