Justice and media trials

One of the key components of good governance is the rule of law. The independence of the judiciary, the impartiality of judges, adherence to proper legal procedures, and the harmonization of relevant factors ensure the administration of justice.

The rule of law signifies equality before the law for all individuals and the primacy of the law over everything. The concept of the rule of law encompasses the idea that irrespective of religion, caste, class, or any other distinctions, everyone is equal in the eyes of the law.

Within the existing judicial system of the country, the criminal justice system serves its primary purpose of suppressing wrongdoings and upholding discipline. However, it is also worth noting that even if a hundred criminals are acquitted, no innocent person should be subjected to punishment.

The realization of law's enforcement, aimed at curbing wrongdoing and upholding a policy of discipline, is facilitated through the process of adjudication. In the country's existing criminal justice system, the roles of judges, police, prosecutors, and legal professionals are interwoven, and their collective efforts ensure the functionality of military judicial affairs.

Within the framework of the prevalent criminal justice system, the law enforcement agency plays a significant role. This is because, according to Article 31 of the Constitution concerning the right to protection of life, liberty, body, reputation, and property, the law ensures the rights of citizens to enjoy legal protection. The primary objective of the law enforcement agency is to uphold the fundamental rights of citizens in accordance with the constitution, thereby fulfilling its constitutional responsibility.

The consequences of a flawed investigation by the law enforcement agency leading to a person's wrongful accusation and subsequent harm are often only understood by the victim and not comprehended by others. An incident involving a person named 'Jahalam' in a false case has recently emerged through media, illustrating this issue. A few years ago, a student of Dhaka University faced a similar situation named 'Helal.' He is now an officer in the Bangladesh Civil Service (BCS). Numerous such examples exist that underscore this concern.

The country's existing military justice system delineates cases of actionable and non-actionable offenses. In cases of actionable offenses, the law enforcement agency of the military can make arrests without a warrant. Conversely, in non-actionable offenses, individuals cannot be arrested without a court order, meaning no arrests can be made without a warrant. The matters of arrest, detention, and interrogation are defined in Article 33 of the Constitution, Sections 46-103 of the Code of Criminal Procedure, and Sections 6(1)-6(16) of Chapter Six of the Police Rules for Investigation. Additionally, the Supreme Court's Appellate and High Court Divisions have issued various directives in this regard.

However, deviating from these norms, sometimes in a very simple case, arresting someone as a violent accused and recovering evidence from his residence, the members of the law enforcement forces publicize and publish through the media in a way that is not in accordance with the law.

Apart from this, many times it is seen that the way law enforcement forces speak in the media about the information obtained from the accused person in any sensitive case in their custody is also a form of contempt of court.

In this regard, in 2012, after a lower court judge in Feni was attacked and detained, the High Court provided directives, and on May 16, 2019, the Appellate Division of the Supreme Court issued guidelines to the media concerning the coverage of pending cases. On the other hand, the Women and Children Repression Prevention Act 2000, under Section 14, prohibits the dissemination of images of any victim through media and, according to Section 28 of the Child Act, prohibits the disclosure of the identity of any child, both of which have legal implications.

Presenting an accused before the media in this manner can lead the general public to perceive them as guilty, fostering a prejudiced impression. Consequently, the person, along with their family, faces various personal and societal challenges, ranging from social ostracism to familial disintegration.

It is important to remember that, from a legal standpoint, an accused individual is not the same as a criminal. Until proven guilty through a judicial process, it is inappropriate to label someone as a criminal. According to Article 35 of the Constitution, until the conclusion of the trial process, meaning until the court completes the trial proceedings, if there is a media trial; the subsequent court proceedings are often influenced because judges are also members of society and citizens of the state and may become conscious of these issues in the case.

On the other hand, it is often observed that even in cases of serious crimes, an accused individual remains untouched and is not completely held accountable. This can raise questions in the minds of people about whether everyone is truly equal in the eyes of the law.

According to Section 161 of the Code of Criminal Procedure, a confession made to the police is not admissible as evidence under Section 25 of the Evidence Act. Even under Section 164 of the Code of Criminal Procedure, a statement made to a magistrate is not treated as evidence under Section 3 of the Evidence Act. Moreover, provisions such as Sections 26, 30, 114 (b), 133, 138, 146, Section 337 and 338 of the Code of Criminal Procedure, and Section 283 of the Police Regulations (1943) allow for the admissibility of such confessions under certain circumstances.

However, even in Section 164 of the Code of Criminal Procedure, the provision of taking such confessions is subject to various controversies, as these have been found to be false in some cases and have been challenged previously. This has led to the dissemination and publication of such news in various media outlets.

Notably, in order to establish justice, the Code of Criminal Procedure, under Sections 167 and 344, allows the court, under certain circumstances and upon the application of the law enforcement agency, to issue orders for police custody (remand) of an accused individual. However, even in such cases, the court must remain vigilant and cautious. While granting remand based on the application of the law enforcement agency, sometimes it might result in being beneficial, but in some cases, it can also have adverse effects.

In the context of the federal judicial system, several factors, including the accused individual's age, character, and behavior, are relevant when considering their trial. Additionally, their motive behind the crime is also taken into account. Therefore, it is often said that despise the offense, one is not considered an offender until proven guilty. In the establishment of judicial integrity, the court must consider various aspects of the law. Emotional judgments cannot uphold judicial integrity.

In the context of media trial, due to the absence of the opportunity for self-defense as per Article 33(1) of the Constitution, only an emotional "media trial" can take place, and the general public can form their own judgment and express opinions accordingly.

It is well understood that offenses have legal significance. In the realm of justice, it is highly relevant to note that all offenses cannot be treated equally, as they are contextually diverse. On the other hand, it is imperative to remember that an accused is not necessarily an offender in the eyes of the law. Legal proceedings might leave an acquitted person with a sense of revenge, even though they were proven innocent, leading to them being treated as a retaliator, and this might transform an innocent person into a fearful criminal in due course. Such instances are prevalent in our society.

In the context of criminal cases, there must be extreme caution before accusing someone of a crime. This is because no one has the right to infringe upon an individual's social dignity and fundamental rights. It is not acceptable to harass anyone in the name of justice.

The law enforcement agencies are the asset of our nation. They diligently fulfill their responsibilities with the aim of safeguarding the lives and property of the people. However, in certain cases, the law enforcement agencies' members can play a detrimental role in criminal activities, which can lead to negative perceptions about them. Nonetheless, there are numerous instances where individuals within the scope of the law's jurisdiction have been observed.

For example, members of the law enforcement force involved in the seven murder cases in Narayanganj, DIG Mizanur Rahman in the case filed by the ACC, OC Pradeep in the murder case of retired Major Sinha, there are many such examples who have been brought under the law and faced trial. The principle of 'all equal before the law' will be established at all levels of the country, this is the prerequisite for the rule of law.

On the other hand, an independent media or mass media acts as a mirror of society. The mass media is considered as the fourth pillar of the state. Mass media has played an immense role in building a fair and prosperous society.

Although Article 39 of the Constitution mentions the freedom of the media, there are some exceptions to that freedom. That is to say, there is a prohibition against reasonable obstruction imposed by law in the interest of national security, friendly relations with foreign states, public order, decency or morality, or in the interest of contempt of court, defamation or incitement to crime.

On the other hand, humans are always drawn to forbidden subjects. Therefore, it is better not to bring prohibited topics before the public because this can attract everyone's attention including young boys and girls and lead them into danger. In such cases, the media also has a responsibility.

Although many have observed instances where members of law enforcement agencies and the media have deviated from their roles in the past, it's important to note that not everyone is above the law. Therefore, repeatedly highlighting personal matters of individuals in the media is never justifiable. Such actions do not lead to a commendable outcome in any way. This can easily lead to a "media trial" that targets the accused individual.

Furthermore, in our judicial system, digital data is still not admissible as concrete evidence. Therefore, these aspects cannot play a role in the trial process. However, individuals vested with governmental authority can occasionally collect digital data due to justifiable reasons. Hence, refraining from disseminating and propagating personal matters in a sensationalized manner through the media is commendable. In this context, both the media and law enforcement agencies have an essential role to play.