There is a legal principle that goes ‘presumption of innocence’ which refers a person is considered ‘innocent until proven guilty’. But at the current age of media the principle is contravened as following an offence any accused is straight away viewed to be guilty. Media trial is one of the main reasons behind this kind of trends.
In the late 20th century and early 21st century, the phrase media trial or trial by media became popular to describe the impact of media in running case or trial by televising sensitive facts or materials of any case and newspaper coverage on a person by creating a widespread perception of guilt or innocence before or after a verdict in a court.
Media absolutely plays a vital role in democratic countries but over influence of media in the legal sector affects it. Most of the time, it makes a negative effect in running cases and creates obstacles in whole proceedings when sensitive case gets highlighted at media like televisions, newspaper, and social media.
To check the history of media trial, we must go back to the 20th century. In 1921, media trials came into existence and made its first impact. Roscoe Arbuckle, an American comedian and film actor was the first victim of trial by media. In 1921, a case was filed against Roscoe Arbuckle at the accusation of murdering and assaulting Virginia Rappe. At that time, newspaper being biased, published their news against Roscoe as if he already were a criminal though he did not commit the crime. The incident destroyed his whole acting career on which he was socially based. During the trial people created pressure to the court that he could not avail of any bail. However, after third trial the advocates of empirical became able to prove him innocent on April 12, 1922.The jury acquitted Arbuckle of manslaughter charge and gave the statement:
“Acquittal isn’t enough for Roscoe Amber Cole and we feel that a great injustice had been done to him. There was not any slightest proof adduced to connect him in anyway with the Commission of a crime. We wish him success and hope that the American people will take the judgement of 14 men and women that Roscoe Arbuckle is entirely innocent”.
As Bangladesh has adopted common-law system, none can be held guilty unless s/he is proven guilty before court of law. In pursuant of it, right to fair and public trial has been provided in Article 35(3) of the constitution of Bangladesh. Public has an expectation of being satisfied on the matter of fair judicial proceedings so that trial has been made to be held in public that ensure the judicial accountability to the citizen.
The problem is that media sometimes builds a public opinion on an issue which is prejudicial to the administration of justice and defamatory to the accused. Besides, trial by media not only put impact on the accused but also on a party who is presumed to be involved. It is the duty of the media to cover any news which is pertinent to public interest but not that which results in a proceeding itself as opposed to that of judiciary. Conducting a fair trial is one and only duty of the Court conferred upon it by the constitution.
A controversy arose as to the presentation of the accused before media after being arrested. The way they are presented before media without any judicial proceeding creates an assumptive notion of guilt in public view which is a gross defamation. In 2012, High court division ordered law-enforcing agency not to present any suspicion in media before the charge against him is proven in judicial trial.
Article 39 (2) (b) of the constitution of Bangladesh laid down the provision for freedom of press. Freedom of press also includes freedom of speech and conscience. The confusion is, if media trial is made liable to be contravention of law, whether it violates the freedom of press under Article 39 (2) (b). Every right exercised by a person is subject to reasonable restriction so that it does not harm that of the others. Article 39 (2) clothed the freedom of speech and conscience and that of press in reasonable restrictions in the interests of:
- The security of the state
- Friendly relation with foreign state
- Public order
- Decency or morality
- Preventing contempt of court, defamation, incitement of the office
Media trial is closely connected to points ii and v. For example, In the rape case of a student at Dhaka University, the suspect (Majnu) after being arrested was brought before the media and the media made a trial that the suspected accused was the real perpetrator of the accusation. After some days, the media again launched another investigation and reported that the information provided against the suspect earlier was not authentic which caused a severe public disorder during the proceedings. People were divided into classes; one side was to hang him to death and other to acquit him on the presumption of innocence which ultimately led to chaos and public disorder.
Secondly, Trial by media, causing hamper to the public order, can also be the bar to fair judicial proceeding. Any activities by the person or authority, causing interference to the proceeding of court, amounts to the accusation of “Contempt of court.” “The Contempt of Court Act, 2013” has defined the concept of contempt of court in section 2 (8) (a), (b), (c). Especially Article 2 (8) (b) & (c) goes that any demonstration, emblem, or sound, in writing or oral, which evidently or probably cause the interference or hampers to the judicial proceedings amount to the charge of contempt of court.
Throughout the world, trial by media and public seems to be an agitating problem. In the most recent case, the death of Sushanta is still a mystery and under the investigation of police, but media has made a coverage of the probable involvement of his girlfriend with his death. The coverage has raised a public rage against his girlfriend and now public are judging her as the perpetrator behind the death.
In India, right to fair trial is enshrined in Article 21 of the Indian constitution. Right to freedom of conscience and speech included in Articles 19 & 25 but is made subject to restriction in interest of public and security. Interference with the Article 21 results in violation of the Constitution. The Contempt of Court Act, 1971 in India laid down punishment for barring the fair proceedings of the court. Even tagging someone without proper justification that undermines one’s reputation is a criminal offence under the Indian Penal Code, 1860.
The famous trial of O. J. Simpson in 1995 was another case which was highly influenced by the media. O. J. Simpson was acquitted of the murder of his ex-wife Nicole Brown and her friend Ronald Goldman. When the trial ended, Simpson was found not guilty. In the running time of this case, media diverted the mind of the general people alongside racial line where black started to believe the innocence of Simpson and white guilt of him. In October, even though he was acquitted of the charge, the white netizen firmly opposed the verdict, and a social breakdown took place after that.
Despite these incoming influences, judicial officers are oath bound to act rationally and further the proceedings fairly. As famously observed by justice A.B.M. Khairul Hoque: “we the judges have got the obligation to safeguard the constitution and we are oath bound to do it, no matter who is hurt. It is better to hurt a few than the country. In any case, the truth and only the truth must prevail.” Again, in 1807, Marshal C.J. Stated that “As soon as a judge entered to a court, his mind should be open to the testimony produced in trial before him. He should not bind his mind into an impression that shut off his scope to concentrate in the testimony.” However, it has already been noted that media coverage, in this age, plays a pivotal role in determining human being mind. Judicial officers are also human being and so there is a vast probability of interference in taking of their decisions fairly.
Enthusiastic media is necessary one for unravelling truth but when it deviates from the limit, it becomes a headache. In this subcontinent including Bangladesh, people are so curious on an issue that they cannot hold their patience on the heat of the moment. Without any justification of the source, they make a trial themselves and tag one with the term “guilty”. Beyond social media, news media cannot also be said to be innocent. Sometimes, the way they cover a news do nothing but merely represent one as a perpetrator defaming his reputation in public view. First, we are to be aware of in using social media. We cannot sentence someone guilty merely on a hypothetical base without being trialled in court. Secondly, news media should be controlled strictly especially in making a trial. Trial by media is also violative of section 57 of the “ICT Act, 2013”. Unfortunately, Charges of contempt of court, violation of Article 39 and Article 57 of ICT Act for such an incident as public or media trial are rarely brought in our country. The applicability of these acts needs to be more extensive to bring this headache under the control. To conclude we should recall “Justice delayed is Justice denied.”
Writer:
Fahim Uddin Raihan & Sazzad Hossain, LL.B (Hon’s) (2nd year), Department of Law, University Of Chittagong.
Endnotes:
- https://www.smithsonianmag.com/history/the-skinny-on-the-fatty-arbuckle-trial-131228859/
- Constitution of people’s republic of Bangladesh
- Principles of Constitutional law by Sarkar Ali Akkas
- Constitutional Law of Bangladesh by Mahmudul Islam
- An Introduction to Constitutional law of Bangladesh by Jashim Ali Chowdhury
- https://www.crf-usa.org/bill-of-rights-in-action/bria-11-1-a-is-a-fair-trial-possible-in-the-age-of-mass-media
- https://www.google.com/amp/s/www.bbc.com/bengali/news/2015/08/150820_rh_media_trial.amp
- https://www.google.com/amp/s/amp.dw.com/bn/%25E0%25A6%25B8%25E0%25A7%258B%25E0%25A6%25B6%25E0%25A7%258D%25E0%25A6%25AF%25E0%25A6%25BE%25E0%25A6%25B2-%25E0%25A6%25AE%25E0%25A6%25BF%25E0%25A6%25A1%25E0%25A6%25BF%25E0%25A7%259F%25E0%25A6%25BE-%25E0%25A6%259F%25E0%25A7%258D%25E0%25A6%25B0%25E0%25A6%25BE%25E0%25A7%259F%25E0%25A6%25BE%25E0%25A6%25B2/a-50224204
- http://legislative.gov.in/documents/legislative-references/list-of-acts-yearwise
- Constitution of India.