In recent times, media have started publishing photo(s) and details of people suspected or accused of crime resulting in naming and shaming preceding a judicial process. Such trend is worrying and unprofessional as it violates not only the fundamental rights but also legal rights. Even more worrying is the publication of only a selected few that could construe as bias reporting and discriminatory undermining the basic human rights of these people.
No freedom is absolute and freedom of media is not an exception. Media must enjoy the right to exercise the democratic culture as Bhutan embarks on the journey of democracy. However, such democratic culture must stay within the limits of the Constitution. Fountain of justice is the prerogative of judiciary and not Media. Therefore, media has neither constitutional nor legal right to punish any person including naming and shaming.
With the adoption of the constitution of country, Bhutan’s criminal justice system rests on Article 7 of the Constitution, the Fundamental Rights. This means that every person has right to life, liberty and may be taken only with due process of law. He or she also has right to security, equality before law, equal protection of the law, protection against discrimination, presumption of innocence until proven guilty, protection against arbitrary or unlawful interference with his privacy, home or correspondence and unlawful attack on his honour and reputation. Due process of law and fair trial are cardinal rules of criminal justice. Thus, media by naming and shaming of any person without due process of law, no matter how heinous the crime that person might have committed or suspected to have committed or accused of committing would tantamount to violation of his numerous fundamental rights under the Constitution. It could cause an accused or suspect and his or her family members an irreparable damage to their reputation, unimaginable mental trauma and stigmatization in the society particularly a small society like ours.
Researches around the globe revealed that, the media trials tend to influence judges and subconsciously a pressure is created to affect the sentencing. Courts have stated that, in the eyes of public, media trial provokes public hysteria akin to the extent of lynching mob making the fair trial nearly impossible and regardless of the result of the trial, in public perception, the accused is already held guilty and would not be able to live the rest of their life without intense public scrutiny. Thus, it is now a universal settled law that when a conflict arises between fair trial and freedom of speech, the former prevailed because the compromise of fair trial for a particular accused will cause them permanent harm whereas the inhibition of media freedom ends with the conclusion of legal proceedings.
Besides the Constitutional Rights, any suspect or accused also enjoys numerous legal rights. Section 96.2 of the Civil and Criminal Procedure of Bhutan states, “Finding of guilt against one or more of the parties can only be given when the prosecution to the full satisfaction of the Court has established a proof beyond reasonable doubt.” And Section 207 of the Penal Code of Bhutan requires that a person can be punished only if the elements of the charge where guilt beyond reasonable doubt have been proven to full satisfaction of the court. By Section 6 of the Penal Code of Bhutan, a person can be convicted of a criminal offence and shall not be sentenced otherwise than accordance with this Penal Code. Thus, where does the media derive jurisdiction of punishing any suspect or accused through naming and shaming even before their trial begins.
The Media must remember that for any suspect or accused to be punished, the prosecution has duty not primarily to convict, but to seek justice proving the accused beyond reasonable doubt while the accused must be accorded to defend any accusations by all lawful, fair and honorable means, so as not to deprive his or her of life or liberty, through due process of the law.
The preamble of the Penal Code states that the law is enacted to “perpetuate good and chaste actions, correct those, who have gone wrong,” guilty not to escape and innocent not to suffer and to secure justice to ourselves and our posterity.” Therefore, how does the pre-trial naming and shaming by media justify such rights of the accused or suspect. Naming and shaming of suspect or accused before formal court proceedings also undermines the pre-trial as well as other rights enshrined in the Civil and Criminal Procedure Code including determination of sufficient cause of accusations made, whether to plead guilty or not (Nolo Contendere).
The Code of Ethics for Journalists framed under Section 26(d) of the Bhutan Information, Communications and Media Act prohibits the journalist from reporting judicial proceedings that might affect or alter the trial unfairly or publish anything that is defamatory of any person or organization. The Code also requires the journalist not to identify relatives or friends of any person accused or convicted of crime, or imply guilt by association in relation to such relatives or friends, unless there are compelling reasons, such as relevance to the story being published, or evidence that might reasonably point to such guilt. The Code further mandates that the journalist stand by the principle that all persons are equal before law.
It is even more worrying when the media try to name and shame few selected as in the recent cases, the principle of all persons to be treated equal before law and equal protection of law is completely ignored. In fact, such reporting would warrant a suit against such reporter or media for the damage the suspect or accused and his family suffered in the society.
In a nutshell, media must remember that presumption of innocence of an accused is a legal presumption and should not be destroyed at the very threshold through the process of media trial and that too when the investigation is pending. The freedom of the press should not degenerate into a licence to attack litigants and close the door of justice nor can it include any unrestricted liberty to damage the reputation of respectable persons.
Contributed by Sonam Tshering
The writer is a Faculty of Law, JSW School of Law in Thimphu