Juxtaposing free press and free trial: Legal challenges

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Bangladesh is a democratic state where the freedom of expression is a core fundamental right in her constitution. Unlike India, our constitution has also specifically mentioned about the freedom of press considering it high value. The media is legally committed to people's right to know as to what is happening in the society. However, reasonable restrictions can be imposed on media freedom (Article 39 of the Constitution). On the other side, an accused is constitutionally endowed with the right to fair trial which can in no way be fettered (Article 35). Consequently, there appears a heated tension between these two set of rights, especially, when the media reports on pending cases before the court of law.
The term 'media trial' is indicative of perception of guilt or innocence of an accused by the media even before the conclusion of the trial. There is a basic distinction between media activism or investigative journalism and trial- by- media. In many cases the media activism obviously plays a commendable role in revealing the issues leading to judicial intervention. The backlogs of cases, inordinate delay in proceedings, timeless adjournments, lethargic role of the prosecution or the police, absence of protection of witnesses, endemic unfair practices among the court assistants, slow pace of investigation and trial are issues to be essentially scrutinised through the lens of the journalists. The media, by publicising these facts, acts as an accelerator which is contributing to the rule of law. Media activism of such nature is admirable.
On the other hand, the journalists are quite often seen pronouncing the innocence or guilt of the accused according to their perception and knowledge of the fact and law.  Such role of the media may be subject to critique from the legal point of view. When the trial has already set in motion, the media has no right to interfere with the administration of justice. Under the constitutional scheme determination of the guilt or innocence of a person is the function of the courts, which should not be readily usurped by the media before the trial.
The last couple of decades have witnessed a boom of capital centric print media, the sudden rise of private television channels in Bangladesh. 'However, due to lack of transparency in television channel licensing, with the persistent politicisation of television ownership and increasing commercialisation of television news- the democratising role of television is now being questioned'. Viewers may complain that at times objectivity is the causality in course of media reporting on crime, investigation, trial of the cases.
The Bangladesh Press Council is responsible for overseeing how the media personnel observe the journalistic code of conduct. It is noted that Press Council Code and Broadcasting Code in vogue in Bangladesh do not have explicit guidelines on reporting court proceeding. Ineffective legal norms governing the media conduct should be substituted by an exhaustive Code that offers greater freedom and responsibility for the journalists. At the same time it should be also borne in mind that reviewing the Code should in no way gag the press. As regards Broadcasting Code, till now there is no official body to see how far the Code is observed. A due process should be always maintained in resolving any issues affecting the freedom of press.  It is suggested that each case should be decided on its own facts and circumstances. Further, the media freedom should always prevail over every right save the privacy right, national independence, security and religious and societal harmony. Media and the judiciary do not have to be at loggerhead for the common good instead they should complement each other.  It is mentionable that there are numerous instances in developed countries where trial has collapsed due to wild coverage of the pending cases. In such a situation  denial of justice is not only the personal tragedy of the victim and informant, it also  jeopardises the popular faith over judiciary.
Bangladesh judiciary performs the delicate task of ensuring rule of law. It is a fundamental notion of law that justice requires to be seen to be done. Accordingly, the constitution (Article 35) along with  the existing  Code of Criminal Procedure, 1898 (Section 352) provides that court proceedings are basically open and subject to fair coverage by the media.  As such, the media as 'eye and ear of the society' has every right to make reporting or comment on pending issues before the court. It is widely accepted in common law regime that unlike jury (who are chosen from common men) an experienced and trained judge is not swayed even by the unfair media stories. In Bangladesh, time has come to reassess the canon that judges could be not influenced consciously or subconsciously by propaganda or adverse publicity.
Presumption of innocence of an accused is a legal presumption and that should not be destroyed at the very threshold through the process of media trial and that too when the investigation is pending. It also causes irreparable loss to the reputation of the accused by prematurely terming him or her guilty. In that event, it will infringe the constitutional protection of  an accused.  While unfair media interference on investigation and pending trial may at least obliquely obstruct the 'fair trial right' of accused, media activism  by exposing  the circumstances of the denial of justice may act as a catalyst to speedy trial which is also a constitutional mandate. Therefore, every attempt should be made by the print and electronic media to check that the distinction between trial- by- media and informative media is always maintained. As such, the journalists should not conduct parallel trial.

The writers are Joint District & Sessions Judge and Barrister-at-law respectively.