Content Regulation / Censorship, Defamation / Reputation, Political Expression
The Case of Sarawak Report and Malaysia Insider
Closed Contracts Expression
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The International Crimes Tribunal of Bangladesh found a journalist in contempt of the court for publishing articles that allegedly created a controversy over the total number of death during the country’s liberation war of 1971 and questioned the validity of holding a trial in absentia by the Tribunal. The Court held that a public criticism of an issue that is under judicial consideration or when it tends to undermine the court’s authority can constitute the offense of contempt.
David Bergman, a British journalist, published three separate articles in his personal blog on issues surrounding the Bangladesh Liberation War of 1971, particularly about the country’s International Crimes Tribunal, a domestic judicial mechanism with the mandate to punish individuals responsible for atrocities committed during the war.
In two articles, Bergman questioned the exact number of people died during the war, and criticized the Tribunal for its failure to make an independent inquiry about the matter, rather than reciting figures provided in the first indictment. In another article, he questioned the validity of adjudicating a case in absentia by the Tribunal.
Following the publication of articles, a contempt proceeding was brought against Bergman under Section 11(4) of the International Crimes Tribunal Act. The Applicant alleged that Bergman intended to demean, disparage and lower the Tribunal’s authority and that his article on the issue of death figures was aimed to hurt the emotion and aspiration of the public.
On the other hand, Bergman argued that the articles were a fair criticism of the Tribunal and were made in good faith. He stated that he did not intend to undermine the public confidence in the administration of justice. Bergman also argued that contempt proceeding is not an appropriate action for the alleged offenses because cotempt is an extraordinary power of the court and must be used sparingly.
The issue before the Tribunal was whether Bergman violated Section 11(4) of the International Crimes Tribunal Act of 1973. Pursuant to the Section, “[t]ribunal may punish any person, who obstructs or abuses its process or disobeys any of its orders or directions, or does anything which tends to prejudice the case of a party before it, or tends to bring it or any of its members into hatred or contempt, or does anything which constitutes contempt of the Tribunal.”
As to the articles on the death figures, the Tribunal ruled that a public criticism of an issue that is under judicial consideration amounts to contempt of the court. It found that even though the issue of death figures did not directly relate to the merits of pending cases, Bergman’s articles created confusion in the mind of public and undermined the Tribunal’s authority in making its own observation concerning the matter.
With regard to the other article, the Tribunal held that Bergman’s criticism of its in absentia trial was a deliberate attempt to “lower down and demean the tribunal’s authority and ability that finally tends to tends to shake the public confidence upon the judicial machinery of the Tribunal and its governing Statute.”
It ruled that the freedom of speech does not protect a criticism, even a post judgement criticism, that “create debate and mystification in the mind of public as to fairness, dignity, image, judicial process and independence of the Tribunal.”
For foregoing reasons, the Tribunal found Bergman in contempt and imposed imprisonment until his full payment of court fines and fees.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision restrains the freedom of expression, specially the right to criticize on matters of public concern that may call into question the administration of justice.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
A newspaper which attacked the local judiciary by describing judges as “swinish whites-skinned judges”, “pigs”, and “judicial scumbags and evil remnants of the British Hong Kong government” was found in contempt of court.
Supreme Court of India held that a criticism ceases to be fair and reasonable when it is likely to interfere with due administration of justice or undermine the public confidence in the judicial authority.
Case significance refers to how influential the case is and how its significance changes over time.
The decision does not directly bind the first instance courts of Bangladesh because it specifically concerns a violation of the International Crimes Tribunal Act of 1973. However, the decision can be a persuasive authority on cases that involve public criticism of a judgment or a judicial authority.
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