In the Middle of Nowhere

In a few days, the International Crimes Tribunal will hold a hearing to decide whether an article written by David Bergman is in contempt of court. The editor and publisher of  his employer, New Age, have also been made co-respondents to this order. It would be instructive to take a look at how Bergman has arrived at this situation, and why the Tribunal is devoting its precious time in deciding such ancilliary matter.

Bergman’s reporting, ever since this Tribunal was set up has been invaluable, for two reasons. He has provided a somewhat unbiased voice, reporting the details of the legal proceedings without the ideological goggles that hobble so many of our other reporters. Moreover, he has had at least some interaction with foreign judiciaries, and has been able to effectively compare and contrast the Tribunal against its international counterparts.

We should note, at the outset, that Bergman is British, which means that he has had some experience operating under draconian press laws. This has generally stood him in good stead. A lesser individual, perhaps an American, would have been reduced to hysterics and babbling incoherently about freedom of speech by now.

Last April, Bergman wrote a largely positive piece about the Tribunal. However, the Tribunal picked out two phrases used in the article, and took issue. One was “the tribunal showed itself to have lost its backbone” and the other was “return to being the rubberstamp?” What followed, in the Tribunal’s next proceeding, is best described in Bergman’s own words:

Judge AKM Zahir Ahmed then spoke. He said that an article had come to his attention, ‘International Criminal Tribunal: Growing Independence or a Return to be being a rubber stamp’ which was in part ‘contemptuous’. He said,’Journalists are allowed to express their views’ but cant be in contempt of court.

He then referred to various expressions that were used,’Who is he to say what does or does not have a backbone?’

…

Justice ATM Fazle Kabir then spoke, and asked whether ‘David Bergman was present in court.’ I put my hand up and he then asked me to stand up. He then said, ‘We have gone through this report. Your manner of reporting is very nice, no doubt … We know that you are of foreign origin and so we are warning you about your language.’

He then said that there were two words that were ‘very much contemptuous.’ He then referred to the use of the word, ‘Rubber stamp’. ‘We are very sorry about this but you can not use this words about our court. If you use these words in future then we will take action. According to the rules of this court in Bangladesh these words are absolutely contemptuous. In recognition of the fact that you are a foreigner, we will not take action against you.’

Yikes. Called out in open court. Not a fun experience.

However, it’s hard to see why hoping a court does not become a rubber stamp for the prosecution should be contempuous; here’s the same term being used regarding the Foreign Intelligence Surveillance Court, one of the US Government’s most sensitive organs, a justice of the United States Supreme Court, and by Julian Assange regarding the British Court ruling that allows his extradition to Sweden. Does that mean that the courts of United States and United Kingdom are less deserving of our respect? Or that they have a greater tolerance for criticism?

What about the Tribunal’s objection to being relegated with the fruit fly and spiders? If that is contempuous, what should we make of thisclaim by Steve Forbes, publisher of Forbes Magazine and a Republican presidential candidate in 1996, that “the United States Supreme Court has the backbone of an eclair?” Should the United States Supreme Court take lessons from the Tribunal in comport and dignity? Or am I guilty of comparing eclairs and chomchoms here?

Well, following this little showdown, Bergman managed to stay out of trouble for almost six months. Until, that is, the Tribunal got down to its actual business and took cognizance of the charges against (a fancy way of saying indicted) Delwar Hossain Saydee. Bergman again wrote a rather milquetoast article: reviewing the proceedings so far, and mapping out the road ahead.

Again, the Tribunal confused Bergman’s expression of some people’s fears about the Tribunal as Bergman’s own opinion, and whipped out its contempt of court order. Looking back, it’s only surprising that the Tribunal restrained itself for so long. Ever since then-Justice Khairul Huq used contempt of court to accomplish what Prime Minister Sheikh Hasina could not, this particular mean of stifling dissent is extremely popular with Bangladesh’s higher judiciary. In short, the feeling is “all the cool benches are doing it, why shouldn’t we?”

The contempt order was passed down on October 3. Bergman and New Age management submitted its replies on October 27, arguing that its report in contempt of court. The Tribunal will hear oral arguments and pass its order some time in the coming week.

In all likelihood, Bergman will get away with only a verbal warning, and maybe a token monetary fine. As noted, the Tribunal is entering a crucial phase here, and it will be unwise to distract attention from its legal work by handing down an unnecessarily harsh measure, especially on such a well-regarded individual. In the off-chance that the Tribunal does impose a more punitive penalty, it will be making its own functioning decidedly more complicated, and add to the miasma of controversies that is already swirling around it.

The case is regarding Mohiuddin Khan Alamgir’s election to Parliament in the last parliamentary election. He is being represented by Barrister Rokonuddin Mahmud. Under a law enacted during the last military-caretaker government, a convicted person could not contest in the election, which Barrister Mahmud is trying to evade. This following exchange takes place between him and the judges hearing the case:

Court: What if we declared the entire military-caretaker government illegal?

Mahmud: (with some concern) That would make the last general election illegal as well.

Court: So what? It would give a nice jolt like the Fifth Amendment verdict.

Mahmud: We don’t want that, and we won’t be making that argument.

The Fifth Amendment verdict, along with the ones handed down by Chief Justice Khairul Huq, including the one cancelling the caretaker system (which has still not been written), did give Bangladesh quite a jolt. Who are the members of the bench wanting to make things even more exciting for our countrymen? The senior member is Justice Shamshuddin Chowdhury Manik, last seen throwing a tantrum in a Biman airplane and threatening to convene a court right there and then unless he was upgraded to Business Class despite having only a Economy Class ticket. The junior member is Justice Jahangir Hossain, who is a nephew of Zillur Rahman, the President of Bangladesh, and earlier used that piece of serendipity to grab the plum posting of Dhaka District Judge, superseding about two hundred judges with more experience. The normally supportive Mizanur Rahman Khan wrote a scathing article in Prothom Alo about Hossain’s shenanigans, which was titled: “The Judicial System is Collapsing.” Not that any of it mattered, Jahangir Hossain was duly elevated to the High Court, probably as Manik’s perfect foil.

Let us turn to another court appearance a few days before that. Three individuals who were accused in the sensational Lokman Hossain murder case, including the brother of the Rajiuddin Ahmed Raju, the current Telecommunications Minister, appear in front of another High Court bench, composed of Justices Syed Mohammed Dastagir Hossain and Gobindra Chandra Thakur. This following dialogue ensues, with Advocate Anisul Huq representing the defendants:

Court: It is an exception to see such a popular mayor being assassinated like this. Will our country run out of good men soon?

Huq: We wouldn’t have come to you, but the situation is bad. Please give us bail for thirty days.

…

Court: We have tried, but we cannot grant you bail. Our conscience will not allow it.

Where to begin here? First off, do Bangladesh’s judges remember their roles, or do they think that they are the heroes in some Bollywood movie? For the crime of murder, it does not matter if the victim is an elected official, or a popular leader, or an unknown person no one has heard of and no one mourns. The standard is the same, if that standard is met, then the defendants automatically get bail, otherwise not. And where does the judge’s conscience come into all this? In many areas of law, there is a considerable role for ambiguity and discretion. But obtaining a bail is not one of them. There is a straight-forward standard, and a person either deserves bail or does not. And none deserves to see play-acting in our highest courts.

A country can probably have stability if its generals don’t know how to make war, its scientists cannot innovate, or its bankers spend their days in profligate behavior. It cannot have stability if its jurists don’t understand law. Bangladesh’s immediate past Chief Justice Khairul Huq quoted salus republicae est suprema lex – the safety of the state is the highest law – in handing down two of his most controversial decisions, even though nothing could be further from the truth. The safety of the state may be ensured if political opponents are arrested and tortured, or if political dissidents are kidnapped and killed,  but the law can never countenance such. Bangladesh may get the leaders we deserve, but its people deserve better judges than these.

When President Ziaur Rahman was killed, he was only 45. But within this short life span he contributed enormously to Bangladesh. His catalytic role in initiating the mass revolt among Bengali members of the armed-forces after the brutal military crackdown of 25th March 1971, and his contribution as a military leader of Bangladesh’s war of independence distinguishes him as one of our top national heroes. Zia’s post independence role in building modern Bangladesh brick-by-brick by revamping all sectors starting from mutiny-ridden ‘broken-chain-of-command’ military, to her global image, to initiation of open-market-economy, are enough to immortalize him.
Yet, Ziaur Rahman’s lasting legacy will be his contribution to give the people of Bangladesh an identity — ‘Bangladeshi’ — that is inclusive of all the races, ethnic groups and religions. This identity emanates from Zia’s political philosophy of Bangladeshi nationalism, which was embraced very enthusiastically by an overwhelming majority of Bangladeshis. The political philosophy of ‘Bangladeshi Nationalism’ was expressed as his forward looking, conciliatory, inclusive and tolerant modus-operandi of nation building.
In an orientation session for the newly-elected BNP members of the 2nd Parliament, Zia explained Bangladeshi nationalism the following way,

“Now the question is, what is nationalism? If we study history of the world, we will see rise of different sorts of nationalism at different times and places. In this regard, first comes ‘racial’ or ethnic identity based nationalism. Arab or German nationalisms are prime examples of this kind of nationalism. German nationalism is based on Arian race. Hitler might not have talked about German nationalism if after World War I; parts of Germany were not occupied and shared by states like Britain, France and Poland. This act prompted Hitler to promote race based German nationalism. And we all know of Arab nationalism. … The late president of Egypt, Mr. Jamal Abdul Nasser was able to give a significant shape to Arab nationalism. Arab nationalism still exists and stands tall proudly with all other races in the world.
Next comes language-based nationalism. The slogan of Bengali nationalism is built on this philosophy. And for this reason, Awami League still dreams of establishing Bengali nationalism.
And then Muslim League, IDL and the Jamaatis talk about religion based nationalism. At the beginning of this century, Jamal Uddin Afghani preached Pan Islamic nationalism; the spirit of religion-based nationalism originates from that pan-Islamism. To be frank, since inception of Pakistan, Bangladesh was exploited and ruled in the name of this religion-based nationalism. But the ‘politics of exploitation‘ in the name of Islamic Nationalism could not keep Pakistan intact. Independent-sovereign Bangladesh was born.
Politics can be based on regional identity also, thus creating a new regional nationalism. In this regard we can mention the name of EEC (European Economic Commission). EEC has her own parliament i.e. the European Parliament. Many EEC countries are not even connected via land, yet they were able to bring forth new spirit and new idea of cooperation among themselves. They are collectively trying to give themselves a distinct identity as Europeans. Broadly one can assume that they are moving towards a new nationalistic identity.
War can be the base of nationalism too. But that is not a ‘compulsory’ or essential pre-requisite of nationalism.
Bangladeshi nationalism is based on all of the above components of nationalism…. We have ethnic heritage, a rich language and religious tradition. We all live in a single important geographic location. We have the dream of building a new economic order. And the blood-drenched spirit of our war of independence motivates us all. Presence of so many nationalistic elements is unprecedented in one nation’s identity.
When people say that Bangladeshi nationalism is not embracing religion, they are wrong. Religious identity and fidelity to faith is a great and historic trait of Bangladeshi nation. It has been mentioned in the Holy Quran that ” La Iqra Fidweene“, ‘religion should not be forcefully imposed’. Hence Bangladeshi nationalism is neither religion based nor religion averse. This nationalism ensures each and everyone’s faith and religious rights. And Bangladeshi nationalism is also not a purely language based nationalism. …
The philosophy of Bangladeshi Nationalism has ‘absorption power‘ and ‘elbow room.” [Translated into English from original Bangla speech by the author.]

Zia responded to the call of Bangbandhu to take up arms and lead the fight for Bangalee nationalism. But in an independent Bangladesh, he understood the need for an inclusive nationalistic identity for people of erstwhile East Bengal / East Pakistan who are predominantly religious Muslims Bangalees but very tolerant and accommodating to the rights of non-Muslims and or non-Bangalee ethnic groups.

Even today, over 30 years after his death, changes in Bangladesh constitutional framework initiated by Zia has been the basis of governance in Bangladesh. Zia re-introduced multi party democracy and press freedom back to Bangladesh. Thanks to some activist judges and an overwhelming parliamentary majority of currently ruling Awami League, a big push is being made to remove Ziaur Rahman initiated changes in the constitution of Bangladesh. Despite all the vicious attacks on late President Ziaur Rahman from the highest levels of the government, Zia introduced constitutional changes enjoy enormous public support and it is very likely that practically most of his changes will remain in the constitution. This is the ultimate success of Ziaur Rahman’s political philosophy, Bangladeshi nationalism.

Three broad trends significant in this election:

Media Activism: A large section of Bangladeshi media played an extremely enthusiastic part in boosting Selina Hayat Ivy, trashing Shamim Osman, and completely ignoring BNP candidiate Taimur Alam Khandqar. We heard over and over, that Ivy was a successful mayor in her last stint. What were the indications of her success? By how much did corporation tax revenues increase? How many schools and colleges did she build? How many bridges and culverts were constructed during her tenure? We don’t know, because the media didn’t tell us. Instead, they repeated non-stop that Ivy was a “clean” candidate. What that clean means, or will mean in the future, no one knows.

Similarly, Shamim Osman probably got the most intensive media lynching in Bangladeshi media history after Tarique Rahman in 2005 – 2008. Conspicuously absent from the litany of accusations against him was the fact that he committed the most blatant act of political terrorism in Bangladesh’s last 20 years. In 1998, when BNP arranged a road march to Chittagong to protest the peace treaty, it was Shamim Osman who led the attack on Khaldea Zia’s motorcade, and forced her to change her route to Chittagong. It was an event that shocked the nation and dominated media coverage at that time. Yet, this time around, this very significant event was almost absent from the media coverage.

In the same vein, all  the media said about Tamur was that he is a former chairman of BTRC and the past Caretaker Government filed 5 corruption cases against him. What were his successes or failures as BTRC chairman? What is the status of those corruption cases? Are they more or less serious than the ones filed against our current Prime Minister, Leader of the Opposition, and so on? We don’t know, because the media didn’t bother to tell us.

Army Deployment and BNP: Sheikh Hasina chose an extremely insidious way to remove army protection from the elections. The media coverage of this election was extensive and hysterial for the last few days before the election. Thus, the Election Commission’s request for army was granted. Only, when the time came for the army to deploy, they never showed up.

When BNP then decided to boycott the election, it made things very simple for Ivy. The vote in this election was always going to divided into pro and anti Shamim Osman. With Taimur not participating, the anti-Shamim vote would, instead of being split up, go to just one candidate, Ivy. Even though everyone is going on about how exemplary this election was, there were plenty of indications of irregularity during election day, including Ivy complaining that half of her polling agents did not show up because of threats, and Shamim Osman openly assaulting a Chatra League leader. However, what changed was that while these measures may have been enough to tilt the balance in a three-way race where the anti-Shamim vote would be fragmented, it proved inconsequential in a two-way race.

Decentralization of power: Just two days after Ivy’s election, Lokman Hossain, the mayor of Narsingdi, was assassinated. Lokman Hossain was twice-elected the best mayor in Bangladesh. His assassination, from where it was committed to the modus operandi of the killers, all bear the trademarks of a political hit. A three-day hartal has already been called against the killing. Remarkably, Telecommunications Minister Rajiuddin Ahmed Raju is already mentioned as being involved in this matter.

Bangladesh is slowly undergoing a painful decentralization where young and ambitious mayors are building their own power base and challenging the more senior leaders in their parties. They are using their positions as mayor and chairman to build patronage networks, increase name recognition, and show the people of their area that they can deliver services and infrastructure projects. The ossification of student politics since the ’90s has temporarily stopped the inflow of student leaders into politics, and created a vacuum which is being exploited by businessmen and retired governemnt officials. However, in the end, it is this generation of local government leaders who will make the transition to, and ultimately run, national politics.