Rights Watch
Media trial revisited
Both the freedom of press and right to fair trial are fundamental rights guaranteed in Bangladesh constitution. Right to fair trial is absolute one whereas freedom of expression is subject to reasonable restrictions. Though media activism plays supporting role to achieve fair trial, at times biased and unregulated media interference to the pending cases may create substantial risk to the proper of administration of justice.
History of media trial
Freedom of press and fair trial are basic and fundamental which the state is supposed to refrain from interfering. However, in practice these two set of rights very often come into conflict. The dilemma that exists between these rights came into light quite some time ago- as early as 1440 when printing with movable type was invented. Since then with the expansion of mass communication through printing and other means, the free press and fair trial conflict developed tension and difficulties in the administration of justice. This primitive idea has started its formal journey in UK and USA in the late 20th and early 21th century which drew attention of contemporary scholars. Subsequently, the modern form of pre-trial media perception on guilt or innocence of the accused developed. The phrase 'trial by media' gained formal currency in western countries during the proliferation of television news coverage in the 1960s.
Media influence on judges
In most liberal democracies including Bangladesh, conflict arises between the right of the press to comment on pending trials and the right of an accused to a fair trial. A question may arise whether the judge can be influenced by the excessive media coverage on issue pending before the court. It is generally recognised that a judge is beyond being influenced by what the media says. A common view is that a trained judge should be impervious to any internal or external factors, while the jurors who are not trained legal personnel are likely to be influenced by media coverage of the pending cases. Nevertheless, Justice Frankfurter observed that the influence of prejudicial material may be less on a judge than a jury; however, it would be mistake to exclude judges those sitting without jury [Pennekamp v Florida [1946] 328 US 331,350]. In UK & USA cases are mostly triable by the jury. In common law system, the juries are chosen from common men who determine the question of fact while the judges decide the application of law. Though jury system was in vogue in Indian sub-continent, India (following KM Nanavati v State of Maharastra 1960) and Bangladesh abolished the system as jury tends to be susceptible to huge publicity and peer influence.
Though in Bangladesh the jury system is not in vogue now, magistrates are the presiding judges in the criminal courts of first instances. Their young age, lack of proper training, human susceptibility to sensation may be the reason that they are prone to be consciously or subconsciously influenced by the excessive news coverage on pending cases. Even though the press should restrain itself reasonably but possibility remains there to be indirectly influenced by the newspaper reports. Pressure groups sometimes create a situation in which even a trained judge may find it difficult to remain impartial. It may be pointed out that in Bangladesh, Judicial Magistrates preside over the criminal courts of first instance. They are appointed from young law graduates through a competitive public exam. Age bar is 32 years.
Confirming anonymity, most of the young judges conceded to the author that undue media publications may hinder the proper adjudication in many instances. For example, a magistrate may refuse to grant bail to the accused due to adverse media coverage. Justice Frankfurter observed that 'in securing freedom of speech, the constitution hardly meant to create the right to influence the judges or juries'. Reports of inadmissible evidence and sensational commentaries can in no way be justified by the people's right to know.
Role of media
In many instances the media appears to have created a widespread perception of the guilt of the person arrested even before the trial concludes. This is how media trial invades the unfettered fair trial right of the accused. Sometimes, the journalists fail to take necessary caution in exposing the juveniles, wounded, victims. At times the media publishes series of facts which are under investigation. Though in principle the media is not bound to disclose journalistic sources, such divulge of inquiry issue may hinder the outcome of the case. For example, the photographs or video footage of someone whose identification is likely to be subject of evidence in court can create substantial risk of serious prejudice to the administration of justice. In exceptional cases, publications which refer to character, previous convictions, confessions may also impede administration of justice. There are other aspects such as judging the guilt or innocence of the accused or discrediting the witnesses etc. which creates hindrance to the fair trial. Media interview of potential witnesses or accused may be admonished from legal point of view. Such media interference at least inadvertently misses the gap between the suspect, accused and convict.
New trends in media trial
Amidst heated tension between these rights, police directed media trial has also assumed intriguing dimensions in Bangladesh. Exposing an accused before the media under the aegis of law enforcing agency does in no way comply with the notions of law and ethics. Such tactics is quite denial to the few core rights of the accused as guaranteed in the constitution. It may be fairly questioned: have 'they' lost faith in the judiciary? Such disturbing facet of media trial under the auspices of state agency should be estopped immediately. It may be suggested that an independent commission may be formed to assess the issue. Further, compensation may be given to the victims of such menace. It may be mentioned here that couple of writs on the issue are now pending for hearing before the High Court Division of the Supreme Court.
Like other three organs of state namely, executive, legislature and judiciary, the media has assumed the characteristic of fourth estate in a democracy. In a nascent democratic polity like ours where not all organs often unable to take firm shape, media requires greater responsibility and freedom. It is suggested that media should not readily take the role of courts. It is the delicate duty of the judiciary alone to pronounce the innocence or guilt of the accused. A clear distinction between media trial and media activism should always maintain. Notwithstanding, investigative journalism to spearhead fair trial is always welcome.
The Authors are Joint District & Sessions Judge & Barrister-at-Law respectively.
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