It is another day in court, temperature over 32 degrees Celsius, humidity 82% - quite natural during hot summer months in Bangladesh. According to the Bangladeshi system, the accused are not allowed to sit inside the courtroom; they have to stand on the dais for hours, no air conditioner, not even a ceiling fan to give minimum comfort. It is punishment before even being convicted.
In court at 9:00 a.m.; had to stay until 3:00 p.m. Three witnesses from the prosecution’s side appeared and were allowed to give their statements. My lawyers were not ready; the petition to change the time was moved; the court rejected it.
The Bangladeshi intelligence agencies arrested me in November 2003 at Zia International Airport in Dhaka on my way to Tel Aviv to attend a peace conference organized by the Hebrew Writers Association.
The Islamist Coalition government, which existed then, initially brought a minor Passport Act violation charge against me. Later, however, after pressure from local Islamists, the government brought sedition, treason and blasphemy charges against me as well in January, 2004. The case was then handed over to Criminal Investigation Department [CID] for investigation. These charges are punishable by death.
Nearly a year later, in January, 2005, a charge sheet was submitted by CID. In the charge sheet, the investigation officer said, “Brief description of the allegation is, investigation officer of this case, Md. Abdul Hanif, OC, Zia International Airport Police Station, with the permission from Home Ministry, lodged a complaint against arrested accused Salah Uddin Shoaib Choudhury, who was arrested under section 54 of CRPC, on 24-01-04 at 11:05 am, stating that mentioned Salah Uddin Shoaib Choudhury collected banned Israel’s visa and passport, and while he was attempting to visit Tel Aviv, on an intelligence report, he was arrested at Zia International airport where we recovered materials from his possession which hurts the religious sentiments of Muslims.
“Subsequently he was arrested under CRPC 54 and produced before the court. On primary investigation, after finding evidence of the allegations, the officer in charge lodged this case. Details of the case is in the First Information Report. After the lodging of the case, the officer-in-charge took the responsibility of investigating the matter. He drew maps of the places and of prepared a chronological description of the incident. Interrogated the witnesses and recorded their statements. Later, as the case was refereed to Criminal Investigation Department by the Police Headquarters, CID Head Quarters vide memo no. C/A Dhaka/ A Dhaka/ PD/ 25-04/ 3374/ 1 (4) dated 24-03-04, appointed Police Inspector of CID as the investigation officer of this case. He took the case on 6/4/04 and received all related documents, visited the place of occurrence and recorded the statements of the witnesses under Section 161. As he was transferred on 1/8/04 to Sylhet Range, the case was handed over to Mr. Abdul Ghani on 25/8/04 that undertook the investigation, visited the place of occurrence and recorded the statements of the witnesses. On investigation, allegations against the accused have been proved in primary stage. He submitted ES with the higher authorities for consent to submit Charge Sheet against the accused.
“Higher authorities agreed with his comments and expressed their decision vide memo number CA/Dhaka/PD/25-04/75 dated 5/1/05 to submit charge sheet against the accused named Salah Uddin Shoaib Choudhury, which I received on today dated 1/1/05. It may be mentioned here that, previous investigation officer Mr. Abdul Ghani as transferred on … and I took over the investigation assignment of this case. And, on today dated 1/1/05 being approved to submit the charge sheet, submitting the charge sheet no. 01 dated 19/1/05 under sections 295-A/124-A/120-A/505-A/108-A against the accused Salah Uddin Shoaib Choudhury.”
In the comment section of the charge sheet, investigation officer said, “Past record of the accused person is: Nothing bad found about his character after investigation. But, on primary stage, it is learnt that he is a spy for Israeli intelligence.”
On November 13, 2006, the trial court in Dhaka framed charges against me.
Judge Momin Ullah, in the order of framing the charges said, “I, Md. Momin Ullah, Metropolitan Session Judge do here by accuse you Salah Uddin Shoaib Choudhury for the following reasons:
The State Prosecution has brought allegation against you stating that, Salah Uddin Shoaib Choudhury, being the editor and owner of Blitz newspaper, you sent an article titled ‘Hello Tel Aviv’ to USA Today newspaper published from Washington. Furthermore, in 2003, while attempting to travel to Israel to attend a conference titled ‘Education Towards Culture of Peace, organized between 1st December to 3rd December 2003, you appeared at the Zia International Airport on the 29th November 2003 and the Immigration police arrested you and found the copy of the speech you prepared to deliver in the conference. In that speech, you have made offensive comments on the Muslim world, Islam and Muslims in Bangladesh and commented about existence of Al Qaeda and other Islamist militant groups, by which you have tarnished the image of Bangladesh in the outside world. Furthermore, you have made a conspiracy of spreading anti-state news through that speech and by sending that speech to the outside world, you have played an offensive role to Bangladesh’s security, public discipline and an adverse role towards Bangladesh’s relations with the outside world. In you report, you have mentioned about guerilla training in the Bangladeshi madrassas, by which you have influenced the religious sentiments and made imaginary stories abroad about jihadist training in favor of Laden, Arafat and Saddam, by which you have put Bangladesh’s foreign relations to threat and through this you have caused offense under Penal Code Section 505 (A), 295 (A) and 120 (B).
“The allegations were read before the accused and he claimed to be innocent (not guilty) and prayed for justice.”
My international counsel Professor Irwin Cotler already submitted his legal opinion on this case with the court in Bangladesh. Let us have a look into some of the excerpts of the opinion of Professor Cotler, MP, who earlier defended Dr. Andrei Sakharov in the former Soviet Union, Nelson Mandela in South Africa, Muchtar Pakpahan in Indonesia, Prof. KunLun Zhang in China and Dr. Saad Eddin Ibrahim in Egypt.
In the opinion Prof. Cotler wrote, “The basic principles of the Bangladeshi constitutional law as set forth in The Constitution of the People’s Republic of Bangladesh, all other sources of domestic Bangladeshi law (add reference to any other domestic sources to be drawn upon); basic principles of criminal law; and the relevant and applicable principles of international law, particularly the Universal Declaration of Human Rights (the “UDHR”) and the International Covenant on Civil and Political Rights. (the “ICCPR”) to both of which the People’s Republic of Bangladesh is a state party.
“More specifically, is submitted pursuant to the right conferred upon every individual under Article 8 of the UDHR to seek “an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.
1. Similarly, Article 2(3) of the ICCPR binds the People’s Republic of Bangladesh as a State Party:
a. “To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
b. “To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
c. “To ensure that the competent authorities shall enforce such remedies when granted.”
2. It is respectfully submitted that this Honourable Court constitutes the competent national tribunal or judicial authority as envisaged by Article 8 of the UDHR and Article 2(3) of the ICCPR and as established under the People’s Republic of Bangladeshi law for this purpose. Of course, the “effective remedy” referenced in both the UDHR and the ICCPR as it related to the present case is a dismissal of all charges against Mr.. Choudhury.
3. The arguments set forth below should also serve to demonstrate the striking discrepancy between the rhetoric of the Government of the People’s Republic of Bangladesh and the actions of the same in the realm of criminal justice. To the point, the High Commissioner for People’s Republic of Bangladesh has said that journalists in People’s Republic of Bangladesh are among the freest in the world, whereas realities such as the current case of Mr. Choudhury render the High Commissioner’s claim spurious at best.
4. Furthermore, People’s Republic of Bangladesh applied in 2006 to become a member of the human rights council. It would certainly be unprecedented for a country that wishes to sit on the human rights council to allow the continuation of an injustice such as the one taking place against Mr. Choudhury.
5. Perhaps most importantly to my role as a Member of Parliament and as Human Rights Critic for the Opposition is the Canada-Bangladesh Rule of Law Project. I have worked for many years on this topic, and I have great interest in the success of the legal system of People’s Republic of Bangladesh. Unfortunately, this brief is submitted to argue that the legal system of People’s Republic of Bangladesh has failed to this point in the case of Mr. Choudhury. However, dismissing the charges against Mr. Choudhury will go a long way toward placing People’s Republic of Bangladesh back on the path to a successful and effective legal system.
6. Mr. Choudhury was initially charged on the 1st day of September, 2005 under provisions 108-A (Abatement in People’s Republic of Bangladesh, of offences outside it), 120-B (Punishment of criminal conspiracy), 124-A (Sedition), 295-A (Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religious beliefs) and 505-A (Prejudicial acts by words, etc.) of the Bangladesh Penal Code in relation to a minor passport violation. However, a court order issued on February 28, 2007 outlines the charges under 505-A (Prejudicial act by words); 295-A (Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs; and 120-B (Punishment of criminal conspiracy).
7. It is the respectful submission of this brief, that - and as appears more fully in the Legal Argument section of this brief - the charges against Mr. Choudhury are utterly without foundation and constitute a violation of Bangladeshi constitutional and domestic laws, basic principles of criminal law, and international human rights law.
8. The charges alleged against Mr. Choudhury—as set forth more fully in Part IV below—are utterly devoid of any basis in fact or law. In fact, Mr. Choudhury has been an asset to the State of the People’s Republic of Bangladesh by arguing for greater freedom and peace internationally. In law, the People’s Republic Bangladesh has exaggerated and falsely-constructed the charges pending against Mr. Choudhury.
9. In particular, as described more fully below, many of Mr. Choudhury’s fundamental human rights, both procedural and substantive, have been violated. These rights are guaranteed under the Bangladeshi Constitution, basic principles of criminal justice, and the UDHR and the ICCPR, to both of which the People’s Republic Bangladesh is a State Party.
10. Namely, Mr. Choudhury has been deprived of the right to be presumed innocent until proven guilty; the right not to be arbitrarily arrested and detained; the right to be informed promptly and in detail of the nature of the charge; the prohibition against torture and the right to inhumane conditions during detention; the right to protection against coercive interrogation; the right of access to legal counsel; the right to equal access to, and equality before, the courts; the right to a fair hearing by a competent, independent and impartial tribunal established by law; the right to freedom of religion and conscience; the right to freedom of religion and conscience; the right to freedom of expression and freedom of the press; the right to freedom of association and assembly; and the right to freedom of movement including the right to leave and re-enter the country; among other guaranteed human rights.
“Accordingly, it will be respectfully argued - and recommended - that all charges against Mr. Choudhury be quashed and dismissed, that any verdicts of guilty be vacated, that Mr. Choudhury be acquitted of all charges, and that Mr. Choudhury be awarded fair and just compensation for human rights violations suffered as a result of the wrongful prosecution.”
Professor Irwin Cotler wrote, “Salah Uddin Shoaib Choudhury (“Mr. Choudhury”) is a journalist from the People’s Republic Bangladesh, editor of the Weekly Blitz publication, and a human and democratic rights defender.
“Mr. Choudhury, who is NOT an Israeli spy nor otherwise an agent of the Government of Israel, and against whom no evidence for such a claim was ever adduced, refused to confess the same.
“On April 30, 2005, after seventeen (17) months in prison, Bangladeshi authorities released Mr. Choudhury after interventions by various human rights activists, including Dr. Richard L. Benkin, the Committee to Protect Journalists, and Journalistes Sans Frontière, and the United States Congress.
“Since July 2006, Mr. Choudhury has faced continuous threats, intimidation, and violence. In particular, on July 6, 2006, the newspaper offices of Mr. Choudhury were bombed by an extremist Islamic organization in retaliation for his newspaper publishing an article in support of Ahmadiyya Muslim minority.
“On October 5, 2006, Mr. Choudhury was attacked at his newspaper office by a mob of people, including prominent members of the ruling Bangladesh National Party. Mr. Choudhury was again accused of being an agent of Israel. Furthermore, Mr. Choudhury was badly beaten during the incident.
“Though the precise timeline of the charges presently entered against Mr. Choudhury is as nebulous as the charges themselves, it is clear that Mr. Choudhury presently is charged with at least three misplaced charges: sedition, treason, and blasphemy.
“Mr. Choudhury has been charged with several offences. First, what is the legal basis for the charges levied against Mr. Choudhury? Are the charges related to the factual reality? Is the legal framework in place in the People’s Republic Bangladesh to allow a man to stand trial for serious charges of sedition, treason, and blasphemy, punishable by death, when the only actions in issue are a passport violation and a series of editorials arguing for greater peace and cooperation between and among religions and peoples?
“Second, even assuming the charges are well-founded as a matter of law, does the evidence adduced before this court support the charges?
“Third, do the charges against Mr. Choudhury, as applied in the present situation, violate Mr. Choudhury’s rights under international law, as defined by international conventions and treaties to which the People’s Republic of Bangladesh is a State party?
“Fourth, are the charges so abhorrent to customary international law and international law of general principle of other major legal systems that they cannot justly be applied to this case?
“Fifth, have the arrest, detention, and trial of the accused been attended by procedural violations that violate due process as understood to include traditional notions of justice and substantial fairness been satisfied? Namely, was Mr. Choudhury arbitrarily arrested and detained; was Mr. Choudhury informed promptly and in detail of the nature of the charges against him; was Mr. Choudhury exposed to coercive interrogation; did Mr. Choudhury have access to adequate legal representation at all times before, during, and after his detention; was Mr. Choudhury provided equal access to the courts; was there equality before the courts with respect to Mr. Choudhury’s case; was Mr. Choudhury given a fair hearing by a competent, independent, and unbiased tribunal; and has Mr. Choudhury been afforded the right to be innocent until proven guilty?
“Sixth, have the fundamental rights of the accused, as guaranteed by the People’s Republic Bangladesh Constitution, been violated? More particularly, has Mr. Choudhury been treated humanely at all times by officials, agents, and authorities of the Government of the People’s Republic Bangladesh; was Mr. Choudhury given the opportunity to freely follow his conscience and the religion of his choice; was the freedom of expression of Mr. Choudhury and of the press satisfied in the present case; was the right to freely associate and assemble upheld; and did Mr. Choudhury have the freedom of movement, including the right to leave and re-enter the country?
“Seventh, does Mr. Choudhury have the right to a just and enforceable remedy as required by Bangladeshi and international law, and has that remedy been improperly denied Mr. Choudhury in the case at bar? Specifically, does this court have the authority to:
- Quash and dismiss all charges against Mr. Choudhury;
- Vacate and set aside any and all other rulings issued in the present case;
- Order the acquittal of all charges against the accused; and
- Guarantee the rights of Mr. Choudhury as protected by Bangladeshi and international law?
“Eighth, does Mr. Choudhury’s right to a just and enforceable remedy include the right to reasonable and fair compensation for any violations of Mr. Choudhury’s fundamental rights as described above?”
Cotler further wrote, “In particular, this brief avers eight major arguments as to why the charges should be quashed, any and all other verdicts set aside, the accused acquitted, and why Mr. Choudhury should be indemnified for the serious violations of his fundamental rights. The arguments include:
a. There is no legal basis for the charges levied against Mr. Choudhury. Sedition, blasphemy, and treason have no relation to the factual reality of Mr. Choudhury’s case. Mr. Choudhury violated his Bangladeshi passport and used his publication as a means to argue for greater freedom, peace, and cooperation for the world, but he did not commit treason or incite, nor did he illegally blaspheme the Government of the People’s Republic Bangladesh or any other party.
b. Even supposing that the charges against Mr. Choudhury are well-founded as a matter of law, there is no evidence to support the charges against him. Not only is the bare factual reality of the situation inadequate to support the charges, but the Public Prosecutor handling Mr. Choudhury’s case has previously stated that there is no evidence to support the present charges.
c. The charges against Mr. Choudhury’s violate the fundamental rights of Mr. Choudhury under international law. The People’s Republic Bangladesh is a State Party to the Universal Declaration of Human Rights (“UDHR”) and to the International Covenant on Civil and Political Rights (“ICCPR”), both of which clearly demonstrate the violations of Mr. Choudhury’s fundamental rights.
d. Customary international law and the law resulting from the general principles followed by the major legal systems of the world, including nations that claim to be havens of freedom as does the People’s Republic Bangladesh, call for the dismissal of the charges against Mr. Choudhury because, as applied, the charges are illegal under international law.
e. Due process, as it is understood to include traditional notions of justice and substantial fairness has not been achieved. More particularly; Mr. Choudhury was arbitrarily arrested and detained; Mr. Choudhury was not informed promptly and in detail of the nature of the charges against him; Mr. Choudhury was exposed to coercive interrogation; Mr. Choudhury did not have access to adequate legal representation until he was released from prison after seventeen (17) months in solitary confinement; Mr. Choudhury has not been given a fair hearing by a competent, independent, and unbiased tribunal; and, Mr. Choudhury has not been considered innocent until proven guilty.
f. The fundamental rights of Mr. Choudhury as guaranteed by the People’s Republic Bangladesh Constitution have been violated. Specifically, Mr. Choudhury has been treated inhumanely by officials, agents, and authorities of the Government of the People’s Republic Bangladesh; Mr. Choudhury was not and has not been allowed to freely follow his conscience and practice the religion of his choice; Mr. Choudhury has not enjoyed the freedom of expression and his publication has not experienced the freedom of the press; Mr. Choudhury was not allowed to freely associate and assemble pursuant to his ideas; and, Mr. Choudhury was illegally and unduly stripped of his right to move freely, in particular to leave the country. It should be noted, however, that when this brief argues that Mr. Choudhury was stripped of his right to leave the country, it does NOT argue that Mr. Choudhury had a human right to go to Israel. The People’s Republic Bangladesh, as a sovereign nation, can regulate its diplomatic relations as it sees fit. However, Mr. Choudhury was singly not permitted to leave the People’s Republic Bangladesh at all.
g. If Mr. Choudhury in fact has access to a just and enforceable remedy in the present case, it has been improperly denied thus far. Namely, if it is possible for the court to quash and dismiss all charges, to vacate and set aside any and all other adverse rulings in the present case, to order the acquittal of all charges against Mr. Choudhury, and to guarantee the rights of Mr. Choudhury as protected by Bangladeshi and international law, then the court must do so for the reasons argued herein.
“No remedy can be just in this present case unless it includes reasonable and fair compensation for the numerous violations of Mr. Choudhury’s fundamental rights.
“In any free and democratic society, and in the modern criminal and constitutional law of free and democratic societies, freedom of speech and expression is a vital freedom.
h. “Modern Constitutions around the world clearly demonstrate the value placed on the freedom of expression and speech in free and democratic societies.
i. The U.S. Constitution: “Congress shall make no law … abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
ii. The Canadian Charter of Rights and Freedoms: “Everyone has the following fundamental freedoms…freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication.”
iii. The South African Bill of Rights: “Everyone has the right to freedom of expression, which includes—freedom of the press and other media; freedom to receive or impart information or ideas; freedom of artistic creativity; and academic freedom and freedom of scientific research.”
Indian Constitution: “All citizens shall have the right to freedom of speech and expression.”
“The Constitution of People’s Republic of Bangladesh, itself, guarantees absolute protection of the freedoms of thought and conscience.
“The Constitution of the People’s Republic of Bangladesh: “Freedom of thought and conscience is guaranteed. Freedom of thought and conscience, and of speech.”
“Obviously, Mr. Choudhury enjoys and absolute protection under the Constitution of the People’s Republic Bangladesh that he maintains absolute freedom of thought and absolute freedom of conscience as a Bangladeshi citizen.
“The Constitution of the People’s Republic of Bangladesh: “Subject to any reasonable restrictions imposed by law in the interests of the security of the State, friendly relations with foreign states, public order, decency or morality, or in relation to content of court, defamation or incitement to an offence—the right of every citizen of freedom of speech and expression; and freedom of the press, are guaranteed.
“The Constitution of the People’s Republic Bangladesh allows reasonable restrictions to the freedom of speech and expression and the freedom of the press.
“However, what follows will show that the charges brought against Mr. Choudhury represent unreasonable restrictions on his freedom of speech and expression, as well as an unreasonable restriction on the freedom of the press. Likewise, Mr. Choudhury’s speech and expression through press and otherwise poses no reasonable threat to the security of the State, no reasonable threat to friendly relations with foreign states, no reasonable threat to public order, decency or morality, and no reasonable restriction in relations content of court, defamation, or incitement to an offense.
“Accordingly, under the Constitution of the People’s Republic Bangladesh, Mr. Choudhury enjoys absolute freedom of speech, expression, and the freedom of the press is absolute in the situation of Mr. Choudhury.
“The jurisprudence of free and democratic societies and modern constitutional democracies expressly guarantees freedom of speech and expression.
iv. The Supreme Court of Canada recognizes the prominence of the freedom of expression in a free and democratic society: “It is difficult to imagine a guaranteed right more important to democratic society than freedom of expression. Indeed a democracy cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions. The concept of free and uninhibited speech permeates all truly democratic societies and institutions. The vital importance of the concept cannot be over-emphasized.”[1]
“Indeed, Mr. Choudhury should be recognized as a champion of democracy in the People’s Republic Bangladesh. It is the voice of dissent that has already allowed free and democratic societies to transcend all others. Mr. Choudhury is not a criminal, but a voice calling for new ideas and opinions, and his positive impact on the People’s Republic Bangladesh cannot be over-emphasized.”
“International law also comprehends the importance of the freedoms of speech and expression.
v. Universal Declaration of Human Rights: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
1. As has been stated, the People’s Republic of Bangladesh is a State Party to UDHR, and is thereby legally-bound to its language.
vi. International Covenant on Civil and Political Rights: “1. Everyone shall have the right to hold opinions without interference; 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”
1. As has been stated, the People’s Republic of Bangladesh is a State Party to ICCPR, and is thereby legally-bound to its language.
vii. United Nations General Assembly: “Freedom of information is a fundamental human right and…the touchstone of all the freedoms to which the United Nations is consecrated.”
1. In part, the freedoms of speech and expression are valuable because speech and expression inform the public. International law guarantees the freedom of information as a fundamental human right.
2. Accordingly, an undue limitation of speech and expression is a violation of the human rights of all would-be recipients of said speech and expression.
3. Mr. Choudhury merely provides information of Bangladeshi citizens to which they would otherwise have little or no access otherwise. An attempt to silence Mr. Choudhury in this situation violates the human rights of all Bangladeshi citizens.
viii. The European Court of Human Rights (“ECHR”) recognizes the key role of freedom of expression: “[F]reedom of expression constitutes one of the essential foundations of [a democratic] society, one of the basic conditions for its progress and for the development of every man … it is applicable not only to “information” or “ideas” that are favourably received … but also to those which offend, shock or disturb the State or any other sector of the population. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society.’”
1. The learned European Court points out that freedom of expression is more than a nebulous guarantee for favorable speech and expression.
2. Instead, the freedoms of speech and expression are most important when the speech and expression to be protected are offensive, shocking, or disturbing to the State.
3. In this case, the People’s Republic of Bangladesh claims that the speech and expression of Mr. Choudhury falls into this highly protected category of speech and expression.
4. As the learned European Court points out, the protection of the speech and expression of Mr. Choudhury is necessary for purposes of pluralism, tolerance, and broadmindedness, which are essential to a free and democratic society.
ix. The Inter-American Court of Human Rights: “Freedom of expression is a cornerstone upon which the very existence of a democratic society rests. It is indispensable for the formation of public opinion. ... [I]t can be said that a society that is not well informed is not a society that is truly free.”
1. Essentially, the statements of the Inter-American Court of Human Rights specifies by implication that if Mr. Choudhury is silenced, then the People’s Republic of Bangladesh cannot rightly be considered a free and democratic society.
x. The African Commission on Human and People’s Rights: “Freedom of expression is a basic human right, vital to an individual’s personal development, his political consciousness, and participation in the conduct of public affairs in his country.”
1. The learned African Commission is taking note of the fact that no society is free and democratic until the freedom of expression is sufficiently guaranteed.
2. Mr. Choudhury’s treatment in the present case demonstrates that his freedom of expression has not been adequately protected.
i. Freedom of the press is a highly respected and integral aspect of the freedom of speech and expression.
i. The Inter-American Court of Human Rights: “It is the mass media that make the exercise of freedom of expression a reality.”
1. In other words, the freedoms of speech and expression are empty, meaningless, and devoid of reality without a free press, or mass media.
ii. The European Court of Human Rights: “[I]t is … incumbent on [the press] to impart information and ideas on matters of public interest. Not only does it have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of ‘public watchdog.’”
1. The notion described by the learned European Court recognizes the role of the free press as guarding the right to information enjoyed by all citizens of free and democratic societies.
iii. The U.S. Supreme Court has consistently held that the freedom of the press necessarily includes the freedom to publish unpopular ideas: “Freedom to publish means freedom for all and not for some.”
1. The learned Court recognizes that all publishers enjoy freedom to publish, and not merely those who support popular positions.
iv. The U.S. Supreme Court: “[T]he interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.”
1. The cost of censorship is severe, and the benefit of the freedom of expression through a free press in a democratic society is abundant.
v. The U.S. Supreme Court: Government agencies “do not have power or authority to subordinate speech and press to what they thing are ‘more important interests.’”
1. In a free and democratic society, only the public can properly make a choice regarding what is an important issue. This choice is properly made by members of the public choosing to listen or not listen to certain expressions.
2. The government in a free and democratic society cannot limit speech based on interests it defines as more important than others.
3. In the case at bar, the Government of the People’s Republic of Bangladesh has made an oppressive decision that the ideas he expresses are not as valuable as other ideas.
4. Accordingly, the present limitation on Mr. Choudhury’s freedom of expression is improper.
vi. The U.S. Court of Appeals for the Fourth Circuit: Freedom of the press must include “the ability of the press to scrutinize and report on government activity…National security is public security, not government security from informed citizens.”
1. Clearly, Mr. Choudhury poses no threat to public security. Instead, the government is concerned for its own security due to the efforts of Mr. Choudhury to inform the public regarding specific issues of interest to him.
2. The desire to maintain security of the government is not a valid ground for limiting the freedom of the press.
vii. The Constitutional Court of the Republic of South Africa: “The role of the press is in the front line of the battle to maintain democracy. It is the function of the press to ferret out corruption, dishonesty and graft wherever it may occur and to expose the perpetrators. The press must reveal dishonest mal- and inept administration. It must also contribute to the exchange of ideas already alluded to. It must advance communication between the governed and those who govern. The press must act as the watchdog of the governed.”
1. The learned South African Court recognizes, again, that freedom of the press insures the valuable human right to information of all citizens that the press serves.
viii. The Constitutional Court of the Republic of South Africa: “The success of our constitutional venture depends upon robust criticism of the exercise of power. This requires alert and critical citizens. But strong and independent newspapers, journals and broadcast media are needed also, if those criticisms are to be effectively voiced, and if they are to be informed with the factual content and critical perspectives that investigative journalism may provide... It is for this very reason that the Constitution recognizes the special importance and role of the media in nurturing and strengthening our democracy.”[2]
1. Furthermore, it is through a free press that the freedom of expression of every citizen is realized. It is also through a free press that said free expression becomes informed, which is in the interest of every free and democratic society.
j. The freedom of religion is also a highly protected embodiment of freedom of speech and expression in free and democratic societies.
i. Though the freedom of religion is dealt with expansively in the discussion of blasphemy, below, it is important to note at this point that the freedom of religion is as vital to a free and democratic society as any other form of speech and expression.
“Sedition, blasphemy, and treason place severe restrictions on the freedom of speech and expression, and are substantially narrow in a free and democratic society, if the charges exist at all.”
“However, as applied to Mr. Choudhury, the penal code in the People’s Republic Bangladesh fails to recognize, let alone implement, the values of a free and democratic society.”
“Sedition, blasphemy, and treason must be applied only in rare circumstances following a compelling showing by the Government.
k. Freedom of speech and freedom of expression are the cornerstones of any free and democratic society.
l. Sedition, blasphemy, and treason are severe limitations on the freedom of speech.
m. Therefore, sedition, blasphemy, and treason may only be applied in a free and democratic society when a compelling showing is made by the government of the need to limit speech and expression.
n. The People’s Republic Bangladesh is a free and democratic society, and must make a compelling showing of need to apply charges of sedition, blasphemy, and treason.
o. The UN Human Rights Committee approves of a three-part test developed by the European Court of Human Rights to determine whether a limitation on speech is justified.
i. The limitation on the freedoms of speech and expression by laws such as those for sedition, blasphemy, and treason, must be provided for by law and “formulated with sufficient precision to enable the citizen to regulate his conduct.”
1. Here, the sedition, blasphemy, and treason laws are not sufficiently defined, and are void for vagueness.
2. Mr. Choudhury had no way to regulate his conduct because sedition, blasphemy, and treason, do not appear in the legal framework of the People’s Republic Bangladesh as they are currently used against him.
3. Instead, the Constitution of the People’s Republic Bangladesh properly protects the freedoms of speech and express, including the freedom of the press and of religion.
4. Because the sedition, blasphemy, and treason laws of the People’s Republic of Bangladesh as applied against Mr. Choudhury do not meet this first threshold, the charges must be dismissed as against Mr. Choudhury.
ii. The limitation with the freedom of speech must pursue a legitimate aim listed in the ICCPR, which allows for restrictions when necessary: “(a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.”
1. Mr. Choudhury has done nothing to violate the human rights of another, and therefore limitation of his speech does not fall within sub-section (a).
2. Likewise, Mr. Choudhury’s conduct does not threaten national security, public order, public health, or public morals, each of which must be read as a narrow exception to the general protection of the freedoms of speech and expression.
3. Because the charges of sedition, blasphemy, and treason, as applied against Mr. Choudhury do not fall within an exception provided for by Article 19(3) of the ICCPR, this second threshold is not met, and the charges must be dismissed.
iii. Finally, the limitation placed on speech and expression must serve a pressing social need that is justified with relevant and sufficient reasons, and the limitation must be proportionate to said pressing social need.
1. The limitation placed on the speech and expression Mr. Choudhury in the present case serves no pressing social need.
2. Furthermore, even if there is a pressing social need that is being served by restricting Mr. Choudhury’s speech and expression, an insufficient quantity and quality of relevant reasons have been introduced to justify the pressing social need.
3. Finally, even supposing that a pressing social need has been shown by a sufficient quantity and quality of relevant reasons, the present application of the limitation against Mr. Choudhury in the form of sedition, blasphemy, and treason is utterly disproportionate to any legitimate pressing social need that the People’s Republic of Bangladesh is pursuing.
4. In fact, the People’s Republic of Bangladesh is prepared to sentence to death Mr. Choudhury for peacefully advocating an alternative view of religion and politics.
5. Because this threshold is not met, the charges of sedition, blasphemy, and treasons must be dismissed as applied against Mr. Choudhury.”
Despite such legal opinion from an internationally known lawyer, the Bangladeshi court and government are adamently pressing the charges forward with the one and only goal of appeasing Islamists.
During the general election on December 2008, the present Grand Alliance led by Bangladesh came to power with a huge mandate from the people of Bangladesh, just because of its secular ideology and commitments to combat radical Islam. But since they came in power, there has been no sign of any action by the present government to combat religious extremism. Rather, like all other previous governments and regimes, the present government also continues to behave like appeasers of Islamists.
On July 22, 2009, I shall go back to the trial court. According to my lawyers in Bangladesh, the government is determined to conclude the trial as soon as possible. Surely, no one knows what the verdict will be. But, of course, seeing the past track records, we cannot hold any hope of anything good. The court is not applying its judicial mind. Instead, everyone is trying to appease the Islamists.
