The muddle of contempt laws

IN Judgements | 20/01/2015
Dhaka-based journalist David Bergman has been convicted of contempt over his blog on the Bangladesh War of Liberation.
RAKESH SHUKLA argues for the law to be revised (Photo credit: bdnews24.com).

Dhaka-based British journalist David Bergman, known in India for his activism at the time of the 1984 Bhopal gas tragedy, has been convicted for contempt of court in a judgment dated December 2, 2014 of the International Criminal Tribunal-2 in Bangladesh.  

The Tribunal was set up by the Bangladesh Government under the International Crimes (Tribunal) Act 1973 to prosecute war crimes, crimes against humanity and other international crimes committed during the Bangladesh War of Liberation in 1971. The punishment is a token imprisonment till the rising of the court and a fine of 5,000 taka. 

The judgement ironically came days before the 43 anniversary of ‘Martyred Intellectuals Day’ (on  14 December 1971, eminent academics, teachers, litterateurs, doctors, engineers and journalists were dragged out of their houses, blindfolded and killed). 
 
Bergman’s conviction brings out the perils of the vague definition of contempt, combined with deviation from the norms of criminal jurisprudence, such as the lack of an impartial tribunal. 
 
The power of courts to punish for contempt involves two invaluable rights. As the court can and does sentence persons to imprisonment, the fundamental right to life and liberty gets directly affected. Similarly, the fundamental right to speech and expression integral to democracy comes into play as far as public speeches and publications are concerned and, in tune with present times, with online reports and blog posts as well. 
 
David Bergman has been part of a documentary on Channel 4 titled ‘War Files Crime’, has been consistently writing about the atrocities and crimes during the Bangladesh Independence struggle in 1971 and is committed to the prosecution of the alleged perpetrators. 
 
Yet, despite being on the side of justice for the victims and survivors, he stands convicted of contempt of court for the articles he has posted on bangladeshwarcrimes.blogspot.com.
 
On the blog, he writes that he started it “to make it easier for people inside and outside of Bangladesh to keep track of developments in the Tribunal and also to provide some independent analysis of the issues involved”.
 
The proceedings for contempt against him were initiated at the behest of an advocate on the basis of three articles he wrote between 2011 and 2013. The first‘Sayedee indictment: 1971 deaths’published on 11 November 2011 and the two other titled 'Azad judgement analysis 1: 'in-absentia' trials and defense inadequacy'and 'Azad Judgment analysis 2: Tribunal assumptions' respectively were posted on 26.01.2013 and 28.01.2013.

In these articles, the three judge Tribunal found him guilty of making scandalous comments using derogatory and unfair ‘words’ and ‘phrases’ when writing about the Tribunal, allegedly lowering its authority and majesty. He was awarded punishment under section 11(4) of the International Crimes (Tribunals) Act, 1973.

The Tribunal has taken great umbrage at Bergman raising any doubt about the ‘death figure in 1971’. By definition courts are of law and not expected not to be totally swayed by emotions and sentiment.  Implicit in the respect, insularity and dignity accorded to courts is the expectation that they will be cool-headed and administer impartial law. 

Contempt, freedoms and the colonial hangover
 
The power of courts to punish for contempt involves two invaluable rights. As the court can and does sentence persons to imprisonment, the fundamental right to life and liberty gets directly affected. Similarly, the fundamental right to speech and expression integral to democracy comes into play as far as public speeches and publications are concerned and, in tune with present times, with online reports and blog posts as well. 
 
Acts which constitute crimes involve the loss of the invaluable right to life and liberty through imprisonment and punishment and are defined in precise terms leaving no room for ambiguity and reducing the space for the predilections of individual judges. 
 
Like a colonial hangover, the present definition of criminal contempt in Bangladesh and India uses quaint English phrases like “scandalising the court”, “lowering the authority of courts” and “prejudicing the course of justice”. These expressions (for instances, the phrases used by the Bangladesh Tribunal - ‘scandalous comments’, lowering the ‘authority’ and ‘majesty’) are inherently vague and leave a lot of scope for arbitrariness dependent on the individual opinions and predilections of the judge and can lead to unreasonable restrictions on freedom of speech.
 
What is urgently needed is a new and strictly defined criminal offence to replace the branch of law dealing with “scandalising the court”. We need to make distinctions between an intention to interfere with the course of justice as opposed to intending to do the act in question. Similarly, contempt law should take on board an intention merely to insult the judge but not to interfere with the course of justice. The offence of criminal contempt should be so constituted to include the component of intention to impair confidence in the administration of justice.
 
The paradox of contempt 
 
Similarly, the legal justice delivery system rests on the twin fulcrums of ‘no one should be a judge in his own cause’ and ‘fair and reasonable opportunity to be given’ to the accused before punishment. 
 
But these fundamental axioms are a casualty in contempt proceedings. The right to an independent and impartial tribunal stands compromised as the contempt proceedings take place before the very ‘tribunal’ which has been ‘scandalised’. Moreover, the summary nature of contempt proceedings, in contrast to the requirements of a full-fledged trial in criminal law, adversely impacts the opportunity for defence by the accused. 
 
Tribunal of ‘sentiment’
 
The Tribunal has taken great umbrage at Bergman raising any doubt about the ‘death figure in 1971’. By definition courts are of law and not expected not to be totally swayed by emotions and sentiment.  Implicit in the respect, insularity and dignity accorded to courts is the expectation that theywill be cool-headed and administer impartial law. 
 
The judgment is replete with references to hurt emotions. The Bergman conviction brings out the perils of the vague definition of contempt combined with deviation from the norms of criminal jurisprudence like lack of an impartial tribunal. Few excerpts from the judgment illustrative of the impact of sentiment in the application of law follow:
 
‘The issue of ‘death figure in 1971’ involves highest sacrosanct emotion of the nation’ (para 38); ‘Judiciary of Bangladesh is not only to uphold its dignity and rule of law. It feels obligation to value the nation’s emotion and sentiment too which are mingled with our heard earned independence’ (para 41); ‘And the criticism so made, though cites sources, disgraces and demeans nation’s wishes and holy emotion’ (para 43) (emphasis added).
 
It may come as a shock in view of the ‘Truth will Triumph’ mottoes associated with the courts but the fact is that the truth is no defence against the charge of contempt of court. As the Tribunal notes in the judgement: “Besides, the factual correctness of comments made in the alleged criticism cannot be recognised as a ‘defence’. 

The complex issues raised by Bergman’s conviction - free speech, restrictions on liberty, inclusion of mens rea and truth as a defence - need to be debated. Instead, we have the over-simplistic construct of an all powerful, indignant judiciary ranged on one side and on the other, a cowering executive, press and populace. This is the matrix in which criminal contempt jurisprudence seems to be currently frozen in India and Bangladesh. It needs to change.
 
(The author practices law in the Supreme Court of India.)
 
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