Freedom of press is a fundamental right which is guaranteed under article 39 of the Constitution of Bangladesh. However, this freedom is not absolute and can be exercised subject to a reasonable restrictions imposed by law in the interests of state security, friendly relation with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. In addition, freedom of press does not allow the mass media to conduct the trial of a case. But in many instances, media has been accused of conducting the trial of the accused and creating a widespread perception of guilt or innocence before or after a verdict in a court. This type of media trial impinges the well-established principle of criminal law that a person is presumed innocent until proven guilty.
As the burden of proof lies on the prosecution, so it is the duty of the prosecution to disprove the presumption of innocence by proving all the elements of offences beyond reasonable doubt. Sometimes, it happens that media covers the news on criminal incidents by prejudging the accused as convict. But in criminal proceedings, after completion of investigation, an accused may be discharged or even after full trial he may also be acquitted. So, reporting on pending criminal cases always includes a serious risk of prejudicing the rights of an accused. Moreover, journalists are publishing photographs, previous crime records and self incriminating statement of the accused which not only interfere in the justice delivery system but also intrude to the privacy of the person.
Now-a-days, law enforcing agencies have a tendency to bring the accused in media briefing session to give confessional statement. If such statement is made in the custody of the police officer shall not be proved against the accused.(Section 25, Evidence Act, 1872) Only a statement is made before Magistrate fulfilling the requirements of section 164 Cr.P.C. will be admissible in the court of law. Ultimately, a media report containing such confessional statement will give an impression to the public that the accused has confessed his guilt, so he must be punished. This type of media publicity also increases the risk of biasness and influences the trial judges’ sense of impartiality. In consequence, the mandate of article 35(3) of the constitution is being affected. Article 35(3) provides every person accused of a criminal offence shall have the right to a public trial by an impartial court.
When a journalist is reporting on a case under trial he has to comply with the professional ethics as enshrined in the Code of Conduct, 1993 which provides, ‘it is the responsibility of the newspapers to publish news relating to case under trial and to publish the final judgment of the court to reveal the actual picture of issues relating to trial. But a journalist shall refrain from publishing such comment or opinion as is likely to influence an under trial case, until the final verdict is announced.’ (Rule 16) It will amount to contempt of court if any writing or reporting is published to obstruct or interfere with the due course of justice or the lawful process of the courts such as commenting on a case pending in a court. So, the guilt or innocence of an accused will be determined by the court, media report will not indicate anything on this issue.
Specific restrictions can be found in relevant legislations not to publish the name and identity of the victims. The publicity of particulars will have detrimental effect to the process of reintegration of victims in the society. Section 14(1) of the Suppression of Oppression of Women and Children Act, 2000prohibits the publication of the name of a victim of sexual offence. Non-compliance with this sub section will lead to the imprisonment for a period of maximum two years or fine not exceeding two lacs taka or both. There is a special provision for children in the Children Act, 2013 which imposes restriction not to report in any newspaper which shall disclose any particular of any case or proceeding in which a child is involved and which leads directly or indirectly to the identification of such child (Section 28).
If a journalist publishes an objectionable report, a petition of complaint can be lodged against him to the Chairman of the Press Council. (Regulation 8:1 of the Press Council Regulation, 1980) After conducting inquiry, if the Council finds the news is against the journalistic ethics may warn the concerned journalist or newspaper. (Section 12, The Press Council Act, 1974) In Motiur Rahman, Editor The Daily Prothom Alo v Prof. Dr. Syed Anwar Hossain, Editor, The Daily Sun & Others, the Press Council discharged the complaint issuing a warning against the Daily Sun to follow and maintain the standard of journalistic ethics. (Bangladesh Press Council Complaint No.3/2012)
At this moment, there is no Code of Conduct for the broadcasting media (i.e. radio, television)journalists in Bangladesh. In 2014, the government approved National Broadcasting policy to ensure transparency and accountability in broadcasting media. With a view to establish a national broadcasting commission and to punish for unauthorized broadcasting, the Broadcasting Act, 2016 was drafted which has not been passed by the Parliament yet. Moreover, to provide guidelines for on-line based news portals, the National Online Mass Media Policy is still in preparatory stage.
From the above discussion, it becomes clear that media trial on cases has huge negative impacts on the administration of justice. Effective rules and regulations are required to guide the broadcasting media journalists for delimitation of issues of pending cases on which they can report. The journalist covering legal news must be aware of the anonymity provisions and the professional ethics. The Press Council should be more vigilant to ensure the compliance of Code of Conduct by the journalists at the time of reporting on pending cases. The court can also exercise contempt procedures to prevent the interference of media in the due process of justice.
Writer: Ahmed Ehsanul Kabir, Barrister at Law, Assistant Professor of Law,