Wednesday, August 17, 2016

The ten fictions of the ‘TerroristObserver’ website

When I made a film about 1971 war crimes, people alleged that I had taken money from the Awami League; when I wrote about the International Crimes Tribunal, it was alleged I was paid by the Jamaat-e-Islami; and when I wrote about the recent detention of the journalist Shafiqur Rahman, it was alleged that I had received money from the Bangladesh Nationalist Party, from Tareq Rahman no less!.

Quite a clean sweep, some may argue.

Of course these were all total fictions - false and defamatory allegations which appear to be simply the price of writing on Bangladesh politics. In Bangladesh, when someone can’t attack the substance of the writing, they simply attack the person who wrote it.

Now there is a new allegation against me made by terroristobserver.com which makes further false, defamatory and unfounded allegations. It comes in response to this article that I wrote about the detentions of Hasnat Karim and Tahmid Khan, two men dining at the time of the attack on the Holey Artisan Bakery.

The website was set up 7 July 2016, and the editor in chief is Riana Trina. According to her Facebook page, she studies or studied law at King College in London, works at the International Crimes Research Foundation, and is a presenter at Harbour Radio. I doubt that she has a career ahead of her in any profession requiring the determination of facts – though she may well have one in fiction and propaganda.

The allegations made by the website in an article widely shared on social media are total fiction – and I really mean fiction. They suggest that I have had meetings which I have never had, received money I never received, spoken to people I never spoke to, did things I never did and said things I never said.

There are at least ten major lies and falsehoods contained in this article, which are set out below

1. “Three days prior to the Gulshan attack, David Bergman and Mir Kashem’s son Arman held a meeting where a man named Nurul Islam was also present.”

This is total fiction. No such meeting took place. I was in London from the middle of June to the middle of July on a family holiday. I don’t know who this Nurul Islam is supposed to be.

2. “David Bergman was given 35 crore Taka to free Hasnat and Tahmid, and to do a campaign in the media.”

A total falsehood. Specifically, I never received any amount of money from any person who wanted me to do anything to ‘free Hasnat and Tahmid, and to do a campaign in the media’. The only money I ever receive for my writing are the professional fees from the publications who publish my writing.

3. ‘The majority of this amount was transferred to Bergman’s friend Samantha’s Natwest Bank account.’

I don’t have a friend called Samantha. And certainly no money (which in fact I was never given), was paid to any account of any person, yet along someone called Samantha.

4. “David Bergman was affiliated with Hasnat Reza Karim from a long period of time. We get the proof from the Twitter account of Hasnat Reza Karim, where he is following and sharing the writing of David Bergman.”

I never met Hasnat prior to the Holey attack, and so am in no way affiliated with him. My first and only interaction with him was at the magistrates court when he was remanded for the second time on  14 August (see below). I have 17,000 followers on Twitter; I am affiliated with only very few of them, and that does not include Hasnat Karim

5. “According to a source, in recent times David Bergman communicated with Arman, the son of Mir Kashem, and Hummam, the son of Saka Chowdhury. In that meeting they decided to take all the steps to do campaign on behalf of Hasnat and Tahmid, and to publish it in all the media in Bangladesh and abroad."

Pure fiction. No such meeting took place, and there was never any agreement of any kind made with these people or with anyone else to ‘campaign on behalf of Hasnat and Tahmid’. I have not met or spoken to Hummam for about two years, since well before the execution of his father.

6. ‘According to the source, Tahmid’s father also joined the meeting through Tele conference.‘

Since no such meeting took place, no one could communicate through Tele-conference. I have never met or spoken to Tahmid’s father.

7. “Our Investigation team tried to contact David Bergman a number of times, but his phone was switched off. He picked up his phone once and told our reporter in a snubbing tone that he will not say anything on this regard.”

I never received any calls, or miss calls, from this website and never spoke to anyone from this organisation, and never spoke to anyone about this subject.

8. ‘[At the magistrates court] David Bergman was seen to whisper something into the ears of Hasnat Karim, and as a reply Hasnat Karim shook his head.

I did not whisper to Karim. I asked him a question, ‘How are you being treated’? And he replied, ‘Things are fine’. At the same hearing, there were dozens of reporters inside and outside the court.

9. ‘He has been working really hard to stop the trials and to question the procedure of justice of the war criminals. … In the last six years, David Bergman has written more than 500 blogs against the tribunal.

Inaccurate. I have never written any article suggesting the stopping of the trials at the International Crimes Tribunal. Over 900 posts have been published on the Bangladesh War Crimes Tribunal blog, but almost all of them, 90 percent I would guess, are simply narrations of what happened at the Tribunal (see here for example). The rest are not ‘against the tribunal’ but are commentary about the tribunal.

10. “He is one of the leading persons to be involved in the skype scandal.”

I was never involved in this in any way.

Monday, May 2, 2016

The '$300 million plot?' - lies, damn lies and Bangladesh political parties

In Bangladesh politics, there is minimal - if any - respect for basic facts.

This is particularly evident by the way in which politicians and the media have written and talked about the United States case involving the conviction and sentencing of three men involved in a bribery plot to obtain confidential information from the FBI.




The Awami League's difficulty with the truth
On the Awami League side, we first had the basic misrepresentations made by Sajeeb Wazed, the son of the Bangladesh prime minister in his various Facebook posts. 

Second, we have the way in which pro-Awami Leaguers - and the media - have written about the case

Thirdly, most recently we have the prime minister herself. The Bangladesh Observer, reported the following:
Prime Minister Sheikh Hasina on Saturday vowed to bring to justice those who conspired both at home and abroad to abduct and kill her son Sajeeb Wazed Joy in the USA.

"The conspiracy has been proved in the USA court," she told a civic rally arranged at Kotalipara Sheikh Lutfar Rahman Ideal Government College ground in the afternoon.

Referring to a USA court judgement, Hasina said an FBI official and a BNP leader have been sentenced to jail for their involvement in hatching a plot to abduct and kill Joy, also the PM’s ICT Affairs Adviser.
Assuming this to be an accurate news report, what the prime minister said was completely inaccurate; any claim that the US court had held or had ruled that there was a conspiracy to abduct and kill Joy is simply untrue.

The court convicted and sentenced the three men on bribery charges and there was never any charges relating to attempting to kidnap/hurt/kill any person. It is correct that the FBI had some evidence that Rizvi sought to kidnap and hurt Wazed, but the court, in the course of sentencing, ruled that it did not believe the evidence and dismissed it. It is also the case that the FBI did not present in the court any evidence that Shafiq Rahman or any other person was involved in any plan of Ahmed's to hurt Wazed.

If the prime minister wanted to use the US case to justify its investigation into the so-called 'plot to kill Joy', this is what she should have said - if at least she wanted to be accurate about the US case.
'A man in the United States pleaded guilty to bribing an FBI agent to obtain financial and other information about my son Sajeeb. During the investigation, the FBI found evidence that suggested that one of the reasons this man sought the information was to kidnap and harm him. The man was never prosecuted for this offence. Moreover the Judge during sentencing ruled that he did not believe that particular evidence. However, there was some evidence, and the Bangladesh government wants to look into this matter to see if there is any further evidence to support the claim that Ahmed planned to hurt my son, and see whether other people were involved.' 
However, it is my calculation that the reason why the Awami League leaders have to misrepresent and misconstrue the US case so much is because they have no further evidence to support its claim of a plot to kill the prime minister's son

The BNP's difficulty with the truth.
But of course it is not just the Awami League. The BNP have now got into the act.

On Sunday, May day, Khaleda Zia , the leader of the BNP, is reported to have said:
“The [US] case files say there is $300 million, which is equal to Tk 25 billion, in an account of the prime minister’s son. 
Where did this money come from? What is the source of this money? ... 
The court had its suspicion over $300 million or Tk 25 billion in his (Joy’s) account. The FBI found the money in investigation.

If you do not release [Shafik Rehman and Mahmudur Rahman], if you are the true prime minister of the people, then your son Joy needs o be questioned in custody about where he got this $300 million or Tk 25 billion.”

“Is this money legal?” 
Well, the case files do not state that there is '$300 million' in the 'account of the prime minister's son'.

The case records only say that there was an FBI memorandum relating to Sajeeb Wazed in which the words '$300 million' were written. It does not say anything more than that. Whilst it is possible that Khaleda is right that the document states that this money is in Wazed's account, it is much more likely not to be the case.

The reason for this is that  had Wazed's accounts really contained this amount of money, the US authorities would surely have taken action against him. Moreover, if is was written in the FBI memorandum that Wazed has this money in the bank, Shafik Rehman would immediately have published it - since this clearly would be sensational news.



Wednesday, April 27, 2016

'Plot to kill Joy' - The article that bdnews24.com refused to publish

Toufique Khalidi, Editor in Chief
Yesterday, I was told that bdnews24.com had refused to publish an op-ed on the the alleged 'plot to kill' the prime minister's son.

My article was written in response to the news website's own op-ed which had criticised my article written for The Wire, as being 'selective’, ‘misleading’ and ‘confusing’.

'Dear David,' the rejection e-mail stated. 'The editorial board has decided to not carry your piece. We hope you will continue writing for us in the future'. No reason was given.

When I submitted the article on Monday I had every expectation it would be published. Bdnews had previously carried another article critical of me - does it seem this is becoming a bit of a habit? - and it published my rejoinder, no questions asked. However, this time, I was told on Tuesday that 'The editorial board is in the process of deciding whether to publish your rebuttal.' I then responded by saying that I was happy to remove the last paragraph as I thought perhaps 'the editorial board' would find it untoward. This morning I heard that website would not carry the piece at all.

So here it is - in full (including the last para). In a separate post I will write why bdnews24 might have refused to publish it -but would be interested to hear any of your ideas why this might be the case.

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Omission and conjecture: A response to Shah Ali Farhad

David Bergman

It takes quite some nerve to write an article about the sentencing of Rizve Ahmed and two other men for bribery offences in the United States and fail to mention the most relevant part of the judge’s ruling - and then to go on to claim that my article is ‘selective’ and its title ‘misleading’ and ‘confusing’.

But that is what Shah Ali Farhad - Assistant Secretary (Central Sub Committee) of Bangladesh Awami League who is employed at a pro-Awami League research organization – has managed to do in his recent article.

Lets start with Farhad’s problems with the title of my article in The Wire, ‘US Court Dismissed Claim of Plot to Injure Bangladesh PM Son.’

Farhad argues that the title ‘tends to denote that a “claim” was made in court about the plot to abduct and kill Sajeeb Wazed by the US government which was then dismissed by the US federal court,’ which he claims did not happen.

Well that in effect is exactly what happened.

As part of its written submission to the court seeking sentencing enhancements, the Department of Justice argued that one of Rizve Ahmed’s objectives in seeking the documents was to physically harm Wazed, and it set out its evidence in support of that claim. (It should be noted that the Department of Justice never claimed at any point in its submission that there was an intention ‘to kill’).

During the hearing the Judge Vincent L. Briccetti considered this evidence and then explained why he thought that it did not support the conclusion claimed by the Department of Justice. (To see the detail of the Department of Justice evidence and the court’s view on it, read ‘Evidential Chasm: The Case Against Journalists Accused of Plotting to Kill Bangladesh PM’s Son’ also published in the The Wire.)

The Judge said, ‘I don't believe that there's sufficient evidence that [Ahmed] really did seek to kidnap and physically harm [Wazed]’.

He also said that on the basis of all ‘the the text messages and the other things that I've seen,’ it was his view that Ahmed’s seeking the confidential FBI information was not about causing Wazed any physical harm but ‘about furthering Ahmed's political aims, getting confidential information to expose what Ahmed apparently thought was corrupt behavior by the ruling party and otherwise embarrass [Wazed].’

Indeed, according to Department of Justice’s submission, the key information obtained from the FBI was, and I quote, “an internal memorandum (the ‘FBI Memo’) that referred to Individual 1 and a sum of $300 million, and a confidential report, known as a Suspicious Activity Report (the ‘SAR’) that also referred to Individual 1.” Individual 1 refers to Wazed.

In his article, Farhad does not refer to or quote a word from the reasons given by the Judge for believing that the evidence was not sufficient to support the Department of Justice’s conclusions. Nor does he quote anything from court’s ruling on this matter.

Since, in relation to the Bangladesh authority’s claim about a ‘plot to kill’, this is the single most relevant part of the sentencing judgment, his failure to do so is bizarre, to say the very least.

Farhad is entitled to disagree with the Judge’s ruling. Indeed, he could well have written an article setting out why he thought the judge was wrong in coming to his conclusions (though interestingly he did not).

However, Farhad is not entitled to set out the ‘evidence’ in one long section of his article, and then seek to pretend to his readers that the US district judge made no negative ruling about it.

Having totally ignored the judgment of the District Court judge, near the end of his article, Farhad then writes the following passage, ‘There should remain no credible doubt as to whether or not there was any cross-border conspiracy to obtaining confidential information on Sajeeb Wazed with the aim of abducting and harming/killing him in the US in light of the information already available in the public domain.’

How he comes to that conclusion - with ‘no credible doubt’, no less - I don’t know.

If we put to one side the US Judge’s comments about the evidence, there remains a huge chasm between the evidence that is currently in the public domain – concerning Ahmed’s criminal purchase of the FBI information, his sale of that information to a journalist (possibly Shafik Rehman), the meeting between the corrupt FBI officer and some Bangladesh associates, and some evidence that Ahmed sought to use the information to harm Wazed – and the claim that there is a ‘cross-border conspiracy’ with ‘the aim of abducting and harming/killing [Wazed] in the US’?

The US Department of Justice may well have further evidence that is not in the public domain which closes this evidential chasm – but at the moment on the basis of evidence in the public domain to make such a conclusion is, one has to say, politically motivated conjecture.

I would suggest that Farhad give up his day job at his Awami League think tank, and look into opportunities with the Bangladesh police, where – with his abilities in analyzing court records and assessing evidence – I am sure he will make a perfect fit.


Thursday, April 21, 2016

A response to bdpanorama - should one laugh, cry, sue or what?

What does one do when a news website in Bangladesh publishes total defamatory rubbish about you and your family - and then gets 13,000 Facebook shares?










Well, a website called bdpanorama has done exactly that. It has published an article, which roughly translates as this:
"Panorama report: After the arrest of BNP chairperson's adviser Shafik Rehman .... journalist David Bergman yesterday met and did a financial deal with Tareq Rahman at London. The meeting took place at April 19 at a restaurant in central London. The middleman of the meeting was a close friend of [his wife], whose name starts with M. Tareq's human right adviser barrister MA Sayem was also present in the meeting. Sources said the agenda of the meeting was to ensure that Safik's arrest was presented in a negative manner and against Awami League in the international media. Initially, they have a 50,000 pound agreement. an official of Sayem's law firm disclosed these information to the Panorama. We will keep you informed on this when we have more information.'
So, on April 19th - and indeed on every day since the middle of January 2016 - I have been living in Dhaka, and have not left the country. So unless I can distort the laws of physics I certainly was not at the meeting on April 19th. My wife was also in Dhaka on that day, and also has not been to London for some months.

I don't know and have certainly never met MA Sayem. And of course I have never received any money from the BNP or any other political party or any individuals connected to a political party

All my journalism is done completely independently. I only ever receive professional fees for my articles from the newspaper or website for whom I write, and from no other person or entity. That also goes for what I write in my blog - though of course no-one pays me for that!

So, it would be wonderful to know who are bdpanorama's 'sources'.

More likely of course no source ever existed, a figment of the website's imagination - and someone decided just to make it up. They saw a recent article I wrote on the background to Shafik Rehman's arrest, did not like it, could not refute it any way since it was entirely fact-based, and decided to try and discredit me with these nasty lies.

Of course, this unfortunately is nothing new, and is something I have written about in the past in the context of my work on the International Crimes Tribunal

And a note to all media. Anyone who repeats these false claims published by bdpanoram are repeating the defamation.

Very sad.




The so-called 'plot to kill Joy' - This is what we know

Yesterday, the Indian news website The Wire published an article on the so-called plot 'to kill' Sajeeb Wazed, the son of the prime minister of Bangladesh. A follow up article was also published. These are the two articles if you are interested in the detail about this 'alleged plot'.

Below are the key point that emerge from these two articles - along with a consideration of the Bangadesh request for legal assistance and the US Government response




This sets out the following*:
  • the two journalists Shafik Rehman and Mahmudur Rahman have been arrested on the basis of information related to a case in the United States. This is clear from the GD and the First Information Report as well as statements by Sajeeb Wazed, the son of the prime minister
  • this 'US case' involved a trial of three men, one a Bangladeshi-American Rizve Ahmed, involving the payment of money to an FBI agent in exchange for confidential information contained in FBI databases about Sajeeb Wazed. The three men pleaded guilty in 2015 to committing bribery and they are all in jail.
  • the three men were never charged with any offence relating to threatening or attempting or planning harm against any person.
  • this case is not one concerning a 'plot to kill Sajeeb' or to harm. It was a case concerned with the illegal procurement of FBI information.
  • the prosecutors never claimed in court that there was any plot 'to kill' Sajeeb
  • prior to sentencing, however, the US prosecutors did claim that one of the Rizve Ahmed's purposes in obtaining the FBI information was to 'kidnap' and 'harm' Sajeeb. According to the case documents, the prosecutors based this on:
    • a voluntary interview with investigating agents in which Ahmed "admitted that he provided the private investigator $4,000, and that he requested the private investigator’s help regarding a plan to “scare,” “kidnap,” and “hurt” Individual 1.” It should be noted that this private investigator, referred to as Steve, was not one of the three men involved in the bribery scheme, but a separate person who Ahmed contacted around January 2012 to obtain information about Wazed.
    • confirmation by the private investigator that Ahmed had told him that he ‘wanted his help regarding a plan to scare and hurt Individual 1’
    • a text message from the corrupt FBI agent, Robert Lustyik to his friend Johannes Thaler, both of whom were convicted along with Ahmed, which was sent when the two men thought Ahmed was reneging on their financial deal. The text stated: ‘Tell [Ahmed], I’ve got [Individual 1’s] number and I’m pissed. . . I will put a wire on n get them to admit they want [a Bangladeshi political figure] offed n we sell it to [Individual 1].’ The assumption, here, is that ‘offed’ means 'killed'.
  • in the course of the sentencing hearing, the court rejected this claim. 'I just don’t feel there’s enough evidence that’s been presented to me for me to make that finding,' the judge said. '“This case is all about furthering Ahmed’s political aims, getting confidential information to expose what Ahmed apparently thought was corrupt behavior by the ruling party and otherwise embarrass [Sajeeb Wazed].
  • the court documents show that Rizve Ahmed gave some of the confidential FBI documents, which he had obtained, to three men - one of whom was referred to a 'Bangladeshi journalist'
  • the court documents show that the prosecutors don't make any other further claim about the Bangladeshi journalist - other than he received these documents
  • the court documents also show that Rizve Ahmed organised a meeting at his house with his two co-conspirators (the FBI agent, and Thaler), a Bangladesh journalist, Rizve's father and another man. The prosecutors say that the purpose of the meeting was to discuss the collection of more confidential documents from the FBI about Sajeeb.
  • the court documents show that the prosecutors don't make any other claim about this meeting other than that its purpose was to discuss the illegal procurement of FBI documents.
It is important to keep in mind that the information we have is limited to what is contained in publicly accessible documents relating to the US case - in particular, the indictment, the government sentencing memorandum, and a transcript of the sentencing decisions.

There could be other information that the Department of Justice and the FBI have about what Ahmed and other people's conduct that is not in the public domain.

In this context, what can we say about the most recent claim made by the Press Trust of India contained in an article which states: 
The United States provided assistance to Bangladesh in its investigation that unearthed the plot to abduct and kill Prime Minister Sheikh Hasina’s son in the US, a senior American official has said, a day after the police claimed to have uncovered the conspiracy. 
“The United States Department of Justice responded to the Government of Bangladesh’s request for legal assistance related to this case,” the official told PTI.
Two things seem to be be conflated here (a) the Bangladesh government's investigation into a so-called plot to 'kill' Wazed; and (b) legal assistance that the department of justice looks to have given the Bangladesh government concerning the Department of Justice's investigation into the US bribery case. For example, the Department of Justice could have provided the names of the three men who received FBI information from Rizvi Ahmed, and three associates of Rizvi Ahmed who met with the FBI agent.

It is the Bangladesh government which is suggesting that these men are all involved in a plot to kill Wazed, not - as far as one can judge from the US court records - the US department of justice.

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*Errors in the spelling of names have been corrected. It has also been re-edited in light of further information published in the second TheWire article.

Tuesday, April 12, 2016

The need for nuanced history about 1971

Syed Badrul Hasan has written an article for bdnews24.com criticising an oped I wrote  concerning the proposed new law crimanalising people who 'distort' 1971's history.

I have written a response which bdnews has also published, but without internal links. So here is the article with links to support assertions in the article.

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The need for nuanced history 
David Bergman

On this website, a few days ago, Syed Badrul Ahsan roundly criticised my op-ed published in the New York Times where I had argued that proposed legislation criminalising people who ‘distort the history of the 1971 war’ was so broadly drafted that it would significantly hinder free speech and stifle legitimate historical research.

‘We will not accept any questioning of the facts related to the War of Liberation,’ Badrul stated in his article where he went onto refer to his ‘absolute unwillingness to allow our history to be questioned.’ He concluded by saying that ‘The Liberation War Denial Crimes Act ought to have been in place a very long time ago.’

In seeking to substantiate his conclusions, Badrul however makes a number of factual inaccuracies, as well as misrepresenting arguments of those like me who are critical of the introduction of the Act.

His first inaccuracy – which also happens to be defamatory – is his attempt to compare me to David Irving.

Badrul states that Irving’s ‘questioning the figures for the holocaust’ – something for which he claims Irving was imprisoned for in Austria - is similar to my ‘rais[ing] issues around the figures of the genocide in Bangladesh.’

It is not correct, however, that Irving was imprisoned for ‘questioning the figures for the holocaust’.

He was punished for denying the use of gas chambers in concentration camps, (a ‘fairy tale’, Irving said’) and also for his claims that Adolf Hitler had helped Europe's Jews and that the Holocaust was a "myth".

This would be like Irving saying about Bangladesh’s 1971 war of Independence that during the war ‘no Bengalis collaborated with the Pakistan military’, that ‘Lieutenant General Niazi had protected the Hindu community from any risk of being killed’ and that ‘no civilians were killed during the 9 month war’.

These would be, if stated by anyone, entirely bogus and false statements which would clearly fall into the category of genocide denial.

But I have never written anything at all similar about the 1971 war.

Lets just look at the New York Times piece. ‘Depending on the source, some 300,000 to three million people were killed, and millions were displaced’ during the war, the article states. It then goes on: “There is no question that there were many atrocities, including rape, deportation and massacres of civilians, carried out by the Pakistani Army, aided at times by pro-Pakistani militias. Some of these included members of the student wing of Jamaat-e-Islami, an Islamist party that remains a powerful force in Bangladesh today. There is an academic consensus that this campaign of violence, particularly against the Hindu population, was a genocide.”

And this paragraph – which one should note states categorically that the killings amounted to genocide - is reflected in all my writings about the 1971 war

Badrul should acknowledge that there could not be a bigger difference between what David Irving has written about the holocaust and what I have written about the 1971 war.

Secondly, Badrul is wrong to suggest that holocaust denial laws ‘have never been an impediment to freedom of speech.’

In fact, they are hotly contested in Europe and criticized both by historians, and freedom of speech advocates.

But, more significantly, Badrul’s is widely of the mark in his attempt to justify the new proposed Bangladesh law by pointing to the ‘holocaust denial laws’.

The Bangladesh law is titled ‘Bangladesh Liberation War (Denial, Distortion, Opposition) Crime Law’ and its offences are far wider than just criminalizing people who deny the Pakistan army atrocities of the 1971 war or who voice support for the crimes that took place (which would put them on a par with the European laws.)

Instead, the proposed legislation allows for the prosecution of anybody who ‘denies …any events for the preparation of the liberation war’ between 14 August 1947 to 16 December 1971, anyone who ‘misrepresents’ any government publication on the history of the war, or any person who represents the liberation war history ‘inaccurately or with half truth’.

These offences – which would seem to allow for the prosecution of any person who disagrees with any aspect of the ‘government-at-the-time’s’ official version of the 1971 war and the preparatory events towards it – are far wider than any offences contained in the European holocaust denial laws.

Badrul is also wrong to suggest that the holocaust denial laws put the ‘Holocaust beyond debate’. Everything about it, apart from the fact that it happened, is contested and researched.

There continues to be much new history written about the holocaust. As mentioned in a recent New York Times review of a book on the holocaust, ‘More than 70 years after the Holocaust, there is no sign of research on it abating. Instead, over the past few decades, historians have been extending their inquiries … So voluminous is this scholarly outpouring that few are able to keep up with it.’ And the research is about every element of the holocaust.

Much of the rest of Badrul’s article concerns his claim that there is an attempt to in Bangladesh to shape a ‘new narrative’ on the 1971 war.

Perhaps there are people seeking to do that, but journalists and researchers like myself are certainly not part of any such initiative. All that we are interested in doing is being able to articulate a more nuanced view of the 1971 war – and indeed of current political life in Bangladesh - which does not simply ignore research just because it happens to be inconvenient for one reason or the other. As the Guardian newspaper aptly put it: “Mature countries should be ready to interrogate their own history, and accept there are diverse interpretations of how they came to be.”

It is a terrible shame that Syed Badrul Ahsan seems to be set very much against that.

Monday, April 11, 2016

"Bangladesh's deeply politicised, dysfunctional criminal justice system"

The International Crisis Group has published a new report on Bangladesh (which I have written briefly about here) and whilst I don't agree with every word, it has crafted a rather masterly executive summary which accurately reflects the way the law enforcement authorities and the criminal justice system has been used/abused by the current government against its political opponents. The Executive Summary is set out below. The full report is also really worth a read.

"As the Awami League (AL) government’s political rivalry with the Bangladesh National Party (BNP) reaches new heights, so has its repression. At the same time, a deeply politicised, dysfunctional criminal justice system is undermining rather than buttressing the rule of law. Heavy-handed measures are denting the government’s legitimacy and, by provoking violent counter-responses, benefitting violent party wings and extremist groups alike. The government needs to recognise that it is in its interest to change course, lest it fail to either contain violent extremism or counter political threats. A key part of a more prudent course would be to depoliticise and strengthen all aspects of the criminal justice system, including the judiciary, so it can address the country’s myriad law and order challenges and help stall a democratic collapse.

Sunday, April 10, 2016

Bangladesh Liberation War (Denial, Distortion, Opposition) Crime Law’

Last week, a New York Times oped criticised the breadth of the Bangladesh Law Commission's proposed new law, now titled, ‘Bangladesh Liberation War (Denial, Distortion, Opposition) Crime Law’ - often referred in short as the 'Liberation War Denial Crimes Act'.

This post provides a translation of the key sections of the proposed legislation. This text is almost identical to the text that was put out for expert consultation, and which was the basis of the NYT oped


As one can see, the offences are very broad and go way beyond 'denying' genocide or showing support for crimes committed during the war - which are the kind of offences found in the European 'holocaust denial' offences.

Section 4(2) sets out the offences - and is the crucial section.
"Any denial of the following subject in any media of any nature or in any manner will be considered as offence of distortion of the history of liberation war and will be considered as a crime 
(a) denying events that were for the preperation of the liberation war betwen 14 August 1947 to 28 Feb 1971 
(b) denying events that were for the preperation of the liberation war between 1 March 1971 to 25 March 1971 
(c) denying events that were for the preperation of the liberation war bweteen 26 March 1971 to 16 December 1971 
(d) Giving a malicious statement in any local or foreign media that undermines any events related to the liberation war 
(e) Misrepresentation or devaluation of any government publication, so far published, on the history of the liberation war; 
(f) Representing the liberation war history inaccurately or with half truth in the text books or in any other medium 
(g) Trivialising any information related to the martyrs, female war heroines, the killing of civilians, arson, rape and looting 
(h) Mocking any events, information or data about the liberation war 
(i) Committing contempt of the liberation war by calling the liberation war anything other than a historic fight for the nation’s independence

(j) showing justification for or publicising support for various criminal activities conducted by the Pakistan army in 1971 and Al Badr, Razaker, Al Shams and members of the Peace Committees As the Auxillary forces of the Pakistan army. 
(k) Showing support to the crimes against humanity, crimes against peace, genocide and other war crimes or calling into question or carrying out false propaganda about the trials that deals with these crimes."
Section 4(2) states that
"Any supporting activities of any kinds of activities mentioned in subsection (1) will also be considered a crimes under this law."
Section 5(1) states that the sentence for committing an offence under section 4 is from 3 months to five years imprisonment as well as a fine of upto Tk 1 crore.

Section 5(2) states that if anyone convicted for the crimes mentioned in section 4 repeats these crimes again, 'he will face double the punishment for what he received in the first offence' and that if someone is convicted for more than one crime at a time 'then punishment will be carried out in a consecutive manner.'

Section 6(1) states that anyone who provides any assistance or conspires to commit an offence he will face the same punishment as the principal offender

Section 7 sets out the procedure. It states that anyone can file a case in a police station or in a local court. If the case is filed in court, before taking the case, the court will analyse the allegation and question the alleged person and conduct the investigation as they consider appropriate. The trial will be conducted under the code of criminal procedure. The government can appoint one or more special prosecutor to conduct the prosecution.

Section 12 states that that the law applies to any Bangladeshi citizen who commits this offence outside Bangladesh.

Friday, April 8, 2016

ICIJ 2013 leak database

There are some misleading reports in the Bangladesh media (like this one) that suggest that Bangladeshis have been named in 'The Panama papers'

As of now, that is not the case. 

The only names of Bangladeshi politicians and businessman linked to offshore companies that have been released by the ICIJ consortium relate to an earlier 2013 leak of information involving the British Virgin Islands. 


However, ICIJ have created a public database of some of that 2013 leaked information which also can be accessed here.

Just search for Bangladesh, and you will get quite a lot of information, though no corroborative documents.

It should be emphasised that none of the information in this database relates to the Panama Papers - only to the 2013 leak. It is not new.

Tuesday, April 5, 2016

Top AL family set up offshore company network

One of the big international news stories right now is the leak of information concerning the establishment of off-shore companies by politicians and businessmen around the world involving the Panamanian law firm, Mossack Fonseca.

Just over two years ago, the International Consortium of Investigative Journalists were also involved in another leak of information about offshore companies in the British virgin islands.


Whilst the connections of Bangladeshi politicians and businessmen to the offshore companies identified from the most recent leak of the Panama law firm papers are not yet known, here are the stories published just over two years ago in The New Age about the offshore companies set up by Bangladesh politicians and businessmen in the British virgin islands

Below is the main  article, first published in New Age on 12 July 2013 concerning a network of off-shore accounts set up Kazi Zafrullah - a member of the Awami League's 12 member presidium and also relative of the prime minister by marriage.

Bangladeshi businessmen's link to offshore companies revealed



This article was originally published on 14 July 2013 in The New Age, and is part of a series on offshore companies set up by Bangladeshi businessmen and politicians. (The original link is not working)


Local businessmen’s link to offshore companies revealed 
David Bergman 
The directors of some of Bangladesh’s biggest business conglomerates, including Summit, Square, and the United group, own or have owned offshore companies in the secretive tax haven of the British Virgin Islands, New Age can reveal.
Information about their offshore company ownership is contained amongst the 2.5 million electronic files which were leaked to the International Consortium of Investigative Journalists – and which have been shared with New Age.
The files contain information from the databases of two offshore company service firms including Singapore-based Portcullis TrustNet which was the firm that these businessman paid to set up their companies.
From the ICIJ files, New Age has identified a total of over 20 Bangladeshi business people who have owned an offshore company, though there may be many more who have registered using a non-Bangladesh address or who set up offshore companies using different service agencies.

Legality of offshore companies, bank accounts






This article was originally published on 12 July 2013 in The New Age, and is part of a series on offshore companies set up by Bangladeshi businessmen and politicians in the British Virgin Islands (The link to the article on the New Age website is not working)

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Legality of offshore companies, bank accounts

David Bergman

The legal foundation for the rules relating to how Bangladesh residents can remove money from the country for personal or business use is set out in the Foreign Exchange Regulation Act 1947.
Section 5 of the Act sets out a blanket restriction on residents from making payments to people resident outside Bangladesh – though the same section allows Bangladesh Bank to make both ‘general or special’ exemptions to this rule.

Sunday, March 20, 2016

Was the International Cricket Council right to suspend Taskin?

This is an updated post.
----------------------------


My very good friend, the excellent lawyer Mustafizur Rahman Khan (who has also helped me out in a legal scrap or two) has written what appears to be a very persuasive Facebook status on the illegality of the suspension of the bowker Taskin Ahmed which concludes that the cricketer is the victim of a 'miscarriage of justice' and that the whole process is a 'farce'.

Mustafiz writes in his capacity of a lawyer representing the Bangladesh Cricket Board

His Facebook status (at the time of writing this post) has been shared by over 13,000 people, and it has been reported by all the country's main news media (Dhaka Tribune, Daily Star etc). Mustafiz is (as everyone who knows him well knows), a highly knowledgeable cricket obsessive and so it seems appropriate that he should become newly famous for his legal analysis of a cricketing issue!

You can read his status here.

Referring to a document called the 'ICC regulations for the review of bowlers reported with suspected illegal bowling actions,' he makes three basic points.
- in the independent assessment, Taskin was only found at fault for the way he bowled bouncers, not for any other kind of deliveries bowled (i.e not for yorkers). However he did not bowl any such balls during the cricket match where he was reported by the umpires . 
- secondly, where a bowler is found to have employed an Illegal Bowling Action during the Independent Assessment in respect of a specific type of delivery only, other than his stock delivery, the Player will be allowed to continue bowling in International Cricket but subject to a warning. This he says is the situation in which Taskin finds himself since he was only found at fault due to his bouncers.
- thirdly, the preliminary report made by the match umpires, which started the whole process, was vague and possibly non-compliant with ICC regulations 
In an earlier version of this post, I had pointed to a 'note' to para 2.1.12 of the regulations which seemed to suggest that Mustafiz's analysis may be wrong. However, Mustafiz has informed me that this 'note' is no longer included in the 2015 version of these rules, and so the analysis set out in the earlier version of this post was not correct. (If you would like to see the previous version of this post, please see the end.

So - moving on from that mistake! - if we take into account the most recent version of the regulations, is Mustafiz right? The key sections of the new regulations are as follows:

Section 2.2.6 states:
"During the Independent Assessment, the Player shall be required to replicate the specic bowling action for which he/she was reported."
Section 2.2.9 then states:
"Where the Independent Assessment concludes that the Player employed an Illegal Bowling Action during the Independent Assessment, it should indicate in the Independent Assessment Report whether the Player employed an Illegal Bowling Action generally or in respect of specific type(s) of delivery only and whether, in the Appointed Specialists opinion, such conclusion is not inconsistent with the relevant video evidence. If the Independent Assessment Report indicates that the Player employed an Illegal Bowling Action in respect of specific type(s) of delivery only, it should specify which deliveries were found to be illegal and differentiate between the Player’s stock delivery and other deliveries." (emphasis added)
Then para 2.2.12 states
"In the event that the Independent Assessment concludes ... that the Player employed an Illegal Bowling Action in respect of his stock delivery during the Independent Assessment and that such conclusion is consistent with the relevant video footage ....  the Player shall immediately be suspended from bowling in International Cricket until such time as he has submitted to a further Independent Assessment." (emphasis added)
Para 2.2.13 then goes onto state:
"In circumstances where the Independent Assessment concludes that the Player employed an Illegal Bowling Action during the Independent Assessment in respect of a specific type of delivery only, other than his stock delivery, the Player will be allowed to continue bowling in International Cricket but subject to the warning that should he continue to bowl any of the speci c type(s) of delivery for which he has been found to have an Illegal Bowling Action, he will run the risk of being cited a second time." (emphasis added)
Now what this all comes down to is what is meant by a 'stock delivery' and what is meant by a 'specific type of delivery', and are bouncer deliveries considered to be part of Taskin's 'stock delivery' or are they a 'specific type of delivery'? As Mustafiz mentioned (and is clear from above) if an illegal bowling action is found relation to a stock delivery,  'suspension' will result, but if it is found in relation to a 'specific type of delivery',  only a 'warning' will result. So if a bouncer is considered to be a stock delivery then the ICC would be right to suspend Taskin, but if it is a 'specific type of delivery' then they were wrong to do so.

Unlike in the 2010 version of the policy, which provided a note which helped to explain what was a 'specific type of delivery' - where a 'bouncer' was not considered a 'specific type of delivery' - the 2015 policy does not include any clarity on the meanings of these two terms

Mustafiz says in his post:
"The Assessment did not find anything illegal with Taskin's stock and yorker deliveries."
It is not clear from Mustafiz's account what is the basis for this statement - .whether he is himself defining of what is or what is not Taskin's stock delivery, or whether, as may well be the case, the assessment report itself makes this clear.

But, if the assessment report itself states that there is nothing wrong with Taskin's 'stock' deliveries, then Mustafiz is certainly correct in his status post - and Taskin should not have been suspended.

-----------------------

Old Version of post (based on 2010 policy)

However, I am afraid to say that Mustafiz's analysis may be wrong - at least in the key issue of whether he should have been warned or suspended. I know I am treading in particularly dangerous waters of Bangladesh's cricket nationalism in suggesting that - but nonetheless, for the sake of (what I think) is a better and fairer understanding of the issue, I am diving in!

Suspension or warning
Mustafizur's account fails to mention one key provision in the regulations that, unfortunately for supporters of Bangladesh cricket, does appear to make Taskin's suspension legal.

Mustafiz's crucial point in his analysis is that Taskin should at the very most be 'warned' and not suspended. In making this argument he points to section 2.2.12 which states that:
"In circumstances where the Independent Assessment concludes that the Player employed an Illegal Bowling Action during the Independent Analysis in respect of a specific type of delivery only, the Player will be allowed to continue bowling in International Cricket but subject to the warning (Warning) that should he continue to bowl any of the specific type(s) of delivery for which he has been found to have an Illegal Bowling Action, he will run the risk of being cited a second time. "
This Mustafiz argues is exactly the situation faced by Taskin - as he has only been found at fault in the independent assessment in relation to his bowling of 'bouncers' - which he is treating as a 'specific type of delivery'.

However, the ICC regulations do not consider bouncers to be a 'specific type of delivery'. There is a 'note' to this section 2.2.12 which states:
"Note: This is intended to cover the circumstances where a Player employs a different technique to deliver a specific type of delivery e.g. propelling the ball out of the back of the hand to produce a “googly” or “doosra”. It is not intended to cover the situation where the same basic technique is used to produce a different type of delivery e.g. more effort to produce a bouncer or a yorker. (emphasis added)."
This 'note' specifically deals with Taskin's situation. That is to say, a bouncer is not considered by the ICC regulations as a 'specific type of delivery' but instead part of 'the same basic technique' to produce a 'different' type of delivery.

As a result it would seem, the ICC was in fact required to suspend him - and there was no discretion on their part to warn him.

The importance of the TV footage
There is also some uncertainty about the nature of the TV footage. Mustafiz refers in his Facebook status to TV 'footage', stating that:
'The footage of his bowling in the match where he was reported is available. It shows that during the course of the match, he did not bowl any bouncer. Not even one. So, he could not have been reported for bowling a bouncer. The Match Officials' Report from the Netherlands match did not specify any particular delivery/type of delivery. Indeed, it simply stated that they were "concerned with the legality of the action". Be that as it may, he was not reported for his bouncer.'
Now this footage is crucial. Section 2.1.5 of the ICC regulations states that:
'If the Match is a televised Match, upon receipt of the Match Officials’ Report from the Match Referee, the ICC shall arrange for three copies of the television footage of the bowling spells of the Player in the relevant Match to be produced as soon as possible. Once these tapes have been received, the ICC shall immediately write to the Player’s Home Board confirming that the Player has been reported for a suspected Illegal Bowling Action and enclosing the Match Of cials’ Report and two copies of the tape referred to above.'
And in section 2 of Annex 1 of the policy, titled 'ICC Standard Analysis Protocols', it goes onto state that: 
"The television video footage of the entire bowling spell(s) of the Player in the Match where the report was made shall be presented on a master tape. (ICC to supply Match footage. If possible, rear, frontal and lateral views of the action shall be provided.) The master tape shall be converted to 50Hz / 60Hz (standard television footage is recorded at 25Hz) to enable more accurate evaluation of the Player’s bowling action on the day the Player was actually cited. Descriptive analysis during the Match footage should compare the actions of the Players e.g. positioning of feet, angle of run up, position of the torso, velocity of arm, velocity of delivery (95% of Match speed etc). These comparisons should be clearly presented in the report."
Moreover, the ICC independent assessment is undertaken only in the context of this TV footage. In fact the ICC regulations make clear that a player can only be suspended if the Independent Assessment concludes that the Player employed an Illegal Bowling Action during the Independent Analysis, 
'and that such conclusion is not inconsistent with the relevant video footage.' (para 2.2.12)
Therefore, for the ICC to come to a conclusion to consider the suspicion of Taksin, there must have bene identifiable problems in the TV footage and in the 'descriptive analysis' of this footage. 

Mustafiz is not clear on this point whether the footage does show any concerns - he only mentions that Taskin did not bowl any bouncers and that the match official's report was vague. Clearly, if the TV footage (or descriptive analysis of the footage), do not show problems in any of Taskin's bowling deliveries, then he cannot be subsequently suspended. 

However, one must assume that the footage does in fact show legitimate concerns in relation to some of his deliveries - though not in relation to bouncers (which according to Mustafiz he did not bowl).



Wednesday, February 24, 2016

How a High Court order in Amar Desh editor defamation case can help Mahfuz Anam

Extract from High Court involving Amar Desh

A legal response to the Awami League (and the Bangladesh government's) vilification of Mahfuz Anam, the editor of the Daily Star - as represented by the 62 criminal defamation and 17 sedition cases filed against him by Awami League activists - can be found in a  similar episode which was experienced by Mahmudur Rahman, the editor of Amar Desh.


Also See

The legal action which was taken at that time by Mahmudur Rahman's lawyers could - and should - be replicated by Mahfuz's lawyers. And one would hope that it would result in the same order - the staying of the criminal defamation cases.

The background to the defamation cases against Mahmudur Rahman
Rahman is currently in prison following his arrest in April 2013 in relation to offences he allegedly committed by printing the ICT Skype conversations - but before this he was subject to a series of criminal defamation cases similar to that now faced by Mahfuz Anam.

On 17 December 2009, his newspaper, Amar Desh printed an article alleging that the ministry of energy was investigating  alleged corruption on the part of Dr. Tawfique-e-Elahi Chowdhury, an advisor to the present Prime Minister and Sajib Wajed Joy, son of the Prime Minister. According to legal papers subsequently filed, and discussed in court:
"In the Report it was stated that the Ministry of Power, Energy and Mineral Resources was investigating allegations of corruption of Dr. Tawfique-e-Elahi Chowdhury and Sajib Wajed Joy in relation to accepting bribes of USD 5 million for awarding a contract to Chevron, a United States based oil company. In this regard relevant portions of the correspondence between the Ministry of Power, Energy and Mineral Resources and the Bangladesh Oil Gas and Mineral Corporation (“Petrobangla”) were quoted in the report."    
Two days later, on 19 December, Amar Desh also published a rejoinder to this article signed by a Senior Information Officer of the Ministry of Power, Energy and Mineral Resources where it was stated that the article was "false, irrelevant, fabricated, motivated and was published to tarnish the image of the govt." The rejoinder ended by saying that "The people whose reputation is at stake have the right to take legal action against it".


Following the publication of the article, 24 criminal defamation complaint cases  were filed around the country by activists of the Awami League in 22 separate districts claiming that the reputations of the two men named in the article had been defamed. In 23 cases involving 21 districts, the magistrate took cognisance of the allegation. (In one case, in Cox's Bazaar, the Chief Judicial magistrate did not do so, see below.)

No defamation case was filed by either of the two men Dr. Tawfique-e-Elahi Chowdhury or Sajib Wajed Joy, who were subject of the alleged defamation.

Sound familiar?

This took place before 2011 when it was still possible, immediately following the filing of a criminal defamation case, for a magistrate court to issue an arrest warrant and so Mahmudur Rahman sought and obtained anticipatory bail in relation to all these cases. However the cases themselves continued and he was required to attend hearings in the cases in different parts of the country.

The Amar Desh High Court Writ
In January 2010, Mahmadul Rahman filed a writ before the High Court bench of Ms Justice Nazmun Ara Sultana and Mr Justice Ms Rais Uddin. 

Violation of section 179 of CrPC: The petition first claimed that the relevant Chief Judicial Magistrate had taken cognisance of the cases in violation of section 179 of the Code of Criminal Procedure which requires that the the accused is triable for an offence in the district where the act is done or where the consequence of the act ensues. Section 179 of the Code of Criminal Procedure states as follows:- 
“When a person is accused of the commission of any offence by reason of anything which has been done, and of any consequence which has ensued, such offence may be enquired into or tried by a Court within the local limits of whose jurisdiction any such thing has been done or consequence has ensued.”
The petition argued that as a result it was therefore not possible to file cases in lots of districts.
'Admittedly, the report dated 17.12.2009 was published from Dhaka. The address of the petitioners and the Daily Amar Desh are shown to be within the District of Dhaka in the Complaint Petition. There is no statement in the entire petitions of the above quoted Complaint Register Cases as to how the alleged offence or consequence thereof took place in the relevant Districts, (other than Dhaka) giving the relevant Chief Judicial Magistrate jurisdiction. As such the Chief Judicial Magistrates had no jurisdiction to entertain the above quoted Complaint Register Case on the basis of the allegations made therein.'
Violation of Article 35(2) of the ConstitutionThe writ also claimed that the multiple prosecutions relating to the same set of facts were in violation of Article 35 (2) of the constitution. This states that:
(2) No person shall be prosecuted and punished for the same offence more than once.
Violation of section 198 of Code of Criminal Procedure: The writ also argued that the cases were made in violation of section 198 of the Code of Criminal Procedure. Under section 198, a Magistrate may only take cognizance of a case involving defamation (contained in part XX1 of the Penal Code), 'by some person aggrieved by the offence.' The petition stated:
"Admittedly, the complainants in the [complaint cases] were not aggrieved by the report published in the Daily Amar Desh on 17.12.2009. Admittedly, there was no statement against the complainants in the above quoted [complaint cases] in the Report of Amar Desh dated 17.12.2009. Nor have the complainants alleged that they have been aggrieved by the Report published on 17.12.2009. They claim to be members of the Awami League and its related organisations. ..... As such, unless the Complaint Register Case is filed by an aggrieved person, no Court may take cognizance of the same. Hence, the Chief Judicial Magistrate, unlawfully took cognizance of the alleged offences under sections 500 and 501 against the petitioner." 
In this context, the writ petition provided a copy of an order of the Chief Judicial Magistrate in Cox's Bazaar which was the only magistrate to have refused to take cognisance of the case. This order stated as follows:
'[T]he essence of the said law point can be found in a case reported in 23 DLR 15 (Hasan Razak vs Mehrin-Nisa). From the careful perusal of the case it is obvious that the term 'aggrieved' has included a handful of blood related persons of the family such as parents, brother, husband etc (whose reputation by also be seriously affected and thereby suffers injury.) It does not include any other sorts of injury. Moreover is is further noteworthy that in AIR 1934 Sind 18 (cited in para 19 in 23 DLR 15), the imputation was made against the spiritual head of a community as a trustee of waqf property and complaint was filed by one of the followers. It was held that the complainant was an an aggrieved person'
The judgment in Hasan Razak vs Mehrin-Nisa referred to the case headnote of the 1934 case, and it is worthwhile setting it out here:
'The question as to whether a person who files a complaint of defamation is or is not aggrieved by the defamation within the meaning of this section is a question which should be determined with reference to the nature of the accusation and having regard to the special circumstances of each case. Only such person as directly or indirectly suffered in his own reputation by the defamation complained of can set the machinery of the law courts into motion. In short, aggrievement of the complainant should not merely be the one shared by every member of an organised society.' (emphasis added)
So, according to case law, a person is only 'aggrieved' if they are themselves allegedly defamed or they are a close member of the family of the person who is allegedly defamed. Other people cannot file a case.

The High Court order
On 2 February 2010, the High Court bench gave its order. Below is the relevant extract. You can download the full order here (This is a 1MB file, and may take a bit of time to download, so be patient!)
"We have heard Abdur Razaq, the learned advocate for the writ petitioner and also Mr Murad Reza the learned Additional Attorney General for the respondents and gone through the writ petition and the papers annexed thereto. 
It appears that all these impugned 23 complaint cases have been filed against the Writ Petitioner on the same allegation of publication of a defamatory news in the daily 'Amar Desh' on 17.12.2009. The proceedings of these Complaint Register Cases have been challenged on the main contentions that provision of Article 35(2) of the Constitution of the People's Republic of Bangladesh has been disregarded in filing of these cases and taking cognisance thereof and also that the provisions of section 179 and 198 of the Code of Criminal Procedure also have been ignored in filing of these cases and taking cognisance thereof. The learned advocate for the writ petition has submitted that all these impugned cases being filed on self same allegations are not maintainable in view of the provision of Article 35(2) of the Constitution of the People's Republic of Bangladesh and that the continuation of these proceedings in the Courts of different districts is not only illegal but these have been causing also great harassment to the writ petitioner as this requires writ petitioner to travel these 21 districts very frequently to remain present in the court on every fixed dates of the cases. The learned advocate has stated also that the writ petitioner, in the meantime, has been granted bail in all these 21 case by this very High Court Division. On the Other hand, Mr Murad Reza, the learned Additional Attorney General for the respondent argued that this writ petition is premature, that the proceedings of the impugned cases are still at initial stages and there are other forums for the writ petitioner to challenge these proceedings. The learned Additional Attorney General has submitted also that Article 35(2) of the Constitution of the People's Republic of Bangladesh and also Section 403 of the Code of Criminal Procedure will not operate as any bar in continuation of the proceedings at this stage. 
We have considered the submission of the learned advocates of both of the sides. Considering the fact that all the impugned Complaint Register Cases have been filed on the self same allegation of publication of a defamatory news in the daily Amar Desh on 17.12.2009 and also considering the submission of the learned advocate for the writ petitioner that the petitioner is being harassed highly as he is to travel all these districts very frequently to remain present before court on each fixed date of each of the cases, we are inclined to issue a rule. 
Hence, 
Now upon hearing [Names of petitioner and respondent lawyers] and upon consideration of the said petition this court doth order and do issue a Rule Nisi calling upon you the aforesaid respondents to show cause on or before the 1st March 2010 as to why the further proceedings of the cases filed against the petition in the court of different districts on the self-same allegation of publication of a defamatory news in the daily Amar Desh on 17.12.2009 being Complaint Register cases [list of case nos set out] shall not be declared to have been commenced and continued without lawful authority and are of no legal effect and/or such other or further order passed as to this court may seem fit and proper. 
Pending hearing of the rule, the further proceedings of the cases filed against this Writ Petitioner own the allegation of publication of a defamatory news in the daily 'Amar Desh' on 17.12.2009 Pending in the court of different distractions other than Dhaka district be stayed for a period of 3 (three) months from this date.
The stay order has been extended every few months till this day. It is not known if any of the respondents filed a response as required. And the one case in Dhaka that was allowed to continue has not proceeded at all.

Conclusion
Anam's lawyers should immediately go to the High Court and present these same arguments to obtain a stay on all criminal defamation proceedings.

Friday, February 19, 2016

Four factual blunders by Sajeeb Wazed in new facebook post

Sajeeb Wazed, Bangladesh's prime minister's son has made a second facebook post in support of legal action against the editor of Bangladesh's most popular English language newspaper, The Daily Star - who now face 58 criminal defamation cases and 17 sedition cases all round the country.



Wazed's new Facebook post however contains four significant factual errors (totally misunderstanding Bangladesh's legal system, and the role of the media) which undercuts his whole argument. In fact his own logic suggests that he should be seeking the removal of all the criminal cases against the Daily Star editor.  Lets see whether he does this in his next comment, which no doubt is coming any day soon. This post also raises four additional queries about Wazed's position on this issue.

THE ERRORS

1. The cases are not civil, they are criminal

He says:
"Several of our “civil society” and newspaper editors are criticizing the civil defamation lawsuits filed against Mahfuz Anam following his admission of running a false smear campaign against my mother. .... The cases are all civil in nature, claiming damages and monetary compensation."
In fact all the defamation cases against Mahfuz Anam are criminal in nature. They are not civil. The cases are lodged in the magistrates court and, if they are about defamation, involve a criminal offence under section 499 of the Penal Code and each offence lodged allows a sentence of imprisonment of upto 2 years imprisonment. (In fact, the claims for compensation - which are part of the cases - have no basis since the magistrate court has no jurisdiction; the plaintiff's have to go to a civil court if they wish to seek compensation.)


Wednesday, February 17, 2016

The increasing absurdity of the Mahfuz Anam affair


A thoughtful Bangladeshi friend of mine told me the other day that he was glad what was happening to Mahfuz Anam. I asked him in astonishment, how could he say that. He said: "Politics in Bangladesh has become so absurd, and what is happening to the editor of the Daily Star may actually make people sit up and realise that things have simply gone too far."



Well, I doubt that will happen. But it is certainly the case that what is happening to the Editor of the Daily Star is as an unedifying reflection of how in Bangladesh, the leader, the party and the state has increasingly meshed into one and how (using the courts) the governing party and its supporters can trample on the rights of just about any one in whatever way they wish. As John Emerich Edward Dalberg-Acton said: 'Power tends to corrupt and absolute power corrupts absolutely.'

Yes, it is simply unbelievable that there are 55 criminal cases lodged against Mahfuz Anam - 12 for sedition (each of which allows for three years imprisonment) and 43 for defamation (each of which allows upto 2 years imprisonment).

I have already written about some aspects of the hypocrisy and absurdity involved in this case, but here are four further points focusing on the legal cases against Anam.

Saturday, February 13, 2016

The Daily Star, media ethics and hypocrisy - 12 things you need to know

After a two month hiatus, the BangladeshPolitico blog is back .... and there is much to catch up with.

Lets first start with the big media story of the moment.

Just days before The Daily Star celebrated its 25th anniversary, its editor Mahfuz Anam was questioned on the ATN News* Television channel about the paper's role during the state of emergency that took place between 2007 to 2009.


This was the period when - with a looming manipulated election on the horizon - the military took over, installed a civilian caretaker government, and remained in power over two years before holding elections that brought the Awami League back to power in 2009.

During this period, Sheikh Hasina and Khaleda Zia, the leaders of the country's two main political parties were arrested (and placed in house detention) and charged with corruption - on the basis of evidence provided by other politicians and businessman who also had also been arrested in droves.

It looks like Mahfuz had no idea that he was going to be questioned about this matter - and one of his responses during the exchange has created a firestorm in the county.

Monday, December 14, 2015

Six points about UK govt report on Bangladesh elections

Add caption
On Sunday, Al Jazeera published an article on the report commissioned by UK's Department for International Development concerning the integrity of the 2014 national and local elections in Bangladesh and the role of the Election Commission.

DfID had tried hard to keep the report secret, claiming at one point that it's disclosure would "cause significant offence to the Government of Bangladesh" and make it difficult to continue its programming operations in the country. However, on request from the independent Information Commissioner's office, DfID finally released the report.

The report is a must read for anyone interested in Bangladesh elections and the role of the election commission, and the full report can be downloaded here

There are a number of points to be made about the report.

  1. This report was an important factor in the US Aid, UK Aid, the European Union and UNDP stopping funding of their five years $14 million support to the Election Commission, and also meant that for the first time in years, there is no donor aided support to the Election Commission.
  2. The report was written by an independent expert providing an objective assessment of the Election Commission. She cannot be accused of having any particular axe to grind in relation to Bangladesh.
  3. It sets out clearly the international law obligations on Bangladesh in relation to holding free and fair elections, and what is required for elections to be deemed free and fair.
  4. It specifically states in relation to the January 2014 national election that since they "were not based on broad participation," the "international law commitments related to a genuine process … are very subject to question."
  5. In relation to the subsequent upazilla elections, the report sets out in detail the concerns about the neutrality and effectiveness of the Election Commission - which is the crucial institution necessary for holding free and fair elections in Bangladesh. 
  6. Unless significant reforms are made to the election commission, which do not look like they are coming, it will be difficult for the Bangladesh government to claim with much credibility that future elections organized under the commission are legitimate - though no doubt they will try to do so."
As to DfID, although the UK government department did its best to block disclosure of the report, one needs to give it credit for its general system of transparency.

DfID does makes public on its Development Tracker website far more information on its projects in Bangladesh (and in other countries) than any other donor organization - and if it was not for DfID's 'annual review' of it election-related projects (available on that website) where a short section from the consultant's report was extracted, one would not even have known that a consultant had been commissioned to write this report.

And in the end of course, though clearly under pressure from the Information Commissioners Office, DfID did disclose the report.

Process of obtaining the report
Dfid had done its very best not to disclose the full report.

I first came across mention of it in an annual review of DfID's funding of election related work including a UNDP-managed project supporting the work of the election commission, which was available on DfID's very useful Development Tracker website.

This annual review mentioned that a report had been written on the election commission and quoted three sentences from it. This resulted in this article at New Age.

In May, I made a request for a copy of this document under UK's Freedom of Information Act 2000. After many time extensions, on 30 July DfID sent a letter refusing a copy of the document. The letter stated:

"DFID holds a copy of this report which we are withholding under the exemptions at Section 27 (1) (a) (b) (c) and (d) (International relations) and 40 (2) (Personal information) of the Freedom of Information Act 2000. ....

"Section 27 (1) (a) (b) (c) and (d) provides that information is exempt if its disclosure would or would be likely to prejudice the relations between the United Kingdom and any other state or international organisation, or the interests of the UK abroad, or the promotion or protection by the United Kingdom of its interests abroad.
In applying this exemption we have had to balance the public interest in withholding the information against the public interest in disclosing it.
Factors in favour of disclosure include the strong public interest in transparency and accountability.  There is also a clear public interest in raising awareness and understanding of how the UK government works at a country level and in how we aim to engage with partner governments and international organisations in seeking to reduce poverty.
Factors against disclosure include the strong public interest in ensuring that DFID and the UK Government are able to promote international development and protect UK interests abroad.  To do this there must be good working relationships with other governments and international partners based on confidence and trust.  Disclosing sensitive information relating to the Election Commission Bangladesh would be likely to damage the UK’s relationship with the Government of Bangladesh, harm the ability of DFID to work with and influence other donors in eradicating poverty and undermine the UK’s ability to respond to international development needs.  Releasing the information requested could also damage the UK’s ability to deliver government policy and to protect and promote UK interests.  This would not be in the public interest.
We have concluded that the balance of public interest in this case favours withholding the information."
I then appealed this decision and on 1 September obtained this response:

"Thank you for your e-mail dated 2 August 2015 in which you asked for an internal review of the decision to withhold a report commissioned by DFID in March 2014 following elections in Bangladesh.  I have carried out this review and am now writing with the outcome. 
 DFID’s response, dated 31 July 2015, withheld the report primarily under section 27 (1) (a) (b) (c) and (d) (International relations) of the Freedom of Information Act 2000.  It set out the public interest arguments for and against disclosure in relation to this qualified exemption.
 I have now reviewed the withheld information and reconsidered our application of the exemption and public interest arguments for and against disclosure.  I am satisfied that the exemption was correctly identified and that the balance of public interest favoured withholding the information you sought. I am therefore upholding the decision. I have set out some additional points below which I hope you will find useful.
 DFID accepts there is a clear public interest in disclosure, including the points you make in your e-mail regarding DFID’s public comments on this issue, the use of taxpayers’ money and the decision not to continue to provide support to the Election Commission.  To help meet this public interest, DFID has, as you know, published summary information of the report’s findings, including critical analysis of the elections and the Election Commission, in the Annual Review of the Strengthening Political Participation project.
 However, disclosing the more detailed information contained in the full report would be likely to cause significant offence to the Government of Bangladesh.  This could harm the trust between DFID (and the UK Government more widely) and the Bangladesh Government and so reduce the likelihood of open and effective dialogue in future.  Such dialogue is absolutely essential to ensuring effective programming and to enable both governments to respond to the development issues faced in Bangladesh. Disclosure in such circumstances would not be in the public interest.
 I consider that it would not be appropriate to release the full report simply because summary information – albeit frank and critical - has been published.  The language used in our public communications is carefully chosen so as to make points clearly but not in a way that would cause offence or undermine international relations with the Government of Bangladesh.  In my view, DFID’s decision to publish some relevant information on this sensitive issue has helped to achieve the right balance between competing public interest demands while at the same time maintaining the integrity and effectiveness of international relations. "

I then appealed to the Information Commissioners Office, which is an independent body. On 30 November, I then got a letter from DfID.
"At the request of the Information Commissioner’s Office, DFID has reviewed the information which we withheld from disclosure in our response to your Freedom of Information request reference F2013-154.

I am now writing to inform you that we have concluded that the information should be released. I, therefore, attach a copy of the report “DFID Election Programming Assessment” dated March 2014. Please note that this is an independent expert report commissioned by DFID Bangladesh to review support to the Election Commission and make recommendations. The views in the report are the expert’s own views and do not represent UK government policy.

While the assessment was primarily for internal use, DFID has, in the spirit of transparency, proactively published significant information in relation to the issues raised in the report, including key extracts from it. In light of this, and information which is otherwise in the public domain on this issue, we now consider that the public interest in this case favours release of the report. I would, however, explain that, as required, DFID deals with FOI requests on a case by case basis. As such the decision to disclose this report should not be taken as a precedent for releasing reports relating to other governments and overseas partners more generally."