Fair comment on judicial proceedings

david bergman

by David Bergman

Although I have not written directly about the proceedings of the International Crimes Tribunal for quite some time, a High Court lawyer, Abul Kalam Azad is reported to have filed an application with the International Crimes Tribunal asking the tribunal to issue a ‘show cause’ notice relating to some of the content of this blog.

The ex parte hearing (i.e one in which I have no right to appear) on whether or not the court will issue a show cause notice against me is taking place tomorrow (thursday) morning.

The application was first reported in the Dhaka Tribune where it is stated:

A High Court lawyer has filed a petition with the International Crimes Tribunal seeking a ruling as to why a show-cause notice should not be issued against British journalist David Bergman for making “derogatory” comments about the tribunal in a blog.

HC practitioner Abul Kalam Azad filed the petition with Arunabha Chakrabarty, deputy registrar of the second war crimes tribunal, late yesterday afternoon.

I went to meet Mr Chakrabarty the registrar this afternoon, and he said that he could not give me a copy of the application as he did not have a copy having forwarded it to the judges. I asked him if he could ask the judges whether I could be given a copy, and he said that was not possible. Apparently, there is no requirement for a copy of the application to be served upon me unless the tribunal judges order it.

It is of course not possible for me to comment on the application in any details, since I have as yet not seen a copy of it.

I can only assume that the application is being made under section 11(4) of the International Crimes Tribunal. This states that:

A Tribunal may punish any person, who obstructs or abuses its process or disobeys any of its orders or directions, or does anything which tends to prejudice the case of a party before it, or tends to bring it or any of its members into hatred or contempt, or does anything which constitutes contempt of the Tribunal, with simple imprisonment which may extend to one year, or with fine which may extend to Taka five thousand, or with both. (emphasis added)

Whilst my blog does contain some critical comment of the proceedings of the tribunal, it does not contain anything which comes within section 11(4) of the 1973 Act. Any criticism contained within the blog is entirely legitimate journalistic comment.

It is important to recognise that Bangladesh’s own appellate division has clearly stated that criticism of court decisions is legitimate.

So, in the judgement and order dated 11.10.2010 delivered in the case of Riaz uddin Khan Advocate and another vs Mahamadur Rahman and others (Contempt Petition No. 12 of 2010 (unreported)), Justice Surendra Kumar Sinha stated at page 30 that:

‘A fair criticism of judicial proceedings or courts is no doubt permissible so as to enable the court to look inward into the correctness of the proceedings and the legality of the order…’

In the earlier judgement dated 10.08.2010 in the case of Raiz uddin Khan Advocate and another vs Mahamadur Rahman and others, (contempt Petition No. 05 of 2010 at page 75 (unreported)), Justice Sinha also held that:

“A fair criticism of the conduct of a Judge may not amount to contempt if it is made in good faith and in public interest.

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