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Home > General > Bangladesh: Contempt versus freedom of expression | Syeed Ahamed

Bangladesh: Contempt versus freedom of expression | Syeed Ahamed

9 May 2014

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Dhaka Tribune, May 8, 2014

If we now expect the tribunal to prosecute every time someone makes a comment on the internet, it will fail to undertake its primary task

Recently, the International Crimes Tribunal-2 has started contempt of court proceedings against David Bergman for posting some comments in his personal blog. The tribunal, in its order, stated that those blog posts have the potential effect of undermining public confidence in the administration of justice. Hence he was directed to show cause as to why he should not be “punished” for posting criticism in his personal blog.

David Bergman and I have had a longstanding disagreement on issues related to the war crimes trials and the Shahbagh movement. I have argued against him in social and mass media, including in the very newspaper he works. I also find Bergman’s argument in those particular blog posts, for which has been charged, unfounded.

Having an academic debate over the “3 million” number of the 1971 genocide is one thing, but it was ridiculous to expect that the tribunal will have to prove that particular number. The convicts were accused of taking part in “genocide” – a targeted killing that was proven even by Pakistan’s Hamoodur Rahman Commission Report. No genocide trial ever had to prove a particular number since genocide is genocide, irrespective of the number of people killed. Hence I find his argument too trivial to even merit the tribunal’s attention.

But more importantly, I think prosecuting someone for a couple of personal blog posts will not only jeopardise the tribunal’s righteous intentions, it will have irreversible negative consequences for people’s freedom of expression.

Our constitutional safeguard for freedom of expression is not as explicit as the First Amendment of the US Constitution that prohibits the making of any law abridging such freedom. Hence, we could not stop the AL and BNP from turning the Information Communications and Technology Act into a draconian law that considers online writing more of a punishable offence than many heinous crimes under Bangladesh’s Penal Code.

Writing online now can become a non-bailable and “cognisable” offense under Section 57 of this law. So a police officer can arrest anyone without a court’s permission for writing anything online that the officer or some other person “may” find offensive.

People are also constantly facing beheading-threats from fundamentalists just for being “bloggers.” While those who publicly make these threats remain free, arrests are being made for merely “liking” a post or commenting on the internet. At a time such as this, punishing someone for online writing will further restrict our freedom of expression.

Nevertheless, the tribunal’s intention to protect “public confidence in the administration of justice” is commendable. The Latin maxim nemo iudex in suacausa – no man should be a judge in his own case – is regularly invoked in court cases to uphold such public confidence. But this does not happen in contempt of court cases, and the tribunal can be the judge, jury, and executioner on its own cause. It is thus essential for the tribunal to ensure that the contempt power is exercised with appropriate protections.

This war crimes trial is associated with four decades of emotions, grief, and political struggles. So criticisms aiming the limitations and verdicts of the tribunal come from various sides, which include both the supporters and opponents of the war criminals’ trials. Criticisms also took various manifestations—from constructive criticisms to widespread criminal acts of vandalism.

The Shahbagh movement itself was seen as a grand display of public criticism against the limitations of the tribunal. How did our jurisprudence react to that criticism? Not with contempt of court cases, that’s for sure. Rather, it took into account the criticism and amended the law to equalise the tribunal’s appeal process.

When we saw it as our right to join thousands of people at Shahbagh to criticise the limitations of the tribunal, we cannot deny others’ the right to write in their personal blogs about the same tribunal.

Despite four decades of injustice and triumph of war criminals, Bangladesh chose to have a proper trial, not victor’s justice. Now the tribunal can achieve its righteous intention of protecting public confidence in it by ensuring that justice is not delayed any further. As English Chief Justice Lord Hewart once said, it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.

The tribunal is already suffering from scarce time and resources. People are already getting impatient at it slow pace. If we now expect the tribunal to prosecute every time someone makes a comment on the internet, it will fail to undertake its primary task. Instead, we will end up jeopardising the very freedom of expression that this nation so eagerly fought for.

That’s the biggest contempt we all should avoid.
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The above article from Dhaka Tribune is reproduced here for educational and non commercial use