Freedom of Speech

ব্লগ এখন অনেকটা পর্নোগ্রাফিতে পরিণত হয়েছে: Syed Ashraful Islam

“On the Internet 50 percent is porn material. Why should we refer to the Internet?”: Vladimir Putin

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.

It is always sad when a government with an overwhelming majority like the present Awami League government loses its way. Unfortunately, a host of recent developments all point to that direction. One theme that all these events have in common is that they represent attacks on free speech and political expression, something that should be sacrosanct in all democratic societies.

The most glaring demonstration of this trend has been evinced by the behavior of Prime Minister Sheikh Hasina, who, in her speech in the last session of Parliament, accused the members of parliament of her own parties of “arming her enemies”, by criticizing some members of her cabinet, specifically Communications Minister Syed Abul Hossain. Emboldened by this, Awami League General Secretary and LGRD Minister Syed Ashraful Islam accused the media of “creating the ground for Hasina’s death.” Of course, once the two most important leaders of the ruling party expressed their disdain of dissent in media so openly, other Awami League leaders wasted no time in springing into action. Supporters of Shipping Minister Shahjahan Khan, who has faced a lot of flak for suggesting the unqualified drivers be given long-distance driving permits, have seized bundles of newspapers, and set them to fire. A peaceful human chain organized by BNP to protest the crumbling state of infrastructure was attacked and broken up by Awami League activists. To cap it all, Hasina herself, in a cabinet meeting, instructed intelligence agencies to investigate the organizers of a peaceful rally held in the Shahid Minar on Eid Day.

Unfortunately, the government has made our judicial system an indispensable tool in its all-out war against free speech. Some of the developments are petty: like a sedition case being filed against a cleric for criticizing the government during the weekly sermon. Others are more serious, like Sheershanews editor Ekramul Haq being put in police remand (code for torture) multiple times for writing about corruption charges against certain members of the cabinet, specifically State Minister for Environment Hasan Mahmud. The use of the judiciary to achieve partisan ends only promises to heat up further after the High Court convenes on October 9th after its vacation. BNP acting Secretary General Mirza Fakhrul Islam Alamgir and Standing Committee member Moudud Ahmed have already been summoned to answer charges of contempt of court. If that goes well, the field is already being prepared to embroil Khaleda Zia in the same contempt charges.

Unfortunately, these tendencies were in full display during the passage of the Fifteenth Amendment to the Constitution of Bangladesh, which added Article 7A stating that both to “subvert the confidence, belief or reliance of the citizens to this Constitution or any of its article” or to take any action that “abets or instigates… approves, condones, supports or ratifies” this subversion is sedition, and is to be punishable by death. Just to put this matter into perspective, given that this blogpost is fairly critical of Article 7A of the Constitution, I have just committed sedition. If a reader reads this post and approves, she has also committed sedition. Moreover, if someone then forwards this link (I know, highly unlikely) to a friend by email, that’s sedition too.

We are all going to drown in a sea of sedition.

When finalizing this Amendment, Hasina said in the House that she had acted thus to ensure ““empowerment of people, and their democratic and voting rights.” Perhaps, she had in mind, the provision that said that several parts of the Constitution, including one which titled her father Sheikh Mujibur Rahman as Father of the Nation, could not be altered or amended in the future. Although, it seems like depriving future generations of the power to change the document that will affect their lives in such important ways is the express opposite of empowerment.

However, Hasina is not in good company. In the United States, home of the world’s most famous constitution, there has only been, in the country’s entire two hundred years plus history, only a single proposed amendment that sought to place any topic beyond any further debate or amendment, and it was the infamous Corwin Amendment. In this proposed amendment, in a last-ditch effort to avoid the Civil War, it was proposed that subject of slavery would not be open to any future amendments, effectively meaning that no future government could outlaw slavery. As we know, the Civil War was fought, and an alternative amendment, now known as the Thirteenth Amendment, was incorporated to outlaw slavery.

Hasina and her party love to glorify the role of Awami League in the 1971 War of Liberation. Unfortunately, it has been overwhelmingly documented by Dr. Badiul Alam Majumbad of SUJON (not a big fan of BNP), that the inspiration for this Fifteenth Amendment comes directly from the Pakistani Constitution. Around the world, there are have been two prominent laws passed in the last year that punish people for saying something. One was passed in Saudi Arabia, and it mandates jail sentences for anyone who criticizes the King of Saudi Arabia. The other was in Israel, which criminalized “calling for the boycott of Israel.”

This is not good company for Bangladesh to keep. As the current government finds itself increasingly unpopular, the risk remains that it will use these new laws to further crack down on dissent and opposing political parties. Which will be a sad ending for a government that held out so much promise.

Indeed, a very bad precedent you are creating Dear prime Minister Hasina.

It started with the arrest of an elected Dhaka City Ward Commissioner ( Councilor) Mr Chowdhury Alam.

Removal of Chowdhury Alam was very important to ruling Awami League Government’s political strategy. Mr Chowdhury Alam, as elected representative from Dhaka’s city center area, was the key field level organizer of all the city center rallies/ programs of opposition of BNP. Awami League takes opposition activities very seriously. They simply don’t want opposition to exist or act in any form. Departure of Mr. Alam came as a big debacle for opposition BNP as Mr. Alam was their key figure in it’s efforts to organize street agitation in Dhaka.

It has been nearly a year Mr. Alam went missing. Nobody accounted for his whereabouts.

In this list of missing under the current regime, Chowdhury Alam definitely was not the only name. The list became long quickly within first two years of this regime.

Last name in this list is the son of an opposition political figure. A rightwing orthodox islamic political leader and a Madrassa principle, Mr Fazlul Haque Amini had been protesting, peacefully, against the new fuggy inheritance policy of the government. A nationwide strike was organized last week and rallies are taking place on regular interval. Government’s top leadership reflected the whole issue personally on Amini. Statements made by the the prime Minister as well as other senior ministers were clear indication of the level of discomfort this government is experiencing in Handling this Amini trouble.

So not sure how to handle Amini, as any direct crackdown on Amini led madrassa based politics may be perceived as attack on political Islam by rural Bangladeshis, this prime Minister seemed to have taken the Chowdhury Alam route. Like Chowdhury Alam, the news broke as an arrest of Fazlul Haque Amini’s son Abul Hasanat by plain clothed policemen. Multiple news outlets carried this news.

And exactly like Chowdhury Alam case, since his abduction, Mr Abul Hasnath remained unaccounted for. Except for denying that he was arrested, there has not been any statement from any corner of the government regarding this incident. There has not been any visible action by law enforcement agencies to solve the problem by rescuing the abducted person. Mr. Amini, the father of the victim, has been complaining that he is regularly been threatened from the mobile phone belonging to his son. Bangladesh law enforcement agencies has the capabilities to track the phone records and locate from where the calls are made. Using this system, they solve most of the crimes these days. The silence from government quarters about the abduction, Prime Minister Hasina’s continued verbal attack on Amini ( Her last statement about Amini was that Khaleda Zia let Amini loose on the government), absolute absence of any action by law enforcement men to rescue or at least trace the abducted — should be enough evidence to suspect government’s hand behind the abduction of Amini’s son.

The government must understand that denying the abduction does not let them off the hook. It is the responsibility of the government to protect the safety of it’s citizen. A man suddenly can be whisked away in broad daylight from mains street Dhaka and Government will not have any say in it — this cannot happen in a civilized society.

Abducted and missing opposition activists and their families have been the historical hallmark of all the fascist governments in history. We don’t want to believe that our country is heading the fascist way. But the series of events, starting from Dr Yunus saga to the abduction of the son of Fazlul Haque Amini force us to fear about impending fascism.

I have very little to add to the excellent summation of the recent HC verdict posted earlier. I would like to note some additional points. In our adverserial justice system, both sides get lawyers who argue for their clients. In this verdict, there was no one representing Ziaur Rahman. Whatever the merits of this writ petition, it seems unusual to proceed when one of the main actors is not represented in the case.

Much has been made out Lawrence Lifschultz’s statement to the Court, but given that he himself admits that he is reporting information that others told him, his statement becomes hearsay, and is not admissible in a court of law. Justice Manik has warned that any criticism of Lifschultz would be considered contempt of court. As we shall see below, contempt of court is a favorite weapon of Justice Manik’s. However, this sort of extension of contempt of court by fiat, to a person who is not a judge or officer of the court, is simply ridiculous. Finally, this case is directly covered by the Fifth Amendment verdict. Under that prior decision, the legality of the Taher trial comes down to whether this trial falls under these two exceptions:

(c) all acts during that period which tend to advance or promote the
welfare of the people;
(d) all routine works done during the above period which even the
lawful government could have done.

This is all the bench had to do. Did this trial increase public welfare? Even if martial law was not in effect, would another government have tried armed mutiny against the government? Instead, Justice Manik went on a determined campaign to vilify Ziaur Rahman.

Two years ago, Justice Manik was simply another Awami League hack in a position of power. However, he has certainly stood out in the last two years. He is on record defending BKSAL. He delights in hauling individuals, mainly private citizens and mid-level government employees, in front of him and berating them in most unjudicious language. On one occasion, he told Ziaul Huq Khandkar, chairman of the SEC:

পর্যায়ে আদালত চেয়ারম্যানকে তিরস্কার করে বলে, আপনি দায়িত্ব পালনে অযোগ্য। গত এক মাস ধরে শেয়ারবাজারে যে অস্থিরতা দেখা গেছে, তার জন্য আপনার মতো লোকরাই দায়ী। আদালত শেয়ারবাজারের অস্থিরতার নেপথ্যে ষড়যন্ত্র থাকার ইঙ্গিত দিয়ে আরও বলে, যিনি বিধিবদ্ধ সংস্থা ও সরকারী সংস্থার মধ্যে পার্থক্য বোঝেন না, তিনি কী করে পরিস্থিতি সামলাবেন! এটা তো একটা কমন সেন্সের ব্যাপার। দীর্ঘ দিন অভিজ্ঞতার পরও তাঁর কমন সেন্স হয়নি।এ সময় আদালত তাকে তীব্র ভাষায় ভৎসনা করে দাঁড়িয়ে থাকার নির্দেশ দেন।

However, his choicest words were reserved for Syed Abul Maqsud:

আদালত এক পর্যায়ে বলেন, একটা লোক নিজেকে বুদ্ধিজীবী মনে করে, এটা একটা দায়িত্বজ্ঞানহীন বক্তব্য। আদালত বলেন, তিনি একটা ষড়যন্ত্রকে লালন করছেন। এ সময় সিনিয়র আইনজীবী ইউসুফ হোসেন হুমায়ুন বলেন, তিনি নিজেকে গান্ধীর অনুসারী বলে থাকেন। এ সময় আদালত বলে, কিভাবে গান্ধীর অনুসারী। তিনি একটি বুদ্ধিহীন লোক। তিনি যা লিখেছেন তা মারাত্মক। এক পর্যায়ে একজন আইনজীবী বলেন, তিনি একজন বুদ্ধিজীবী। তখন আদালত বলেন কিসের বুদ্ধিজীবী, তিনি একজন নির্বোধ। অপর এক আইনজীবী বলেন, তিনি জ্ঞানপাপী, তখন আদালত বলেন কিসের জ্ঞানপাপী, তিনি নির্বোধ। আদালত বলেন, কোর্ট সম্পর্কে আপনার কোন পরিষ্কার ধারণা নেই। আবার টেলিভিশন চ্যানেলে টক শোতে বড় বড় কথা বলেন। আদালত সম্পার্কে টিআইবির রিপোর্ট সাপোর্ট করেন। টাউট, বাটপাড়, দালাল-যারা ঘুষ নিয়েছে তাদের আদালতের অন্তর্ভুক্ত করে টিআইবি বিচার বিভাগের দুর্নীতির রিপোর্ট প্রকাশ করে। সে রিপোর্ট আপনারা সমর্থন করেন।অতিরিক্ত এটর্নি জেনারেল এম কে রহমান আদালতের কাছে আবুল মকসুদকে মার্জনা করার আবেদন জানালে আদালত তাকে সারাদিন দাঁড়িয়ে থাকার নির্দেশ দিয়ে বলেন, এ ধরনের বুদ্ধিজীবীর জন্যই দেশের আজ এ অবস্থা

Justice Manik declared the Seventh Amendment illegal, but forgot to cancel the punishment for the appellant, which was the main point of the case. However, he certainly did not forget to let the nation know that he hated, hated, hated Ziaur Rahman.

Even after such devoted Zia-bashing, Justice Manik was hurt when he was not granted seniority and the recent promotion of judges to the Appellate Division were not to his liking. He threatened to promptly go on leave, but then changed his mind.

Hopefully, the spectacle that Justice Manik is making of himself and of the judiciary will cause everyone to think more critically about the necessity of placing qualified individuals on the bench. The issue here is not political identity: all individuals can have their own political philosophy. However, when law is nakedly insubordiated to partisan ideology, the image of the judiciary as a whole, and the rule of law it is designed to implement, is irrevocably damaged.

While giving the verdict on the legality of the punishment of Colonel Taher, the high-court bench of Justices Shamsuddin Chowdhury Manik and Zakir Hossain declared that the whole trial process was illegal and it was in fact a cold blooded murder of Taher by Late president Ziaur Rahman.

What high-court did to come to this conclusion? They interviewed one shoddy journalist character Lawrence lifshultz, who is a political follower of Taher’s communist doctrine. Other interviewed are also 1. Political opponents of Ziaur Rahman’s political platform 2. Supporters of ruling party who took it as their prime job to destroy Zia’s image 3. Political followers of Colonel Taher. Even the judges who delivered the justice, are publicly known nemesis of Ziaur Rahman’s ideology and are former leaders of socialist political platform based on Taher’s doctrine. And this is probably the first court proceeding in Bangladesh history where an witness could simply deliver his opinion via e mail to a third person. There was no ‘balai’ of oath taking, cross examination etc.

Before we go further into what these two judges did and what their judgment means, lets see what Taher in fact did back in early 70s.

1. Taher revolted against the then Awami League government of Sheikh Mijibur Rahman and formed and led an armed force called ” Gonobahinee”. Thousands and thousands of Awami League activists, leaders as well as general people were killed by the armed force. Any literature describing Mujib era Bangladesh will give testimony of the atrocities of Taher’s Gonobahinee.

2. While all other sector commanders were being promoted in the army as Brigadier/ Major General and who in turn helped rebuild the army, Taher was sacked from Bangladesh army by Mujib Government. ( It is unclear what Shamsuddin Chowdhury Manik had to say about this cold blooded sacking of ‘war hero’ Taher).

3. Many sources, well informed of the political military dynamics of 1975, say that it was Taher who was more likely to kill Mujib and there was an invisible race among Taher’s group and Faruq Rashids group in who would kill Mujib first. After hearing of the massacre of 15th August, most observers’ first suspicion was on Taher.

4. Taking the advantage of unstable situation of Bangladesh, Taher’s forces ( a select group of armed anti state forces including Taher’s brother Bahar) attacked Indian High Commission in Dhaka in an attempt to kill India’s high commissioner in Dhaka, Mr Samar Sen. Although Samar Sen survived with bullet wounds in his back, Police force guarding India’s high Commission shot and killed four members of Taher forces ( Including Taher brother Bahar).


The value of Bangladesh Supreme Court apparently took a big plunge under it’s new leader Justice Khairul Haque.

Few months ago, the market rate of the honor of Bangladesh Supreme Court was 100,000 taka and six months jail sentence. That was under the leadership of former Chief Justice Fazlul Karim.The full bench of the court decided that rate when they sentenced newspaper editor Mahmudur Rahman for a report what they thought was truthful yet contemptuous of court.

So it was a matter of huge public curiosity when the same editor Mahmudur Rahman was brought back to the highest court for a second contempt of court case against him. And again the three men ( two men short this time, as two seniormost judges are not working out of ‘oviman’ as they were superseded by JusticeKhairul haque to be Chief Justice) found editor Mahmudur Rahman guilty of contempt of court.

However there was a difference in sentencing. Justice Khairul Haque led court  only sentenced editor Mahmudur Rahman a fine of 100 taka and no jail term. A major plunge from 100,000 taka and six months jail fixed by previous court.

Well, this is only the first month of Justice Khairul Haque’s Supreme Court. Let’s see what comes next. From 100,000 to 100 taka in a month. Then what?

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