Sunday, April 12, 2015

Telling the truth about the tribunal process

There are some very necessary conversations to be had about the the International Crimes Tribunal in Bangladesh. There are important things to be said both by those who, on the one hand  unconditionally support the tribunal, and those who, on the other hand, support the principle of accountability for 1971 crimes and the need for tribunal, but who are concerned about aspects of the particular process.

Unfortunately in Bangladesh, few who fall into the second category feel able to speak publicly about their position, and one wonders whether now any independent newspaper would publish what they had to say. There are two main reasons for this: First, a real fear that a word 'wrong' could result in proceedings for contempt of court before the International Crimes Tribunal;  and secondly having to suffer the resulting abuse and ignorant criticism on social networks and newspapers suggesting that, however thoughtful and accurate one's analysis, you are a 'supporter of Jammat', 'paid by Jammat', 'a supporter of war criminals', and even a 'collaborator' etc etc

As a result the only part of the conversation about the Tribunal that is heard in Bangladesh is from those who unconditionally support the tribunal. It is a great pity that it is not possible to have a healthy and informed debate on these issues.

Whilst there is, from this camp, some very thoughtful and moving writing about the tribunal, there are, also from this camp, those who make completely inaccurate statements about the tribunal which are allowed to remain unchallenged. The Daily Star today carried an op-ed titled, 'The debate over war crimes trials: is there any merit?', claiming that no criticism of the tribunals is merited. It is written by the Convenor of the Canadian Committee for Human Rights and Democracy in Bangladesh, so one would hope at least he would know what he was talking about. However, that is far from the case.

His argument in support of the tribunal is set out out in two key paragraphs near the end of his article and are set out below.
In my limited research, I have not come across any war crimes tribunal whose proceedings are so transparent and where the defendants are given VIP treatment. Also in accordance with international standards, trials are open to all. At the same time, the accused are given adequate time and facilities to prepare their cases. Prosecutors must furnish them a list of witnesses along with the copies of recorded statements and documents upon which they intend to rely. Defendants also have an unfettered right to call witnesses and to cross-examine prosecution witnesses. All of this is in keeping with the International Covenant on Civil and Political Rights. 
The US ambassador-at-large for war crimes Stephen Rapp, who visited Bangladesh a number of times over the past years to monitor the trial process, has emphatically lauded all attributes of the trial process in his last visit to Dhaka in August. In his words, “the best way in the world to find the truth is the judicial process where the evidence is presented, where witnesses are cross-examined, where both sides have an opportunity to be heard and that is what is being done here [Bangladesh]. It is the process that the American government strongly supports,” he affirmed.
Perhaps the only correct statement are his first three words, 'in my limited research'. His research was certainly very limited! There are certainly positive things that can be said about the tribunal - but what the article sets out in these two paragraphs is mostly inaccurate.

Let me go through each of the statements in the two paragraphs in turn.

1. "I have not come across any war crimes tribunal whose proceedings are so transparent" 

These are the ways in which the tribunal in Bangladesh are not as transparent as most other international crimes tribunals. (a) there is no transcript of proceedings; (b) applications made by prosecutors and lawyers for the accused are not publicly available; (c) Tribunal orders given from August 2010 until September 2013 (for Tribunal 1) and June 2013 (for Tribunal 2) are not publicly available; (d) it is difficult (though not impossible) for any person who is not a journalist, lawyer or a party to the tribunal to gain entry to the proceedings; (e) it is not filmed for internet viewing. For these reasons, it cannot be said that the tribunal is a particularly transparent process.

2. "….. and where the defendants are given VIP treatment." 

I think one can be assured that the facilities of the jails in the Hague, for example are better than those in Bangladesh - even if in Bangladesh they are called VIP.

3. "Also in accordance with international standards, trials are open to all." 

Technically the trials are open to all, but in practice they are difficult to access if you are an ordinary member of the public who just wanted to watch the proceedings. You need to get a pass, and to get a pass you need to get permission from the registrar, but the registrar is inside the tribunal building, and it is not easy to get access to the registrar to get the permission. 

4.  "At the same time, the accused are given adequate time and facilities to prepare their cases." 

Clearly, this depends on what is considered to be 'adequate time' to prepare their cases. The law states that a trial can start as little as three weeks after the prosecutor provides the 'list of witnesses intended to be produced along with the recorded statement of such witnesses … and copies of documents which the prosecution intends to rely upon in support of such charges.' (section 9(3)) Some of the trials have taken place just over three weeks after the lawyer has received the documents, and in other cases they have been given a few more months. 

5. "Prosecutors must furnish them a list of witnesses along with the copies of recorded statements and documents upon which they intend to rely." 

This is correct - but it is the minimum you would expect the prosecutors to provide. It perhaps should be noted that the law does not though require prosecutors to provide any exculpatory evidence that they have found, which is required in the international tribunals and is a requirement common in developed legal systems

6. "Defendants also have an unfettered right to call witnesses … "

The defendants do not have an unfettered right to call witnesses. The Tribunal has limited the number of witnesses whom the accused is allowed to testify on his behalf. The Tribunal's decision about the numbers of witnesses is generally made right after the prosecution has finished calling its evidence and is made without knowing the nature of the evidence that other witnesses, that the defense have sought to call, would have given. As a result: 
- in the trial of Salauddin Quader Chowdhury, the prosecution brought 41 witnesses to the tribunal to prove 23 offences, but the defence was restricted to only calling 5 witnesses.
- in the case of Abdul Alim, the prosecution was allowed 35 witnesses, but the defence was restricted to 3 witnesses to disprove 17 offences.
- 4 witnesses have been permitted in Motiur Rahman Nizami’s defence relating to 16 charges;
- 5 witnesses in the trial of Kamaruzzaman involving 7 offenses;
- and 6 in the case of Abdul Quader Molla in defence of 6 offenses.
- only in the cases of Delwar Hossain Sayedee (the first case brought to trial) and Golam Azam were the number of defence witnesses allowed to be in double figures – 20 and 12 respectively.
To read about the issue of the lack of witnesses, click here

(It should be noted that the defense have in some cases initially sought to call a totally unreasonable numbers of witnesses to the tribunal)

6. "…. and to cross-examine prosecution witnesses." 

It is not correct to say that there is an 'unfettered right … to cross examine witnesses'. The appellate division has ruled that the accused cannot cross examine a witness on any previous statements that that witness had previously given. This includes statements that the witnesses are supposed to have given to the Tribunal investigation officer - which is the basis for the whole trial proceeding. This is a rule that does not apply in normal Bangladesh law nor do I know of any other jurisdiction where it applies. This is  significant as it means that the defense lawyers cannot point to the contractions between what witnesses stated in court and what they had earlier stated to either the investigation officer or in interviews to other people. To read how this was significant in the Molla case, see here

7. "The US ambassador-at-large for war crimes Stephen Rapp, who visited Bangladesh a number of times over the past years to monitor the trial process, has emphatically lauded all attributes of the trial process in his last visit to Dhaka in August. …."

This is also not true. This is what he said at the press conference he gave, and where a transcript is available:
What I have noted before is that there are aspects as to the rights of the defense that are not observed in a way that is consistent with international law. The defense has had situations where they have not been able to summon witnesses on their own, and under the international covenant it is said the defense shall have the same right to summon witnesses as the prosecution. And when it comes to cross-examination, being able to cross-examine witnesses based on prior inconsistent statements has been restricted. When it comes to questions of the substantive law, I was very hopeful that it be clear that crimes against humanity would be defined as they are internationally, as being part of a widespread or systematic attack against a civilian population. Such attacks obviously happened here.
But it should be clear that the proof must be provided. And I think there were efforts by the prosecution to put on the proof that was there. Later on a decision was made that you do not to need do it—that you do not need to follow these international standards. You can just say that a crime against humanity is any attack against a civilian. Well that is not an international crime. That is an ordinary murder.

So there are places where I have been disappointed, frankly, by the process. But it is not done yet and I am hopeful. I do not want to be someone that just criticizes and points to errors, because in every system there are challenges. But here in this one where you start with a statute that does not contain the modern international criminal law and when you have a constitutional provision that say none of the rights that apply under your constitution apply to this court, there is a lot of room for development. There are positive developments, positive aspects, and there are some that are less than positive.

So as we would say in our country, where we have juries: The jury is still out. We are still evaluating how this is going and are hoping that as this process moves forward that it will meet the high goals and aspirations that all of us have for it.
As I say, there are aspects about it which I am happy, others that I am not happy. Okay?
In addition, subsequent to this Rapp gave a phone interview to a number of journalists, which can be read here, which also indicates his concerns.


Saturday, April 11, 2015

Why do people support the tribunal despite criticisms?

Why is it that so few liberals, progressives and human rights activists in Bangladesh are willing to accept the criticisms articulated by many independent and well respected observers about the International Crimes Tribunal? Why have neither of the country's two main independent human rights organisations, Ain-o-Salish Kendra or Odhikar, given any statement remarking on concerns about the tribunal?. With so many people clapping for joy at the  execution of Md Kamaruzzman - and just hours before the publication of what are very likely to be jubilant headlines in tomorrow's newspapers here in Bangladesh - I am pasting part of a short feature I wrote late last year for Al Jazeera looking at this issue.

(To see statements from human rights organizations and international bodies calling to a halt to the execution, see here)
----------------------------------
Bangladesh war trials: Justice or politics?Many contend the war crime trials hold leaders accountable for crimes during the 1971 war, others argue it is revenge.
….. Jamaat-e-Islami, now a key member of the opposition alliance against the Awami League government, has argued that the trials represent a political vendetta against the party.

However, polls conducted in 2013 showed that the legal process is supported by an overwhelming majority of the country with 86 percent of those polled stating they wanted trials to proceed. 
'Meting out justice' 
Some contend that the trials should be viewed as holding leaders answerable for crimes for which they had previously escaped accountability and not an act of retribution.
In a recent article, Mahfuz Anam, the editor of the country's leading English language newspaper The Daily Star, stated, "It is not revenge. It is not retribution. It is not settling of accounts. And politics, it is definitely not. It is meting out justice."
"It is holding political leaders accountable for their action especially if they commit crimes against humanity. It is fulfilling an inner urge for justice and fair play. In the final analysis it is establishing the supremacy of law and humanitarian values that we have learnt to hold dear in our hearts."
The perspective, however, sits in stark contrast with the views of international human rights organisations which have been uniformly critical of the process, though still supporting the need to hold trials.
The International Commission of Jurists has stated that the tribunal does "not adhere to international standards of a fair trial and due process" and that there are "serious procedure flaws at all stages".
And Human Rights Watch has also said that that the conviction of Golam Azam, the head of the Jamaat in 1971, was based on "flawed proceedings".
The International Centre for Transitional Justice also called for the current judicial proceedings to be "suspended" earlier this year pointing to issues of "fundamental unfairness".

Lack of criticism 
Although Anam's article refers to unwarranted "incidents" at the tribunal and the possibility of "some procedural flaws", the issues raised by the international human rights lobby continued to be ignored.
He is not alone in this lack of interest in fair trial criticisms.
Neither of the country's two main independent human rights organisations, Ain-o-Salish Kendra or Odhikar, have given any statement remarking on any concerns.
And the autonomous National Human Rights Commission, far from voicing any dissent, has been highly supportive of the trial process.
So, while some commentators have suggested that the trial process is dividing the country, the most notable chasm stands between supporters of the tribunal, which include the country's human rights community and other members of wider civil society, and international human rights organisations.
Criticisms of the trials have been largely ignored in Bangladesh, with many believing that the trials are fair, preferring to accept the tribunal's view that the law and process have ensured that the "fundamental and key elements of [a] fair trial" exist.
Iftekaruzzaman, the Executive Director of Transparency International points out that it is in the nature of these kinds of highly charged trials dealing with international crimes that there is disagreement about issues of due process - and so the opinions of international organisations should be put in that context.
"There is certainly questions about whether or not the international human rights organisations are being sufficiently objective or not," Iftekaruzzaman told Al Jazeera.
"For example in relation to the death penalty, people ask why is it that the only time these organisations make statements against the death penalty involves those convicted of crimes against humanity, and not on any other cases."
There are also those who argue that the international organisations are judging these particular trials from too high a standard.
"When the criminal justice process in Bangladesh is riddled with corruption, torture and politicisation, and there is a general lack of due process, people wonder why there should there be any reason for concern about these particular trials," Dr Shahnaz Huda, chairman of the law department at Dhaka University told Al Jazeera.
Syeed Ahmed, a blogger on the war crimes trials, agrees. "People don't think that the alleged war criminals are being treated any worse than common criminals. So, unless the whole legal system is upgraded, people are unwilling to give special treatment for the alleged war criminals."

Manufactured outcry 
There is also the view that the the fair trial criticisms are really just a cover for those who are really only interested in helping the accused escape punishment.
The sentiment has merged with scepticism about the integrity of the foreign human rights organisations themselves.
"Loud voices of human rights agencies regarding fairness of the war crimes trials has failed to create traction here because they have not made the same kind of arguments in relation to other trials in Bangladesh." Ahmed told Al Jazeera.
For some, the issue of fair trials is simply not significant, since in the view of many, these men are known to be guilty of crimes in 1971, and who have managed till now to use their political influence to escape justice, and the sooner they are punished the better.
"People in Bangladesh 'know' that these men are guilty, so they do not see any reason to go through this process to try to find out whether the men are guilty of not," Huda told Al Jazeera.
"Their guilt is so accepted by everyone, that there is no need for due process."
This view might help explain why the same polls that suggested four-fifths of the country supported the tribunals, also showed a majority of people, 63 percent, thought that the trials were "unfair" or "very unfair".
Ahmed also thinks that this apparently conflicting positions about the war crimes trials reflect people's recognition that there are no better options.
"The fact that the Awami League is the only party willing and able to conduct this war crimes trial [means that people are] settling for whatever this government is offering. Four decades of rehabilitation and amnesty of war criminals have made people impatient, rejecting questionable concerns about fair trials," he added.
While fair trial advocates argue that due process concerns should trump all these arguments, there are not many in Bangladesh who are willing to accept that their assessments should have any influence on the process itself.

Statements seeking stay on Kamaruzzaman execution

With Jamaat leader Kamaruzzman about to face the death penalty probably tonight, human rights organizations and other international bodies outside Bangladesh have called on the government to stay the execution - though no similar organizations inside the country have as far as I known done so.*

(See also: Why do people support the tribunal despite criticisms?)

Here are the main statements that have been published:


"The UN human rights experts have on several occasions expressed alarm regarding serious violations of fair trial and due process guarantees in the judicial proceedings before the Tribunal that were reported to them"

United Nations, High Commissioner for Human Rights: Halt execution

"The trial was reportedly rife with irregularities and did not meet international fair trial standards."

Human Rights Watch: Suspend death sentence of sentence of war crimes accused

"At his trial, the court arbitrarily limited the ability of the defense to submit evidence, including witnesses and documents. The court denied the defense the opportunity to challenge the credibility of prosecution witnesses by rejecting witnesses’ earlier statements that were inconsistent with their trial testimony."


"The European Union reiterates its opposition to the use of capital punishment in all cases and under all circumstances. The EU has consistently called for its universal abolition. Capital punishment is not a deterrent against crime and makes miscarriages of justice irreversible. The European Union calls on Bangladeshi authorities to commute all death sentences and to introduce a moratorium on executions as a first step towards definitive abolition of capital punishment.

Amnesty International: President must stop imminent execution

"Bangladeshi civil society, Amnesty International and other international bodies have welcomed the government’s move to end the longstanding impunity in Bangladesh for serious human rights violations in 1971. However, most observers including Amnesty International have expressed concern over how the proceedings before the ICT violated international fair trial standards There were also irregularities in the proceedings, for instance, the court did not allow the defense to challenge the credibility of prosecution witnesses.".

UK Bar Human Rights Committee: Stay Execution pending independent review

"BHRC has raised serious concerns repeatedly about the fairness of trials before the International Crimes Tribunal (ICT) in Bangladesh, and in particular in respect of the trial of Muhammad Kamaruzzaman in a statement of 11 November 2014. There is evidence that the trial of Kamaruzzaman was flawed on a number of counts, including arbitrary limitation of witness evidence, limited ability to cross examine key witnesses and concerns relating to the impartiality of judges which resulted in an application to recuse two judges of bias being summarily dismissed. ….

"While the BHRC is opposed to the death penalty in all circumstances, it urges the Bangladeshi authorities now to take immediate steps to prevent an execution that arises out of a flawed trial. An independent review of this case and all other cases currently before the ICT must be conducted if victims are to gain genuine accountability for the atrocities committed in 1971."

Commonwealth Lawyers Association: Concerned over sentencing of Md Kamaruzzaman

"The CLA supports steps taken to seek justice and address impunity. Further, it supports the principle of the International Crimes Tribunal (ICT), and its stated aim of prosecuting those who are alleged to be responsible for atrocities committed during the 1971 War of Independence, however, the ICT in its present form does neither of these two things. The likely execution of Kamaruzzaman will be the second instance of state sponsored murder concerning proceedings before the ICT, the first being the execution of Abdul Quader Molla.

The ICT has not adhered to its obligations under domestic Bangladesh law, nor has it met its obligations under those international treaties and agreements to which Bangladesh is a state party, in its failure to ensure all those who appear before it are afforded a fair trial."

At all stages of the process, from court of first instance to appellate courts, the ICT has either failed to acknowledge the serious shortcomings of the procedures adopted, or, if it has recognised such shortcomings, it has failed to address them.

United States government: Best not to proceed

"We have seen progress, but still believe that further improvements to the ICT process could ensure these proceedings meet domestic and international obligations. Until these obligations can be consistently met, it is best not to proceed with executions given the irreversibility of a sentence of death."

* the initial version of this post stated that the lack of a US government statement was notable. However, late in the day, just a few hours before Kamaruzzman was executed, a statement was published and is included above

Monday, April 6, 2015

For the government, is this a good time for the execution of Kamaruzzaman?

Md Kamaruzzman, sentenced to death for 1971 war crimes
With the decision today by the Appellate Division to dismiss the review application made by Md Kamaruzzaman (against the decision of the same court which had earlier upheld the sentence of death), the government is now in a position to execute him.

There does remain the issue of clemency. The appellate division in its decision involving Abdul Quader Molla (involving his review application) accepted that a convicted war criminal does have a right to make a mercy petition, but goes onto state the existing time limits of 7 and 21 days set out in the jail code should not apply. It states that the processes of seeking and disposal of a mercy application, should be done as 'expeditiously as soon as possible'. The judgement states at p.26
He should be informed of his privileges to file a review or a mercy petition, as the case may be, as soon as the intimation about the confirmation of sentence is received by the jail authority and to fix a short date for execution until the existing rules are amended. The petition of review and mercy should be disposed of expeditiously as soon as possible. If the prisoner does not choose to avail of the privileges, the sentence should be executed on the date so fixed without delay, which have become ineffective under prevailing changed circumstances.
Neither Kamaruzzaman, nor his defense counsel, have stated whether he will seek clemency - and no doubt the defense will try and stretch this time out of not saying anything one way or the other as long as possible - but I cannot see Kamaruzzman seeking clemency. This is first because seeking clemency would imply an admission of guilt on his part, and secondly, there is no way of knowing that the clemency would be granted. Kamaruzzman, and the Jamaat-e-Islami, would not want to be in a situation of first admitting guilt and then not being given clemency!

For the government, is this a good timing for an execution? Intriguingly it is likely to happen just before  the mayor elections in Dhaka and Chittagong - just as the Molla execution  took place in December 2013, just weeks before the January 2014 national elections.

Arguably, there at least three reasons why government decision makers might think this was a good time to execute Mollah.

1. The government has categorically defeated the BNP which had sought to force the government to hold new elections. Khaleda Zia has retreated back home with her metaphorical tail between her legs, having gained almost nothing for her party, and lost an enormous amount (imprisonment of thousands of her activists, deaths and injuries of dozens in police shootings, and the remaining activists in hiding etc) - not even mentioning of course the loss of other lives and costs to the country. The Jammat-e-Islami is in a similar position - particularly as their fortunes are tied closely to that of the BNP. The opposition has therefore never been organizationally or morally weaker (though ironically electorally that may not be the case). With the opposition in such a situation, this could be seen by the government as a perfect time to execute Kamarauzzaman - the icing on the cake.

2. The execution of Kamaruzzaman helps to define the Awami League as a 'pro-liberation party', and helps to differentiate the party clearly from the BNP. At a time of elections this is helpful to the Awami League, as it will assist the party in getting the support of people in centre ground who are perhaps skeptical of the governing party, but in favor of justice for 1971. It will of course gain the enthusiasm of some of the party's base.

3. The international community has rarely been so weak in its interactions with the government on human rights issues - and an execution now will gain, I would judge, far less attention or concern than the execution of Molla in December 2013.

Thursday, April 2, 2015

Contempt proceedings against 23 Bangladeshi citizens

Yesterday, on 1 April - and no, it was no April's fool - the International Crimes Tribunal passed an order initiating contempt proceedings against 23 Bangladeshi citizens perhaps breaking a record in the number of defendants ever accused in a single case of contempt of court, involving the allegation of 'scandalization of the court'.

This order is a culmination of proceedings which was initiated after 49 citizens signed a statement critical of a judgment of the tribunal which had held that writings on this blog was in contempt of court. 
The '23' who now have proceedings against them are those who were unwilling to provide an 'unconditional apology' for the statement that they had made.

As this and previous orders have set out, the court required that any such apology must seek the 'mercy of the court' and show 'true remorse and repentance for their comments'. The court found that the statements of 'regret 'of the 23 - which included pointing to their constitutional rights of freedom of expression - was not an adequate apology.

It should also be noted that, as part of the same proceedings, the New York Times was asked to provide an explanation to the Tribunal for an editorial that it wrote on the same judgement which the tribunal claimed was 'derogatory and unwarranted.' The paper has not responded to the court and the Tribunal has stated that it will pass an order on this matter on 23 April 2015.

Here are the main previous orders
28 Dec 2014: To 'Protect its jurisdiction and authority' 
14 Jan 2015:  'Explain yourselves' 
11 Feb 2015: The New York Times's 'unwarranted and derogatory comment' 
23 Feb 2015: Throw yourself 'at the mercy of this tribunal'
3, 18 Mar 2015: 'Upgrading the majesty of the court', a 'signal of upmost admiration'
--------------------

Here is the text of the order passed on 1 April 2015
Today Mr. Anisul Hassan, Advocate representing Mr. Rezaur Rahman by filing a supplementary written statement expressed unconditional apology for the conduct he had shown being a party to the impugned statement. We have heard the learned Advocate. We have seen and perused the explanation. It is to be noted that already 25 makers of the statement have been exonerated as they have tendered unconditional apology for their conduct. Accordingly Mr. Rezaur Rahman is also exonerated with observation that in future he will remain cautious in making any comment on the lawful authority and jurisdiction of the Tribunal, a lawfully constituted judicial forum.

1. We have patiently ploughed through the explanation submitted by the 23 makers to the statement in question. It appears that by appearing in person and also by engaging counsel, by submitting written explanation (1) Masud Khan, (2) Afsan Chowdhury, (3) Ziaur Rahman, (4) Hana Shams Ahmed, (5) Anu Muhammad, (6) Anusheh Anadil, (7) Muktasree Chakma Sathi, (8) Lubna Marium, (9) Farida Akhter, (10) Shireen Huq, (11) Dr. Zafrullah Chowdhury, (12) Mr. Ali Ahmed Ziauddin, (13) Rahnuma Ahmed, (14) Dr. Shahidul Alam, (15) Dr. C.R. Abrar, (16) Dr. Bina D' Costa, (17) Mahmud Rahman, (18) Dr. Zarina Nahar Kabir, (19) Leesa Gazi, (20) Shabnam Nadiya, (21) Nasrin Siraj Annie, (22) Tibra Ali, (23) Dr. Delwar Hussain expressed ‘regret’ for the comment they made in the said statement.

2. At the out set, it is to be noted that out of 49 citizens who were asked to explain their conduct regarding the impugned statement they made, 26 citizens have already threw them to the mercy of the Tribunal seeking unconditional apology and accordingly they have already been exonerated. But the explanation furnished by 23 citizens the makers to


the impugned ‘statement’ through which they have expressed their mere ‘regret’ by saying–
"Statement and conduct was not in any way intended to 'belittle the authority and institutional dignity of the Tribunal in the mind of public' nor was it intended to question the 'openness and transparency of the Tribunal' as stated in the said Order of the Hon'ble Tribunal, and thus regret any such impression inadvertently made."
3. At the same time they have made an effort to defend by taking protection of fundamental rights enshrined in the Constitution of Bangladesh in respect of freedom of thought and conscience and freedoms of expression and association."

4. Prima facie it appears that the core content of the ‘statement’ questions ‘transparency and openness’ of the judicial proceedings before the Tribunal and also justification of the order sentencing a journalist for the act of scandalising the Tribunal constituting the offence of contempt.

5. The way the makers to the ‘statement’ have expressed their concern on the matter arising out of the order convicting David Bergman for the offence of contempt prima facie appears to have tended to belittle the authority and institutional dignity of the Tribunal in the mind of public which goes against ‘public interest’.

6. We are constrained to infer it prima facie that the 23 citizens in the name of expressing concern by making the impugned statement are not found to have expressed true remorse and repentance for their comment, by submitting explanation. Rather, they have made effort to justify their conduct they have shown by initiating the impugned statement.

7. The Tribunal finds the ‘regret’ they have expressed it to be without real and sincere remorse. The Tribunal thus finds that it has been merely tendered as a ‘weapon of defence’. It is to be noted that ‘regret’ and ‘justification’ or ‘defence’ cannot stand together. We are not convinced to accept it particularly when it is coupled with a ‘defence’. Thus it is rejected.

8. In view of above, we are of the view that for protecting authority and dignity of the Tribunal and to keep the notion of administration of justice untainted in the mind of public it is appropriate to draw contempt proceeding under section 11(4) of the International Crimes (Tribunals) Act 1973 against (1) Masud Khan, (2) Afsan Chowdhury, (3) Ziaur Rahman, (4) Hana Shams Ahmed, (5) Anu Muhammad, (6) Anusheh Anadil, (7) Muktasree Chakma Sathi, (8) Lubna Marium, (9) Farida Akhter, (10) Shireen Huq, (11) Dr. Zafrullah Chowdhury, (12) Mr. Ali Ahmed Ziauddin, (13) Rahnuma Ahmed, (14) Dr. Shahidul Alam, (15) Dr. C.R. Abrar, (16) Dr. Bina D' Costa, (17) Mahmud Rahman, (18) Dr. Zarina Nahar Kabir, (19) Leesa Gazi, (20) Shabnam Nadiya, (21) Nasrin Siraj Annie, (22) Tibra Ali, (23) Dr. Delwar Hussain the makers to the impugned ‘statement’ published in the daily Prothom Alo on 20 December 2014.

9. As we find prima facie case in initiating contempt proceedings against those 23 citizens, we decide to ask each of those 23 citizens, to show cause, as to why they will not be punished individually for contempt of the Tribunal for scandalizing the Tribunal in the mind of the public by making impugned statement and thereby demean its authority and dignity under the provision of section 11(4) of the International Crime (Tribunals) Act, 1973 on or before 23.04.2015.

10. The eight (8) persons who have been staying in abroad may be duly notified through the respective Bangladesh Mission. Ministry of Foreign Affairs, Dhaka, Bangladesh is asked to do the needful.

11. Records shows, notice of the order has duly been served upon the respective authority of "New York Times" but they have not responded yet. In such a posture, we are constrained to pass appropriate order regarding the comment made by the "New York Times" for scandalizing the Tribunal in the mind of the public by publishing impugned comment inter alia 'It should immediately overturn Mr. Bergman's Sentence and Conviction' in it's editorial dated 23.12.2014 and thereby demean its (Tribunal's) authority and dignity. 23.04.2015 is fixed for further order. Registrar, ICT is directed to communicate the order accordingly.

Wednesday, April 1, 2015

'Upgrading the majesty of the Tribunal', a signal of 'utmost admiration'

Below are the most recent orders of the International Crimes Tribunal-2 passed on 3 March and 18 March 2015 (which are of a similar nature) in relation to action that the Tribunal has taken against 49 Bangladeshis who were signatories of a statement (published in the Bangladesh news paper Prothom Alo) which commented on a judgement given earlier by the tribunal involving contempt of court.



To understand these proceedings read the following:
Read about:   The background to these proceedings 
28 Dec 2014: To 'Protect its jurisdiction and authority' 
14 Jan 2015:  'Explain yourselves' 
11 Feb 2015: The New York Times's 'unwarranted and derogatory comment' 
23 Feb 2015: Throw yourself 'at the mercy of this tribunal'
In relation to the most recent orders set out below, the language of the first paragraph in each of the orders is the most interesting. I make no comment.
'Their such introspection has not only upgraded the majesty of the Tribunal but also signify their utmost admiration to the process of the administration of justice that will invariably usher reposing faith by the general mass on the fairness of Court of law in dispensing justice.
3 March 2015
Today is fixed for passing order.  
Today 10 persons namely, Dr. Perveen Hasan, Mr. Ali Riaz, Ms. Tahmina Anam, Mr. Md. Nur Khan, Ms. Faustina Pereira, Ms. Deuty Sabur, Mr. Firdous Azim, Ms. Samia Huq, Mr. Mohiuddin Ahmed and Ms. Sarah Tasnim Shehabuddin by filing applications have expressed their remorse for the comment they made regarding the conviction of David Bergman. They have also unconditionally apologised for their comments and craved mercy of the Tribunal to exonerate them from further prosecution. Their such introspection has not only upgraded the majesty of the Tribunal but also signify their utmost admiration to the process of the administration of justice that will invariably usher reposing faith by the general mass on the fairness of Court of law in dispensing justice. In such a parlance, we accept the apology tendered by above 10 persons finding it just and proper for their remorseful disposition. Thus, we exonerate them from further prosecution.

By filing applications Ms. Nihad Kabir, the learned advocate representing 8 citizens namely, Mr. Masud Khan, Mr. Afsan Chowdhury, Mr. Ziaur Rahman, Ms. Hana Shams Ahmed, Mr. Anu Muhammad, Ms. Anusheh Anadil, Ms. Muktasree Chakma and Ms. Lubna Marium prayed for some more time for filing their proper explanations.

By filing similar applications Ms. Shirin Huq prayed for some more time on behalf of herself and rest 7 persons who are appearing in the Court in person.

Considering all aspects, we are of the view that justice would be met if the aforesaid 16 persons are given some more time to clarify their position to give their proper explanation. Accordingly, the prayers are allowed.

It appears that two persons namely, Dr. Bina D' Costa and Mr. Abrar have sent some papers to the office of the Tribunal stating why they could not file proper explanation by today, and rest distinguished persons who made the statement through the Bangladesh Missions of the respective countries where they are presently residing have sought for some more time to send their proper explanation.
Considering all aspects, we are of the view that justice would be met if we allow the applications seeking adjournment. Accordingly, the hearing of the matter is adjourned till 18.03.2015.

Record shows that no reply has yet come from the Editorial Board of the international daily the New York Times till today. Necessary order will be passed on the date fixed on this matter.

Let this matter be posted in the list on 18.03.2015 for order.
18 March 2015
Today is fixed for passing order.

By filing an application Dr. Dina M. Siddiqi has expressed her remorse for the comment she made regarding the conviction of David Bergman. She has also unconditionally apologised for her comments and craved mercy of the Tribunal to exonerate her from further prosecution. Her such introspection has not only upgraded the majesty of the Tribunal but also signify her utmost admiration to the process of the administration of justice that will invariably usher reposing faith by the general mass on the fairness of Court of law in dispensing justice. In such a parlance, we accept the apology tendered by her finding it just and proper for her remorseful disposition. Thus, we exonerate her from further prosecution.

By filing an application for adjournment on behalf of 10(ten) persons namely, Masud Khan, Afsan Chowdhury, Ziaur Rahman, Hana Shams Ahmed, Anu Muhammad, Anusheh Anadil, Muktasree Chakma Sathi, Lubna Marium, Farida Akhter and Md. Rezaur Rahman, Mr. Asaduzzaman, the learned advocate prays for adjournment of the case till 01.04.2015 as a last chance.

By filing similar applications Ms. Shirin Huq prayed for some more time on behalf of her and rest 4 persons who are appearing in the Court in person.

Considering all aspects, we are of the view that justice would be met if the aforesaid 15 persons are given some more time to clarify their position to give their proper explanation. Accordingly, the prayers for adjournment are allowed as a last chance.

Let this matter be posted in the list on 01.04.2015 for order.

Friday, February 27, 2015

Throw yourselves "at the mercy of this Tribunal"

Below is the most recent order of the International Crimes Tribunal passed on 23 February 2015,  in relation to action that the Tribunal has taken against 49 Bangladeshis who were signatories of a statement (published in the Bangladesh news paper Prothom Alo) which commented on a judgement given earlier by the tribunal involving contempt of court.

To read (a)  last order of the court involving the New York Times, click here, and (b) the previous sequence of orders, click here

The order passed on 23 February 2015
- accepted the 'unconditional' apology given by two of the signatories "for any dishonor that may have denigrate the dignity and majesty of this Tribunal (sic)" having "thrown themselves at the mercy of this Tribunal."
- allowed the apologies of 12 others to be accepted after they amended their text so that it contained no justification at all of the statement, and contained an unconditional apology and a submission to 'the mercy of the Tribunal;
- 35 other signatories were allowed until 3 March to clarify their position
- the New York Times, which had not responded to the Tribunal's order has also been given until 3 March to explain its editorial commenting on the same order.
- stated that my conduct "was a flagrant onslaught on the independence of the judiciary, destructive of the orderly administration of justice and a challenge to the supremacy of the Rule of Law."
The full order is set out in full below and can also be accessed here:
By order dated 14.01.2015 this Tribunal asked 49 Citizens who had voiced their concern by making statements in “the Daily Prothom Alo” dated 20.12.2014 over awarding punishment to David Bergman-a British national to explain their conduct and position. In view of such order the citizenry have furnished their explanation by engaging counsels as well as in person. Today, following our order dated 08.02.2015 the maker of the statements at home, entered their appearance before this Tribunal. Now, the record is taken up for passing Order.

We have very meticulously perused the article titled “ Bargmen er Shajai Ponchash Nagoriker Udbek” published on 20.12.2014 in the ‘Daily Prothom Alo’, being evolved from an undated testimonial that jointly shared by all those personalities under the caption “Statement of Concern regarding Tribunal’s Contempt Judgement on David Bergman”- so submitted on 31.12.2014 by its ( the Daily Prothom Alo) Editor and each and every explanations. Since we find the tone and tenor of the explanations submitted, is not identical, we seem it expedient to evaluate the explanations independently in the following manner:

First, Dr. Shahdeen Malik, a practicing Lawyer of Supreme Court, Bangladesh in his explanation did not justify the contents that has been published in the Daily Prothom Alo’ dated 20.12.2014 rather has tendered unconditional apology before this Tribunal for any dishonor that may have denigrate the dignity and majesty of this Tribunal. In similar vein, Mr. Hafizuddin Khan, a retired Comptroller and Auditor General, Government of Bangladesh and an ex-advisor to the Care Taker Government Bangladesh has also craved unconditional apology for his concern, he ventilated over awarding the verdict against David Bergman, published. Eventually, both have thrown themselves at the mercy of this Tribunal.

On going through their respective explanation, we at least do not find anything therein as to what prompted them to voice such concern and share the views through issuing a ‘statement’ under the heading “Statement of Concern regarding Tribunal’s Contempt Judgement on David Bergman” that has been published.

The statement in question did not reflect that the makers to it had gone through the decision convicting David Bergman. We think that they would not have made them party to such statement if really had they taken pain in going through the entire decision of the Tribunal.

Conduct of the convicted journalist was a flagrant onslaught on the independence of the judiciary, destructive of the orderly administration of justice and a challenge to the supremacy of the Rule of Law. The maxim "Salus populi suprema lex", that is "the welfare of the people is the supreme law" adequately enunciates the idea of law. This can be achieved only when justice is administered lawfully, judicially, without fear or favour and without being hampered and thwarted, and this cannot be effective unless respect for it is fostered and maintained. We believe that the notable citizens who have tendered apology for their conduct they have shown in the ‘statement’ have been now able to perceive this settled norms and responsibility.

We firmly believe, both the citizens by this time, have earned high esteem and eminence in their respective fields for their immense contribution towards the society and the nation as well by their invaluable analysis on contemporary national issues telecast and broadcast both in electronic and print media as well as in different seminar and symposium for not gaining themselves but for the cause of nation’s upliftment. We thus, fervently hope, in future, they will be more careful in making or sharing any statement that could ever disparage the authority and dignity of the Court of law.

Above all, they have figured out their imprecision in sharing and making statements, called in question. Their such introspection has not only upgraded the majesty of the Tribunal but also signify their utmost admiration to the process of the administration of justice that will invariably usher reposing faith by the general mass on the fairness of court of law in dispensing justice. In such a parlance, we accept the apology tendered by Dr. Shahdeen Malik and Mr. Hafizuddin Khan finding it just and proper for their remorseful disposition and accordingly, we exonerate them from further prosecution.

From the statements of 12 citizens named, Zakir Hossain-human rights activists, Shahnaz Huda-academic, Badiul Alam Majumder- social activist, Imtiaz Ahamed- teacher, Rasheda Khatun- development Practitioner, Naila Khan-Professor,Child Neurology, Ilira Dewan-Private Service holder, Amena Akter Mohshin-teacher, Asif Nazrul-academic, Syeda Rizwana Hasan-academic, Arup Rahee- Private Service holder and Shahina Akhter- Private Service holder though have furnished their explanation separately but their assertion are entirely similar.

In cumulative analysis of paragraph 4 of their explanation, we hold the view that, they have strenuously attempted to justify the correctness of the core-essence of ‘statement’ –that called in question in the instant proceeding and in a very stray manner they sought ‘apology’ leaving it to the prudence of this Tribunal to consider whether their such venture ever constitute contempt of the Tribunal.

When the Tribunal was about to pass the order on the explanation given by these 13 citizens their engaged lawyer Mr. Jotirmoy Barua apprised the Tribunal that his clients are repentant for the statement they made and want to submit them to the mercy of the Tribunal by expressing unconditional apology and for this reason they want 30 minutes time to amend their written explanation.

After allowing the prayer out of 13, 12 citizens have expressed their remorseful unconditional apology to the Tribunal almost in the similar words spelt out by Mr. Shahdeen Malik & Mr. M. Hafizuddin. We are inclined to accept their unconditional apology. Accordingly we exonerate them also from the prosecution.

Ms. Nihad Kabir, the learned advocate representing 14 citizens namely Ms Seuty Sabur, Ms. Faustina Pereira, Mr. Masud Khan, Md. Nur Khan, Mr. Mohiuddin Ahmed, Mr. Afsan Chowdhury, Ms. Firdous Azim, Mr. Ziaur Rahman, Ms. Hana Sams Ahmed, Mr. Anu Muhammad, Ms. Samia Huq, Ms. Anusheh Anadil, Ms. Lubna Marium, Ms. Muktasree Chakma Sathi prayed for some time to take further instructions from her clients to clarify their position. She also prayed time for the same reason on behalf of Ms. Tahmima Anam presently who is residing abroad.

Ms. Shirin Huq with a similar contention prayed for some more time on behalf of herself and rest 7 persons who are appearing in the Court in person.

Mr. Mainul Haque, the learned advocate appeared for Dr. Perveen Hassan also prayed for short adjournment to clarify her position.

Considering all aspects, we are of the view that justice would be met if the aforesaid 35 persons are given some more time to clarify their position. Accordingly, the verbal prayers made by the learned advocates and Ms. Shirin Huq are allowed. They are directed to clarify their position by 3rd March, 2015.

We have also received information from the Ministry of Foreign Affairs regarding service of notice upon the international Daily "New York Times". It appears that Bangladesh Mission in Washington has already communicated the Tribunal's order with the Editorial Board of the "New York Times" an international newspaper published from USA, but they have not responded yet.

New York Times is further asked to explain its conduct regarding publishing the article "Muzzling Speech in Bangladesh' and other comments made by it regarding Mr. Bergman's sentence and conviction by 3rd March 2015.

The office is directed to post this order in the website of the Tribunal and to send the copy of this order to the Ministry of Foreign Affairs to communicate with the same to the Bangladesh Mission in USA so that they can send the copy of the said order to the concerned authority of the international Daily New York Times.

Office is also directed to send the copy of this order to the persons staying aboard through our Missions of the respective countries.