Thursday, December 11, 2014

Index of analysis on contempt judgement against blog

Here is the index of articles analysing the recent Tribunal judgment dealing with contempt involving three articles on this blog.

Below the index, is a summary of the analysis

In good faith: articles, statements in support 
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 Judgment Analysis

1. On a third party's right to initiate proceedings long after publication

2. On the 'settled history' of the 1971 war dead (first article)

3. On 'scurrilous' analysis, in absentia trials (second article)

4. On 'adjudicators or truth' and 'mantras', numbers of 1971 deaths (3rd article)

5. On 'unholy alliances' and 'mouthpieces', the tribunal's view of me
6. On alleged perversity, slander and the 1971 war
7. On 'swinish whites-skinned judges', “pigs”, and “judicial scumbags'

8. On attempt to censorship on 'settled history'

The full judgement can be accessed 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.

Below is a summary of the key points made in the analysis above
Maintainability

The judgment did not refer or engage with a number of our arguments made in court about why the case should not proceed. These arguments were:
- direct parties of the tribunal, including the head of the investigation agency and senior prosecutors, had been made aware of the articles immediately on publication, but did not take any action, and therefore it was inappropriate for a third party, years later to initiate action against the articles.
- A Delhi High court case (the only case in South Asia dealing with this point) held that the date of publication of text on the internet, is the date that the article was first published on the internet, and not the date when a person first accesses the article. So time started over two years ago for the first article, and over one year fro the other two articles.
- there is no legal precedent in Bangladesh or in any other common law jurisdiction for such proceedings involving alleged 'scandalization of a court' to take place a year/two years after publication of an article.
- that the International Crimes (Tribunal) Act 1973 does not permit third parties to make an application or initiate prosecutions, and in fact only permits the investigation agency/prosecutors to do so.

In relation to all three articles

The judgement did not find a single fact or legal point of analysis written in these articles to be inaccurate. It is very unusual for there to be a conviction for contempt, involving alleged 'scandalisation of the court', where no factual or legal inaccuracy is found by the court.

On the 1st and 3rd articles about 1971 numbers

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 does acknowledge that there is 'differing information' on the subject, it is not clear from the judgement how the court came to the conclusion that it can be a 'settled' historical matter. Moreover, the tribunal was dealing with a criminal case of contempt, and not making an assessment of what is and what is not a "settled matter" of history.

The judgement does not set out its grounds for claiming that these articles have fanned 'the flame of grave disgrace in the mind of the nation', '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'. It is unclear how the judges have assessed or read the sentiments of the nation in this way, and how someone/everyone reading the blog would feel these things.

On the first article about 1971 numbers 
Whilst the proceedings in this tribunal were on-going (in that the article was commenting on an indictment) and were technically 'sub judice', the Tribunal itself states in the judgement that a person 'is not debarred in initiating discussion on a matter which may be fairly regarded as a matter of public interest'.  Moreover, the matter that was being discussed had no relevance at all to the issues before the court. And case law clearly shows that commenting on sub judice matters is only a matter of concern if it 'substantially interfered' with the due course of justice.

In relation to the 3rd articles, on 1971 numbers

It is difficult to see how the particular wording in this article (and in particular the word "mantra" which the court focused on) can be described as 'obnoxious', 'scurrilous', 'extremely impolite', 'derogatory, unfounded' or that it suggests a 'malignant' attitude and mindset, was done 'malicious[ly]', done 'consciously to malign and scandalize' the Tribunals, was 'gravely contemptible', 'extremely disrespectful' and involved my 'vomit[ing] of ill-intent'

In relation to the second article about 'in absentia' proceedings

The judgement claims that I "question the validity of holding trial in absentia". However, that is not the case - the article only questions the Tribunal's reasoning about why in absentia trials in Bangladesh complies with international standards.

The judgement says that 'We always welcome post-verdict criticism' but then terms, without any clear basis, the mild criticism in this article (which had suggested that the judgment's explanation was 'misleading') as a "futile attempt intending to identify the ‘ignorance of the Tribunal’ by blatantly discarding its authority", "questions the authority and jurisdiction of the Tribunal" and "it clearly intended to lower down and demean Tribunal’s authority and ability, and "tends to shake the public confidence upon the judicial machinery."

Whatever view one has of the word 'misleading', it is difficult to see how it can be termed 'scurrilous' or 'scandalous', particularly when one of the dictionary definitions of the word, 'misleading' is simply 'inaccurate'.

Descriptions of me 

There is simply no evidence put before the Tribunal by the applicant, or set out in the judgement by the Tribunal, or indeed that exists at all, that support the Tribunal's claims that:
-  an "unholy organised domestic and international attempt to question the judicial process of the Tribunal" has been established and that I have simply endorsed such ‘organised’ ill and futile endeavor", or that
- I have "acted as a mere ‘mouthpiece’ of the quarters engaged in the act of organised undesirable campaign, by circulating unfair, unreasonable and scandalising ‘criticism’.
- that I am "lewd" (which means 'crude and offensive in a sexual way')

On my view on the 1971 war

There is no basis to the Tribunal's claims that the introduction of another article I wrote in 2012 (not subject to this contempt action, but referred to in the judgement) shows  that I am "distorting settled history" have a "perverse view" which reflect a "malicious intent" which has "demeaned the nation's pride" and was "unfounded, purposeful and prejudicial" and was "slanderous to the glorious history" of the war of Independence, and showed an "unholy and purposeful tendency and mind set to demean and malign not only the trial process in the Tribunal but also the ‘magnificent war of liberation" and has shown "patent disrespect to our ‘proclamation of independence."

It should be noted that in discussing this article published for the International Crimes Tribune, an independent journal, the judgement blames me for the title for which I had no responsibility and also, and seems to imply that the title refers to one thing when it refers to something else. In addition, its analysis misquotes the article .
The law of contempt

The Judgement refers to a single case where descriptive 'words' have been considered contempt of court. In this case the article quoted by the court described judges as “swinish whites-skinned judges”, “pigs”, and “judicial scumbags and evil remnants of the British Hong Kong government." There is no wording used in the three articles before this current Tribunal that come anywhere close to this kind of abuse. 
The Judgement does not refer at all to the legal cases - that we pointed out in our arguments before the court - which involved particular critical statements where the court held that there was no contempt of court. We had argued that if these criticisms were not considered contempt, then neither could the criticisms in these three articles.

So none of the following wording considered to be in contempt of court:
- 'blindness of judges';
- the 'unrealistic, contradictory and, in the leading case, erroneous, decisions of the courts',
- 'Everyone, it seems, is out of step, except the courts';
- '[courts should remember that] silence is an option';
- 'We must teach [the judge] a lesson, in this country, and expose him for what he is';
- 'The [judge's] report is being used to destroy me';
- 'the Supreme Court [is] composed of the element from the elite class had their unconcealed sympathy for the haves';
- 'the court is as if a safe shelter for the corrupt of accused persons'; and
- 'the court who grants bail should be held responsible.';

If the publications and utterances referred to above are not considered in contempt, then the statements I made in the three articles which are much more restrained in character, cannot be regarded as in contempt.
Censorship on settled history
The judgement states that "Any one including the contemnor is thus obliged to keep the above observations made by our Apex court on 'settled history' in future." However, with respect, whatever the appellate division may or may not have said about the numbers of those who died in 1971 (without looking at the research on the matter) or indeed on any other aspect of the 1971 war - does not make it unquestionable. And the appellate division certainly did not make that assertion in its judgment. In addition article 39 (1) of the Bangladesh constitution guarantees, 'Freedom of thought and conscience' and does provide any reservation

Analysis of the contempt judgement 8: Censorship on settled history

This is eighth in a series of articles analyzing the Tribunal's contempt 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 article looks at the tribunal judgement's ruling that aspects of the country's history cannot be commented on and written about from what the court understands to be 'settled history'. (Please also see   what the tribunal said about 'settled history' and the 1971 death numbers, here.)

The judgement states as para 122 and 123 the following:
The Appellate Division in disposing of the criminal review petitions [in the Molla case] reiterated acknowledging this settled history as below:
"All the above incidents took place when the people of the country were fighting against the occupation army of Pakistan for liberation of the country."
In disposing of the above petitions, the Appellate Division further observed:
"These offences were perpetrated in Bangladesh following the onslaught of ‘Operation Search Light’ from the night following 25th March, 1971 to 16th December, 1971, by the Pakistani occupation army and their collaborators after the declaration of independence of the country by late Sheikh Mujibur Rahman. There were wide spread atrocities like killing of three million people, rape, arson and looting of unarmed civilians, forcing 10 million people to take shelter in the neighbouring country, India."

Analysis of the contempt judgement 7: 'Swinish whites-skinned judges', “Pigs”, and “judicial scumbags

This is seventh in a series of articles analyzing the Tribunal's contempt 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 article is concerned with a section of the judgement dealing with contempt law

1. The Judgement starts of by referring to a paper written in 2011 by ATH Smith for the New Zealand law commission, and states:
The rationale for an offence of scandalising the court derives from the need to uphold public confidence in the administration of justice. In many ways, this need is particularly acute in a democracy, where the power and legitimacy of the judicial branch of government derives from the willingness of the people to be subject to the rule of law. In consequence, the public must have faith in the judicial system.
However the Judgement does not refer to what Smith says a little later in the report where he suggests an abolition of the category of the offence relevant here, the 'scandalising the court', and where he makes the following comments:

Analysis of the contempt judgement 6: 'Perversity', 'slander' and the 1971 war

This is sixth 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.

In a section of the judgement entitled 'Tendency of the Contemner', the Tribunal states at para 116 that:
 'We further consider it relevant to take notice of an article written by David Bergman published in a foreign magazine in 2012, for the purpose of assessing his attitude towards the 'war of liberation ' in 1971
They then looked at one article, titled "ICT: can one-sided trials be fair?" published in International Justice Tribune, an Independent fortnightly magazine on international criminal justice.

The Tribunal referred to one particular section of this article which reads:
"The tribunal in Dhaka deals with events from March to December 1971, when the Pakistan military used force to try to prevent the Awami League, whose supporters were Bengalis living in East Pakistan (today’s Bangladesh), from coming to power after winning the 1970 elections. The war between the Pakistan army and Awami League supporters and others ended when the Indian army intervened on behalf of the Bengali freedom fighters."

Analysis of the contempt judgement 5: 'Unholy alliances' and 'mouthpieces'?

This is fifth 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 para 79 to 89 of the judgement, in which the Tribunal deals with criticism in the 'public interest' (as well as certain quotes contained in the conclusion)

After the Tribunal commented that criticism 'in the public interest' was permitted, the judgement goes onto say the following:
But since the inception of [the Tribunal] functioning, all quarters have been observing, with anguish the initiation of an unholy organised domestic and international attempt to question the judicial process of the Tribunal, a court of law of an independent country terming the Statute of 1973 flawed. Criticism that the contemnor David Bergman has made in his articles, in other words, has simply endorsed such ‘organised’ ill and futile endeavor and not in the ‘interest of public’. Such malicious attempt has not made any debarring situation for the nation to remain distanced from their urge of seeking justice, true. But it however might have intended to create mystification and extreme derogatory impression in the mind of public and the relief seekers. Thus, contemnor’s conduct does not go with the ‘public good’. We consider it an extraordinary situation which warrants
intervention from the court of law, the Tribunal. (para 83)
This is certainly one way at looking at the criticism of the Tribunal. It is suggesting that there is some kind of conspiracy involving an 'an unholy organised domestic and international attempt to question the judicial process of the Tribunal'. The judgement does not state who is part of that conspiracy, but perhaps the Tribunal is suggesting that it comprises - as well one assume Jamaat-e-Islami - those who have at some point written critical commentary about the Tribunal. This could of course include, Human Rights Watch, the Economist, the New York Times, Amnesty International, International Commission of Journalists, International Centre for Transitional Justice, the UK Bar Council Human Rights Committee, the UN Special Rapporteurs on Summary Execution and on Independence of Judges and Lawyers, and US Ambassador at Large, Stephen Rapp.

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.

Analysis of the contempt judgement 1: Right to initiate proceedings

This is first 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 arguments relating to locus standi - which means the right of the applicant to bring the action.