Following an unprecedented order of the International Crimes Tribunal 2, Dhaka-based foreign journalist David Bergman was imprisoned in the courtroom until its rising yesterday as the three-member tribunal found him guilty of contempt of court.
British citizen Bergman had to serve a part of punishment for around 10 minutes as the court raised shortly after pronouncing its order.
He has been writing for the past years in his personal blog and some Bangladeshi and foreign media mainly about the ongoing trial of people responsible for crimes against humanity committed during the 1971 Liberation War.
Apart from the imprisonment in line with the International Crimes (Tribunals) Act 1973, the tribunal also fined Bergman Tk5,000 as part of the punishment.
The contemnor shall deposit the fine through an invoice within seven working days from yesterday; in default, he shall be liable to undergo simple imprisonment for a period of seven days, Justice Obaidul Hassan, chairman of the tribunal, said in the order.
Bergman was convicted in the contempt case originated from an application of a lawyer filed in February this year alleging that he had circulated “derogatory criticisms and remarks about the tribunal” through his three articles – one published in 2011 while the two others in January last year in his personal blog.
The tribunal found Bergman guilty of contempt of court for making derogatory remarks in two of the three articles. In the other article, the tribunal did not convict him but condemned and warned for his writing where he had criticised the death figure in 1971.
The tribunal, also comprising Justice Md Mozibur Rahman Miah and Justice Md Shahinur Islam as its members, in the unanimous order said: “...in the name of exercising right to freedom of expression, he [Bergman] has crossed the limits of his professional ethics.”
The contemnor “has rather acted as a mere ‘mouthpiece’ of the quarters engaged in the act of organised undesirable campaign, by circulating unfair, unreasonable and scandalising ‘criticism’.”
The tribunal said: “We are surprised indeed how and on what basis David Bergman, the contemnor, who is a foreign national, has been working in Bangladesh carrying such perverse mind set towards our ‘war of liberation’ and the trial process being held in the tribunals.
“It is not yet clear to us. However, we are not concerned with this matter. Let the government authorities concerned scan the matter lawfully.”
During the pronouncement of the order, the tribunal chairman asked Bergman to stand up in the court room where he was sitting beside his Bangladeshi wife barrister Sara Hossain, a prominent human rights campaigner and daughter of noted lawyer and politician Dr Kamal Hossain.
Just after the pronouncement of the order around noon, Bergman sat on the bench again and spent about 10 minutes, until rising of the court, talking with his wife.
Supreme Court lawyer Abul Kalam Azad filed an application and brought the matter to the notice of the tribunal with a prayer of initiating contempt proceeding against Bergman.
The tile of the first article published in November 2011 was “Sayedee indictment: 1971 deaths,” which questioned the death figure during the nine-month-long Liberation War.
The title of the second and third articles posted in his blog in January last year – for which Bergman has been punished – were “Azad Judgment Analysis 1: In absentia trials and defence inadequacy” and “Azad Judgment Analysis 2: Tribunal assumptions.”
Following the application, the tribunal in February directed Bergman to explain his position on the criticisms he had made. In the written explanation, Bergman tried to justify his conduct and accuracy of his comments.
“No remorse even to minimum extent he has shown in his explanation. Plainly it is to say, David Bergman intended to contest the matter,” the order said. Hearing both the parties, the tribunal initiated contempt proceedings against him in April. After hearing of the case, the order came yesterday.
Officials of the US and the Netherlands embassies and the British High Commission in Dhaka came to observe the deliberation of the order in the contempt of court case against Bergman.
The tribunal in its order said: “We are of unanimous view that the contemnor is found guilty and responsible for making the offending scandalous comments using derogatory and unfair ‘words’ and ‘phrases’ in second and third article that tended to attack and lowering the authority and majesty of the Tribunal for which the contemnor deserves punishment.”
Bergman, his wife and lawyer naturally expressed disappointment over the order. On the other hand, some persecution lawyers dealing with the war crimes cases said the judges had taken lenient view awarding punishment to Bergman and gave him symbolic imprisonment even though the law gave them the authority for awarding tougher punishment.
According to the provisions of the ICT Act, Bergman cannot appeal against the order of the tribunal.
In the order, the judges said earlier the tribunal 1 had issued serious caution to Bergman despite expressing regret as it was considered “regret” not in clear terms.
“But in the proceeding before us [tribunal 2], the contemnor simply casually and mechanically regretted the subsequently deleted scurrilous ‘words’ and ‘phrases’ he admittedly used in his criticisms that tended to scandalise the judicial process and authority of the tribunal,” said the order.
“He also begged ‘excuse’ for the scandalous comment made on observation of the tribunal on ‘death figure in 1971’ issue in the third article. But the contemnor has made it in most egotistical manner taking which into consideration we are not prompted to extend any degree of leniency.”
The judges said: “We, therefore, cannot take a compassionate or indulgent view of the matter, merely treating the criticism by the contemnor to have been made in exercise of right to freedom of expression.”
Bergman’s “deliberate attempt to scandalise the court” tended not only to “shake the confidence of the public and the nation as well in the system but also tended to cause detriments too to the objective of the Act of 1973 and the trial process,” the court said.
It observed that this “ill and malicious attempt” tended to “obstruct the administration of justice.”
The tribunal explained about refraining from giving any punishment to Bergman for his article questioning the death figure in 1971.
“Mere criticism made on the issue of ‘death figure in 1971’ though does not constitute any contempt, it was in no way in the ‘public [interest] and the attempt on part of the contemnor was not in ‘good faith’.”
Regarding the article titled “Sayedee indictment: 1971 deaths,” the tribunal said: “We have condemned such malicious and prejudicial act and have warned the contemnor not to repeat such criticism on historically settled issue in future.”
Bergman “made this issue controversial when all the cases were pending before the tribunals.”
The tribunal added: “It is true that David Bergman did not opt to make any opinion of his own on this issue in his article. He, as it appears, attempted to portray various conflicting information, citing sources, in respect of ‘death figure in 1971’ that creates a grave confusion on a subjudice issue.
“Despite all the differing information, it is now settled to the nation that three million people laid their lives for the cause of our independence.”
The tribunal said: “It is well settled that a person is not debarred in initiating a discussion on a matter which may fairly be regarded as one of ‘public interest,’ by reason merely of the fact that the matter in question becomes the subject of litigation.”
But in Bergman’s case, the tribunal said: “The criticism made on ‘death figure in 1971’ does not seem to have been made as one of ‘public interest.’ Rather it has shaken and demeaned the emotion of the nation.”
The judges said: “We appreciate his efforts [working on the war crimes]. But why did he not prefer to initiate any research of his own on this issue earlier by citing the said sources? Why did he not mention the issue in the documentary he contributed to get it prepared?” the tribunal questioned. “Why he decide to raise this sensitive issue, particularly when all the cases remained pending before the tribunals?”
The order said: “The issue of ‘death figure in 1971’ involves highest sacrosanct emotion of the nation. What was his intention in opening the door of criticism on such a perceptive issue? And what he intend to let the tribunals learn from his criticism?”
Citing the perspective of the trial initiated after four decades, the court mentioned that since the inception of the tribunal, all quarters have been observing, with anguish, the initiation of an “unholy organised domestic and international attempt” to question the judicial process of the tribunal, a court of law of an independent country, terming the “Statute of 1973 flawed.”
The tribunal observed that the criticisms “simply endorsed such ‘organised’ ill and futile endeavour and not in the ‘interest of the public’...Such malicious attempt has not made any debarring situation for the nation to remain distanced from their urge of seeking justice, true.”
It said: “But it, however, might have intended to create mystification and extreme derogatory impression in the mind of public and the relief seekers. Thus, the contemnor’s conduct does not go with the ‘public good’. We consider it an extraordinary situation which warrants intervention from the court of law, the tribunal.”
The order said Bergman’s comments did not appear to have been done “reasonably” and in “good faith” and for any genuine purpose in the “public interest.”
It said: “Rather it suffers from lack of fair intention and public interest.” The criticisms “should not be guarded by the right to freedom of speech as it relates to a sensitive issue.”
Observation on his tendency
Apart from the three articles, the tribunal in its order mentioned about another article of Bergman published in a foreign magazine in 2012 to assess the purpose of the British journalist’s attitude towards Bangladesh’s Liberation War.
The article titled “ICT: can one-sided trials be fair?” was published in International Justice Tribune, an independent fortnightly magazine on international criminal justice, on February 29, 2012.
“The tribunal in Dhaka deals with events from March to December 1971, when the Pakistan military used force to try to prevent the Awami League, whose supporters were Bangalees living in East Pakistan [today’s Bangladesh], from coming to power after winning the 1970 elections. The war between the Pakistan Army and the Awami League supporters and others ended when the Indian Army intervened on behalf of the Bangalee freedom fighters,” the tribunal quoted from the article.
It said: “With the ‘title’ of the article, David Bergman intended to term the ‘trial processes’ of the tribunals ‘one-sided trials.’
“The article...visibly reflects his tendency that imbued him continuing in making disparaging criticism on tribunal and its judicial process.”
Distorting settled history, by providing a “perverse view lends assurance as to his mindset which is compatible to the ‘malicious intent’ he has shown even in making the alleged criticism in the three articles,” the tribunal observed adding that such view had “demeaned” the nation’s pride.
“David Bergman has shown patent disrespect to our proclamation of independence by uttering that ‘the Pakistan military used force to try to prevent the Awami League from coming to power.’”
The tribunal said during the war, the entire population of Bangladesh was the sufferers and three million of civilian population killed. “This settled history once again has been acknowledged by the Apex Court.
“But David Bergman has indeed gone too far by spreading his unfounded, distorted view that is slanderous to the glorious history of our Liberation War. Is he ignorant of the history of our independence? Or does he deliberately intend to taint our pride we achieved through the bloody war of liberation?”
The tribunal termed Bergman’s view “inevitably proves his unholy and purposeful tendency and mindset to demean and malign” not only the trial process in the tribunal but also the “magnificent” Liberation War.
“It was the Bengali nation who fought for their independence and self determination. Nobody living in the land of our motherland Bangladesh should have license to disrespect the sacrifice the nation paid in achieving independent Bangladesh, by expressing such unfounded, purposeful and prejudicial view,” the three-member tribunal said in its unanimous order.
“His criticism as a whole cannot be termed free from ‘partisan spirit or tactics’ and it does never go with the ‘national interest’ and nation’s aspiration. We do not consider the intention of circulating the writing in his blog a ‘fair’ one.”
The tribunal mentioned that Bergman’s counsel Mustafizur Rahman Khan had expressed regret for causing hurt to the emotion of the nation by making such criticism. “But it is sorry to note that the contemnor has not preferred to express any extent of remorse and repentance, for this criticism touching the emotion of the nation.
“Rather, he remained silent in his written reply. We condemn his lewdness. Judiciary of Bangladesh is not only to uphold its dignity and rule of law. It feels an obligation to value the nation’s emotion and sentiment too which are mingled with our hard earned independence.”
The tribunal also noted that the “contemnor is not found, in any of his articles, proactive in focusing the incidents of crimes being tried by the tribunal under the Act of 1973 and the rights of the victims who have been carrying untold trauma since more than last four decades.”
