Wednesday, October 29, 2014

Nizami's conviction - the 'moral justice' or 'fair trial' prisms

Motiur Rahman Nizami was today sentenced to death for crimes he was alleged to have committed during the country's 1971 War of Independence.

He was charged with 16 offences, convicted of eight, and sentenced to death in relation to four.

Putting the issue of the death penalty aside for the purposes of this discussion, I would suggest that one's response to Nizami's conviction depends upon the prism through which one considers the trial.

If it is through the overall prism of moral justice, the conviction is almost certainly fair.

Motiur Rahman Nizami was the head of the Jamaat-e-Islami student wing during 1971, whose members directly collaborated with the Pakistan military, some of whom are notoriously assumed to have been involved in atrocities during the war. It is difficult to imagine that Nizami, in siding with the military, and due to the position that he held, was not involved in crimes against civilians during the war.

However, if one looked at the trial through the prism of fair trial standards, one would have a different perspective, since there are significant and well founded concerns about the process of the trial.

Saturday, October 11, 2014

Summary of legal argument on blog contempt charges

In February this year, a lawyer, who previously had no involvement with the International Crimes Tribunal filed an application with the court claiming that three articles in this blog - one written over two years earlier, on the number of deaths in the 1971 war and two others (here and here) written over a year earlier commenting on the judgment of the trial of Abul Kalam Azad - were in contempt of the International Crimes Tribunal.

An order was passed by the Tribunal seeking 'an explanation' about the criticism. In response, a written explanation was filed with the court, and on 31 March, an oral hearing took place. Following this hearing, on 17 April, the court passed an order which issuing contempt proceedings. In response to this, an 'affidavit in opposition' was filed setting out why these proceedings should not go any further, and no contempt had taken place. 

The judgement is now due on 1 December 2014 (having been adjourned from Monday, 13 October, 2014 as judges said that they had not completed writing their judgement)

Below is the skeleton argument that was filed in court, and formed the basis of arguments made on the last date of hearing as to why the articles in the blog were not in contempt of court.

The arguments can be divided into two parts. Those which argue that the proceedings themselves are unlawful (due to the delay in initiating proceedings, because they were initiated by a third party, lack of a right of appeal) and those which argue that, in any case, the articles fall well within the permissible limits of fair criticism.

To read more detail, you can see the full written affidavit, and you can also see the case law which was cited in court in support of the arguments.

Skeleton Argument
1. Lack of Maintainability 
• 1973 Act/rules not permit third party applications (i.e from a person who is not a prosecutor, investigator or accused) on any Tribunal matter, in particular not permit proceeding with private prosecution, and there is no history of either tribunal allowing third party to file, maintain, argue any application before it. Current application unprecedented.

Blog contempt case, response to court

Below is the 'affidavit in opposition' which was filed in court and which sets out  the main arguments why the contempt of court charges involving three articles in this blog are not sustainable. You can also download the whole document here.

To understand the background to this case, see here.

The arguments in the affidavit, which were supported in oral arguments, can be summarised as follows
1. That the proceedings are not 'maintainable' (i.e were procedurally unlawful), as they were not brought by a party to the tribunal (i.e an accused, a prosecutor, an investigator, or a judge) but by a person, 'a third party', who had no previous role in the tribunal. In no other proceedings before the tribunal has a third party been allowed to file an application, yet alone to initiate and prosecute proceedings - which is the situation here, and there is no procedure to allow it. Such third party proceedings before this tribunal are totally unprecedented. (See para 8 to 14
2. That the proceedings are an 'abuse of process' due to the unprecedented length of time between the publication of the articles and the date at which proceedings were initiated - a period of over two years in relation to one of the articles, and over one year in relation to the other two. In Bangladesh and in other common law countries, the practice is that proceedings for alleged contempt of court through 'scandalization' are initiated within days or weeks of the publication of the alleged contemptuous article - not years. (See paras 15 to 22)