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Hearing on Contempt Petition

Bergman's counsel prays for discharge

Staff Correspondent
Questioning the maintainability of a contempt petition, the defence counsel of David Bergman, a Dhaka-based British journalist, yesterday prayed to the International Crimes Tribunal-2 to discharge his client from contempt proceedings.
The lawyer also said the write-ups, upon which the proceedings were initiated on April 17, fall under the parameters of permissible fair criticism.
Besides, the proceedings would be "a total abuse of process" due to the long delay since the investigators and prosecutors were aware of the contents of the articles posted in his personal blog in November 2011 and January 2013, the counsel added.
Initiating the proceedings against Bergman, the tribunal on April 17 asked him to explain why he should not be punished for making "derogatory comments" about the court through three of his blog entries.
Bergman, in his write-ups, allegedly questioned the number of martyrs in 1971, which the tribunals mentioned in their orders, said the petition filed by Supreme Court lawyer Abul Kalam Azad.
The three-member tribunal led by Justice Obaidul Hassan adjourned the proceedings until September 4. Petitioner's counsel is expected to place his submission on that day.
During yesterday's hearing.
Bergman's counsel Mustafizur Rahman Khan said a "third party", not from the investigation agency or prosecution or defence, filed the petition.
The International Crimes (Tribunals) Act-1973 and rules of the tribunals do not allow a "third party" to file any petition or draw tribunal's attention to any matter, thus the petition is "not maintainable", Mustafizur said.
There is no prior instance of a case been brought before the tribunal by a party unconnected with tribunal's proceedings; he said adding that a "third party" can't "assume the role of the prosecution".
But Justice Mozibur Rahman Miah, a member of the tribunal, asked can't someone draw tribunal's attention about the write-ups under 46(A) of the rules of procedure as the article "imputed" the judges?
Rules 46(A) states "Nothing in these rules shall be deemed to limit or otherwise affect the inherent power of the tribunal to make such order(s) as may be necessary to meet the ends of justice or to prevent abuse of the process."
Terming the contempt petition "unique and unprecedented", Mustafizur said the petition was filed some 28 months after the publishing of first article and around one year of last two posts.
These articles have been in public domain for a long period of time but none came to the court to draw con-
tempt proceeding before this petitioner, he said.
Though, there is no statutory time limit for bringing a contempt petition, the court should take this aspect into account to weigh whether any great prejudice has been caused to the administration of justice due to the write ups, and if not, it should not be counted as contempt.
Justice Hassan, however, said if there were elements of contempt in the write ups, two and half years time could not be an impediment in drawing proceedings against it.
Referring to several decisions of contempt cases both home and abroad - including two filed against Prime Minster Sheikh Hasina during her 1996-2001 term - Mustafizur said the articles fall within the parameters of permissible fair criticism and have been made "bona fide and in good faith".
His article was definitely critical but based on facts and not on the basis of inaccurate statements, the counsel said.
Mustafizur said his client has the "highest regard and respect for the judiciary of Bangladesh in general and in particular the International Crimes Tribunal" and he "never intended" to make any comments to bring disrespect towards the tribunal or its judges.
Bergman was present at the court yesterday.