New Age article contemptuous, says ICT

But acquits the article's writer, the daily's publisher and editor with a strongly worded caution Updates with quotes
Published : 18 Feb 2012, 11:58 PM
Updated : 18 Feb 2012, 11:58 PM
Dhaka, Feb 19 ( — The war crimes tribunal on Sunday acquitted two New Age editors and their publisher although it found an Oct 2 article contemptuous.
The court also issued a 'serious caution' to English-language daily's editor Nurul Kabir and its special reports editor David Bergman. The publisher, ASM Shahidullah Khan was exonerated as he was abroad on Oct 2 when Bergman's article was published.
The International Crimes Tribunal, set up to try crimes against humanity, disposing of its first contempt case said its reluctance to initiate proceedings against the accused should not be seen as a sign of weakness.
Tribunal chairman, Justice Nizamul Huq said the tribunal chose this path because it wanted cooperation from the society at large.
The proceedings were held up for about 10 minutes as the New Age editor Nurul Kabir was stuck in jam.
Justice Huq asked the defence counsel Mustafizur Rahman Khan of Kabir's whereabouts, "Mr Khan, where is opposite party number two?"
After Khan, who represented Bergman and Shahidullah Khan, told the justice that the editor was 'close by', the judge said, "You cannot take this so casually."
Noting that the order had to be read out in presence of the accused, the judges sat waiting as the publisher hurried out to make queries.
Nizamul Huq welcomed the New Age editor as he entered the courtroom with the customary bow, "At last he is present."
The tribunal chief's warm smile, however, had little indication of the strong words that were soon to follow.
The tribunal chief began his order noting the four paragraphs of the article "A crucial period for International Crimes Tribunal" published in New Age on Oct 2, for which he had sought explanations.
Bergman wrote, "To many in Bangladesh the guilt of Sayedee and the other detained men are foregone conclusions; tribunal hearings about cognisance and charge framing are simply procedural obstacles on a legal conveyor belt that will inexorably take Sayedee and the others towards their rightful convictions."
The second paragraph that the court had found problematic reads, "The accused are, to many people, already proved to be guilty with the tribunal simply acting as a mechanism to give their 'guilt' a judicial stamp."
After noting the professional background of all three defendants, Huq moved on to the crux of the matter.
He accepted Bergman's explanation that the first two paragraphs reflected the sentiments of a majority of the people of Bangladesh with much reluctance and thus was willing to accept that this was "fair comment" but only just.
However, the court's opinion regarding the second two paragraphs was markedly different.
In his article published a day before Sayedee was indicted, the only one indictment so far at the war crimes tribunal, the New Age special reports editor wrote, "First, the tribunal seems to have taken cognisance for many of these twenty offences on the basis of looking at just one witness statement. It is difficult to see, unless the statements were extremely strong, how the tribunal could come to the conclusion that there is 'prima facie' evidence for the commission of an alleged 'crime against humanity' which took place forty years ago just on the basis of one witness statement."
And finally fourth paragraph that comes further down in Bergman's article that the judges found most "unwarranted" reads, "Moreover, there is a separate issue about whether the tribunal even had, in its hand, all the witness statements when it took cognisance."
Nizamul Huq's voice grew audibly louder as he read out the court's observations regarding the last two paras and proceeded to provide the court's explanations.
The order said, while it is true that the defence had only submitted a portion of the testimonies in writing, the judges could examine them from the DVD's that had also been provided.
Huq noted that taking cognisance of offences was a mental exercise of the judges which only indicated that the court had taken judicial notice of the matter while nothing has been proven or refuted.
The tribunal chairman said the article raised a serious question, about the number of witness testimonies, without substantiating its claim anywhere else in the same write-up.
As regards the last paragraph the court had found contentious, the order said, "It questions the honesty of the judges."
The paragraph suggests that the judges had actually taken an action without going through the necessary exercise. Huq noted that such a serious allegation was made without any substantiation in the report.
Thus, he raised serious questions about the tribunal's objectivity among the people. Such comments, the order indicated, did indeed tarnish the court's image and thus by no means fell within the realm of 'fair criticism' as contended by the defence.
Then, referring to the defence argument that the article fell squarely under ambit of 'fair comment', Huq said the tribunal was astonished to see an allegation. "If this fair comment then what else can be unfair?"
Taking into consideration the context and other details surrounding the report, and background of the respondents, the tribunal chairman said, "We have no hesitation in finding that the article is contemptuous."
However, as regards initiating proceedings against the respondents the court noted the background of the respondents and made some observations. Regarding David Bergman, the court noted that he had a degree in politics and law and had been a long time journalist. His previous records as a journalist were also well noted.
However, given his background and knowledge, the court questioned Bergman's journalistic standards noting that he had previously written "wrong reports and had even been cautioned once".
But Huq said the court understood his agony for fair trial and said that the court thought "the ends of justice would be met if he is given a serious caution and exonerated."
As regards Nurul Kabir, the court mentioned twice that the New Age editor did not have knowledge of law. This observation appeared to have stemmed from Kabir's voluminous reply, a large part of which, the court said did not have any relevance with the case and was thus not even considered.
Huq said despite his lack of knowledge in international law, the newspaper editor, also a non-practising lawyer, did not engage an attorney but stood before the court in person.
Given his submissions, the court observed that the journalist, noted for his outspoken stance at television talk-shows, did not even express any regret, which only indicated that he was sure there was no contempt in the article. At this point the order noted that the editor also gave way to "hot sentiments" which should be avoided.
Huq said in his order, that the court had still decided to show Nurul Kabir its magnanimity and exonerate him.
As regards Shahidullah Khan, the publisher, the court noted his background and long association with the forces and movements that had in fact led to the establishment of the tribunal itself. Further, the court said that since he was not even present on the day the article was published, he was exonerated.
This move, however, should not be taken as a weakness, Huq warned in the conclusion of his order. He said the tribunal sought the cooperation of the media and the society at large.
Tribunal member, Judge A K M Zaheer Ahmed added another line, which said that news items on legal matters should consider the general understanding of laws.
The court then moved on to hearing formal charges against Jamaat-e-Islami assistant secretary general, Abdul Quader Molla, which was adjourned to March 4.
This was followed by resumption of hearing formal charges against Jamaat guru and former chief Ghulam Azam.
Toufique Imrose Khalidi
Editor-in-Chief and Publisher