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.

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. 

You can read about the details that were published about Bangladeshis in 2013 here

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.

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)

To see the main page concerning offshore companies, click here
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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)

To see the main page on offshore companies, click here

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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.

Was the International Cricket Council right to suspend Taskin?

This is an updated post.
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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).

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.

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.

To read the background about this: (i) The Daily Star, media ethics and hypocrisy - 12 things you need to know 

(ii) The increasing absurdity of the Mahfuz Anam affair

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.)

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."

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

              (ii) The increasing absurdity of the Mahfuz Anam affair

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.

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.

See also: Four factual blunders by Sanjeeb Wazed in new Facebook post

               The increasing absurdity of the Mahfuz Anam affair

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.

Six points about UK govt report on Bangladesh elections

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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

Why does the Bangladesh government continue to ban Facebook?

To what extent does the Bangladesh government's continued suspension of Facebook have anything to do with containing violence or stopping those intent on committing terrorist acts from communicating with each other?

Probably not very much, if at all.

One should perhaps give the government the benefit of the doubt that its original decision to restrict Facebook immediately after the appellate division on 18 November finally confirmed the execution of Salauddin Quader Chowdhury and Mujahid, each of whom were leading members of opposition political parties, may well have been security related.

Whilst, the alleged risk of widespread and planned violence perpetrated by supporters of these two men was undoubtedly overblown by the media (much of which has been reporting dubious claims of alleged plots told to them by often unnamed detective branch officers) there has in the past been violence following decisions relating to the International Crimes Tribunal.

This was particularly the case  following the sentencing of Sayedee to the death, where protests resulted in dozens of deaths (though many/most reportedly at the hands of law enforcement agencies themselves in response to the unrest.)

Moreover, the unrest was reportedly in part incited by the distribution on Facebook of photoshopped pictures of the moon with images of Sayedee's face on them - an indication of his supposed innocence.

So the governments decision to immediately restrict the use of Facebook, as well as its messaging service which the country's intelligence agencies reportedly do not have the capacity to access, may well have been reasonable.

However, any risk of violence that there was would have quickly subsided a few days after the executions.

Eleven days later there seems to be no continued security justification.

The militants or violence instigators who supposedly were using the Facebook messaging service to communicate with each other, would very quickly have moved to other forms of encrypted communication which are very widely available, or would otherwise have set up widely available work-arounds.

Indeed, the Facebook ban did not stop the recent attack on the Shia mosque, again claimed by Islamic State, which caused the death of one person.

So what purpose might the continued Facebook ban have? It appears to be useful for the government in two ways.

Linking the security threat to the opposition parties
First the ban helps to bolster the government's claim that recent violent attacks in Bangladesh are the responsibility of the opposition parties - the Bangladesh Nationalist Party (of which Chowdhury belonged) and the Jamaat-e-Islami (for which Mujahid belonged).

Ever since the killing of the Italian citizen, Cesara Tavella, at the end of September 2014, the government has sought to blame this and the other various killings claimed by the Islamic State upon these two opposition parties, and has been using its law enforcing authorities to support this position.

In particular the government has tried to argue that the attacks claimed by Islamic State were not done by operatives linked to the Syrian based organization, but by people - from the BNP and the JI - seeking to stop the war crimes executions.

The continuation of the Facebook ban, which was initiated to deal with a security threat triggered by the execution of a BNP and a Jammat Leader, helps support the government contention that it it these parties (seeking revenge for the executions of their leaders, or simply trying to impede the process of trials) who are country's real security threats, and not Islamic State or others.

Stopping the publication and distribution of dissent
The second and possibly more significant reason is to prevent the publication and distribution of critical commentary about the government and contemporary politics in the country.

Bangladesh's media now has become highly restricted. The country's largest advertisers have been banned from advertising in Prothom Alo and the Daily Star, the country's leading Bengali and English language newspapers respectively, causing them significant income losses, in an apparent attempt to intimidate them, and force them into line or indeed out of business.

Other independent papers have also read the writing on the wall. Investigative journalism critical of the government's activities is now rarely seen in any newspaper - and it certainly has now become impossible for newspapers to publish critical commentary on the International Crimes Tribunal. Bangladesh TV is controlled to an even greater extent - with those seen as critical of the government rarely being invited to speak on the chat shows, the only place that Bangladesh television had allowed some kind of critical commentary on the government's conduct.

In this situation, Facebook had become a key place where Bangladeshis increasingly turned to write, read and distribute critical commentary. The social media site had turned into an important space for critical writing and reading on Bangladesh politics.

The Bangladesh government has for some time been concerned about Facebook as a place for dissent, and threats around the International Crimes Tribunal (perhaps initially justified) provided it an excellent opportunity to close it down on a more permanent basis.

The continuation of the banning of Facebook is just a reflection of the government's desire to control all forms of perfectly legitimate dissent in Bangladesh.

Don't expect the government to open it up soon.

Articles on the police investigation into the murder of Cesare Tavella

On 28 September, the Italian national, Cesare Tavella was shot to death with eye-witnesses pointing to the involvement of three people, two of whom were on a motorbike. Islamic state claimed responsibility for the murder, though the government says that this is not true.

The police authorities have arrested five people - the three people who they say were present at the scene of the murder, the person who provided the bike (all four of whom have provided confessional statements) and the alleged financier of the operation, who is the brother of an opposition party ward commissioner who has been out of the country since April this year.

Here are four articles published in New Age newspaper concerning the police investigation. (Also see here an overall analysis of the investigation)

‘I was threatened with crossfire’, accused tells family (New Age, November 11)David Bergman and Muktadir Rashid

Another man accused of the murder of Italian citizen Cesare Tavella in Dhaka has told his family that he gave a confessional statement to a metropolitan magistrate as he was ‘brutally tortured’ and ‘threatened with cross fire.’
Four relatives of the accused, Rasel Chowdhury, met him on Saturday in Kashimpur Central Jail where he had been remanded two days earlier by a metropolitan magistrate after confessing to his involvement in the murder on September 28 of the Italian NGO worker in Gulshan’s diplomatic zone.
On October 26, along with three other men, Rasel was presented to the media and accused of involvement in the murder of Cesara. Police said that all the four were arrested the previous night, though witnesses claimed that the men were picked up separately two weeks earlier between October 10 and 15.

Tavella Murder: 5 'arrests', 5 secret detentions, 4 'confessions

MA Matin, at the magistrate court

On Thursday, 5 November New Age published an article on the alleged pick up by law enforcing authorities of MA Matin, the brother of MA Quayum who law enforcement authorities alleged was the master-mind behind the killings of the Italian NGO worker in Dhaka at the end of September.

In front of many eye-witnesses, including shopkeepers and local people, at about 7.30 pm on Tuesday the 20 October, as he was on his way to say his prayers, Matin was pushed into a microbus van just around the corner from where he lived by men in plain clothes.

As the article went to press, 15 days after this detention, Matin was still missing - presumably in the secret and illegal detention of law enforcement authorities.

However, early that very morning - somewhat miraculously - the police suddenly announced that "the detective branch has arrested MA Matin in connection with Tavella murder from Benapole, Jessore tonight while [he was] trying to leave the country."

An article on Egypt, should turn Bangladeshi heads

Bangladesh is indeed far from being Egypt and vice versa, but I have for some time noted certain similarities in the deployment of political power by the respective regimes. 

The hard 'secular' leader, brooking no oppression, repressing the political opposition (particularly the Islamist voices) squeezing freedom of speech, using illegitimate elections to stay in power, all with little dissent from 'the west' as Islamic militancy is their greatest enemy.

The Guardian has a great piece published a few days ago, written in the context of General Sisi's visit to the UK. 

And this particular  extract should really turn heads in Bangladesh - as it could almost be written about here.

"In Egypt the regime has polarised the country and suffocated all avenues of peaceful expression and dissent through politics, civil society or media, leaving many dead, disappeared, imprisoned, hiding or exiled. The anti-protest and anti-terrorism laws have left no space for any meaningful dialogue in Egypt, let alone dissent. This is not only true for the demonised Islamist camp: the crackdown has reached every voice of opposition across the ideological and political spectrum. However, the current environment is fertile ground for radicalisation, as many disenfranchised young Egyptians find themselves questioning the ideals of freedom and democracy that they once cherished when they see the free world silent in the face of Sisi’s repression. The government continues to allocate every resource to suffocating any political opposition instead of effectively combating extremism."

The seven questions the Netherlands PM should ask Sheikh Hasina

The Bangladesh prime minister arriving in the
Netherlands on a three day trip

Netherlands has become the first European (or indeed 'Western' country) to invite the Bangladesh prime Minister, Sheikh Hasina, on an official visit since the controversial 5 January 2014 elections.

Bangladesh, as a country, has much going for it with an economy motoring along at 6%, and a government with big dreams of moving the country to a middle income country.

At the same time, however, the human rights situation has perhaps never been worse - certainly not since the return of democracy  in 1990. As Human Rights Watch has recently put it: the country has a ‘large number of chronic and serious human rights violations which fly under the radar on the global scene.’

So, whilst the Netherlands ministers discusses important things as cooperation on dealing with flooding in Bangladesh, and other development collaborations, perhaps they can also take the time to at least ask her questions on these seven issues

1. Media Freedom

The country's military intelligence DGFI, which the prime minister controls, has ordered the major telecommunications and consumer companies to stop advertising by in the country's two leading independent newspapers, The Daily Star and Prothom Alo.

What are you going to do to stop this significant infringement of the freedom of the media and intimidation of these papers?

• Bangladesh spies accused of blocking media adverts 
• Bangladesh blocks ads, curbs media freedom
• 7 things you need to know about the government advert embargo

Twelve things you need to know about the recent killings in Bangladesh

Four men, accused by police of killing Italian NGO worker, Cesare Travella in Dhaka on 28 September,
were detained secretly and illegally for between 10 and 14 days before being presented to the media.
In a country where torture by police is systemic, can one believe their 'confessions'?

The twelve points below attempts to analyze what is going on in Bangladesh in relation to:

• the murders in late september and early October of two non-Bangladeshis, and the bombing of a Shia procession (which resulted in deaths of two Bangladeshis) in mid-October - all of which have been claimed by Islamic State (IS);
• the Bangladesh government's claim that IS does not exist in Bangladesh and there was no involvement of Islamic State in any of these incidents;
• the various claims made by the Home Minister and anonymous police sources that BNP and Jamaat leaders are behind the killing.
• the recents arrests by the Bangladesh government of four people whom they claim were behind the first murder; and
• the connections, if any, between these killings - and the murders early this year, and indeed just this week, of so called 'aethist bloggers' and their supporters;

1. Understanding the chronology leading up to the killing of Cesare Travella

It is important to understand the chronology of events leading up to the murder of Italian citizen Cesare Tavella who was shot to death in Dhaka's diplomatic zone on 28 September.

- On Saturday 26 September, Cricket Australia announced it had received advice from Australia's Department of Foreign Affairs and Trade (DFAT) that it had “reliable information to suggest that militants may be planning to target Australian interests in Bangladesh.”

- During the day on Monday, 28 September, UK's Foreign and Commonwealth Office revised its travel warning to Bangladesh. Prior to that day, the warning had only stated that 'there is a general threat from terrorism,' but on the 28th, the travel warning was re-drafted to state specifically that 'In late September 2015, there is reliable information that militants may be planning to target western interests in Bangladesh.' 

- On the same day, the US also revised its travel warning to state 'There is reliable new information to suggest that militants may be planning to target Australian interests in Bangladesh. Such attacks, should they occur, could likely affect other foreigners, including U.S. citizens'

- Both the British High Commission and the US embassy say that these warnings were drafted during the day of the 28th but only uploaded shortly after 7pm - which was after the murder of Cesare, but before they had come to know about it. One assumes that the basis of these warnings was the same intelligence in the hands of the Australian government.

- At about 6.15 pm on Monday 28 September, the Italian Aid worker, Cesare Tavella, 50, was shot dead on Road 90, of Gulshan 2, an upmarket part of the capital city on a road that is technically part of the diplomatic quarter.

- on the very same evening, ISIS issued a statement, which was first reported by the SITE intelligence group, claiming responsibility for the killings. An informal translation of the ISIS statement states that:

"this is an announcement by the soldiers of the Khilafat in Bangladesh that we killed a crusader after our soldiers followed him in Dhaka and shot him using silencers till he was dead. This is a warning to all nationals of crusader nationals : you will never find security in Muslim countries. And the rain starts with one drop."

So, the killing of Cesare came soon after the Australian, United States and United Kingdom governments received information that 'militants' - short hand for 'Islamic' terrorists - were planning a violent act against foreigners in Bangladesh and then within hours of the murder it is reported by Site International (see below) that Islamic State had claimed responsible for the killing.

Blogger killings: Justifying the unjustifiable

A Facebook status published today of someone whom I do not know (and shall not name) sought to justify the killings yesterday of Dipan and the attack on Tutul, both publishers of Avijit Roy. The status has since been removed, so I paraphrase :

"I have no sympathy for those bloggers that have been killed. The Gonojagaron Mancho have brought it upon themselves by calling for the hanging of people, despite an unfair trial process. They deserve what they get."

This is so wrong, on many levels. There is simply no way that one can justify the 'blogger killings' on the basis that the people killed may have been part of a political demand that those convicted of crimes before the International Crimes Tribunal should be hung.

The men who killed the 'bloggers' - or their publisher - simply decided on their own that these people had committed some sort of crime for which they deserved to be killed. And then they killed them. That is entirely beyond the law and judicial system. There is only one word for it. And that is murder.

Yes, the Gonojagaron Mancho have called and are calling for hanging of those convicted of war crimes - but they do so only at the end of a judicial process in which charges are laid against the accused; where the charges for which the men are accused allow for the death penalty; after a trial has taken place in which witnesses are summoned; and a conviction is given by the court and an appeal process is permitted.

Whatever the inadequacies of the process - and in my view there are many - the Mancho's calling for the hanging of those who have committed these crimes (though in my view misplaced) is a million miles away from killing, or supporting the killing of bloggers, who have not committed any crime, have not been subject to any judicial process, and have not been charged for an offense that allows the death penalty.

It may be the case that calling for hanging following a perceived unfair process, has allowed Islamic extremists and others to think that they are then justified in murdering those who support the calling for the hanging (as indeed this Facebook status shows). But any attempt to link the two is totally unjustified.

The Facebook status - which I guess reflects the views of a considerable section of those who are critical of the International Crimes Tribunal - is very revealing.

It shows clearly that these people - pro-Jamaati, in the main, I imagine - are only critical of the International Crimes Tribunal because they are supporters of the accused who are to be subject to the death penalty - and not because they are interested in due process in any principled way.

These people are not concerned about fair trials, or rights of the accused as such - in fact they are  quite happy for the bloggers to be killed without any judicial process at all. If their patrons or parties came back to power in Bangladesh, I would put my bottom dollar that they would lose any interest in due process and would be happy to see the government prosecute unfairly those people who are their political enemies. And indeed put them to death.

Of course, this is not to say that the criticisms of the tribunal, held by these same supporters of the accused, are not correct. Only that they are deploying the arguments opportunistically, and they would be quite happy with the current ICT process if their political enemies were the accused.

7 things to know about the government's advert embargo

On Thursday, Al Jazeera published a report on how on 16 August 2015, Bangladesh intelligence agency officials had instructed telecommunication and consumer good companies from advertising in the country's two leading newspapers.

After you have read the article, as well as the full statement from Telenor (the majority shareholder of Grameen Phone), here are seven further things to understand about this situation.

1. Dont underestimate the significance of this attack on Prothom Alo and the Daily Star

Love them, or hate them, the Daily Star and Prothom Alo are the leading English and Bengali language papers respectively. In part, this is because they are centrist, independent from government and operate at arms length from their corporate owners - unlike much of the media here. In fact, the papers do share many of the current government's values relating for example to extremism, the 1971 war, the war crimes trials, and secularism. However, at the same time they are willing to report on governance failures - whether these relate to elections, corruption, or general mal-administrations, and these rile the government

The order by DGFI, presumably with the agreement of the powers that be in the Bangladesh government, to stop large companies from advertising in Prothom Alo and the Daily Star is a serious attempt to undermine the freedom of the media in Bangladesh. By throttling the papers' advertising revenue, the government is trying to bring these papers in line - so they no longer are the independent institutions, able to question and challenge the government through their reporting and investigative journalism.

Though there is a background of historic disagreements as to why parts of the government do not like these papers, this current attack on the papers is probably not just about settling scores. Members of the government think that Prothom Alo's reporting and journalism, which reaches many millions of people, can swing votes. This attack is about ensuring that when the next elections come, the government has beaten these papers into submission - and perhaps even to have them shut them down.

2. The silence of the media

What is particularly worrying about the current situation, is that not a word about the instruction has been reported in the country's newspapers or electronic media - not in the Daily Star/Prothom Alo, nor in other newspapers and TV media, although they are all fully aware of the situation.

'An instruction from the authorities': Full statement given by Telenor

Al Jazeera, yesterday published a report on the involvement of the military intelligence agency, DGFI, in instructing large telecommunication and consumer product companies from advertising in the country's two largest and most popular independent newspapers.

You can read the article here.

Telenor, the Norwegian parent company of Grameen Phone provided a statement to Al Jazeera, only part of which was reported in the article. Below is the full statement. It was sent by Tor Odland, VP, Head of Communications, Telenor Group in Asia

"Grameenphone, a company majority owned by Telenor Group, has along with several other large corporations, received an instruction from the authorities to stop advertisements in two leading newspapers in Bangladesh. As a result, Grameenphone has been unable to effectively maintain commercial communication with its customers via these newspapers. A significant number of steps have already been taken by Telenor and Grameenphone to limit the overall impact. This includes initiating a dialogue with the industry, investors, media partners and the authorities. These efforts will continue with the aim of resuming normal commercial activities with the newspapers as soon as possible."