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

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

(ii) The increasing absurdity of the Mahfuz Anam affair

(iii) Four factual blunders by the prime minister's son

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 Constitution: The 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.