The idea of 'presumed innocent till proven guilty' of a crime is a cardinal principle of most legal systems across the world. Intertwined with the concept of presumed innocence is the concept of burden of proof. In criminal cases, the prosecution must prove beyond reasonable doubt that the accused is guilty as charged, if there is even some doubt about a person's guilt he must be set free. These are fairly basic principles that a legal system of a country must oblige with. Yet this somewhat academic issue of criminal jurisprudence can become relevant for the lay person in this communication driven world today particularly when a media trial takes place on a sensational matter. Recent controversy surrounding two victims/accused (their status is in dispute) Tahmid and Hasnat calls for reflection of the cardinal principles of criminal justice system and whether media trials have a potential to cause injustice in certain situations. It must also be stated in the same vein that looking at recent history, the social and mainstream media in Bangladesh have often raised voices against oppression and injustice and at times brought about substantive change to individual lives.
In this instance, the controversy surrounding the role of the duo in the July 1 terrorist attack can be briefly summarised as follows:
(i) they were rescued as victims and later held up by the police authority.
(ii) Mysteriously the authority kept making confusing statements about holding them in custody for a whole month – sometimes admitting it and sometimes denying it. Their families maintain they were held in police custody all along. It should be noted that Article 33 (2) of the Constitution states: “Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the magistrate, and no such person shall be detained in custody beyond the said period without the authority of a magistrate.” If police had suspicion about the role of the duo in this attack, the legal process should have been to arrest them as a suspect and then interrogate them for the purposes of investigation. It is unclear why the police decided to 'officially' deny holding them in custody!
(iii) A few days back they were allegedly picked up from Dhaka by law enforcement agency and shown arrested under Section 54 of the Code of Criminal Procedure. It should be noted that this section gives wide power to police to arrest somebody for suspicion of any crime. It is a notorious provision and the apex court recently passed a landmark judgment criticising the abuse of Section 54 by law enforcement agency and prescribing certain guidelines for the exercise of arrest or detention under Section 54. So at this point, they have not been arrested specifically in connection with the Gulshan attack after conducting pre-arrest investigation; rather they have been arrested for suspicion of crime under the arbitrary policing power of Section 54.
(iv) Immediately after their arrest, certain photos emerge in the media causing speculation and media trial of the duo. One is forced to wonder about the timing of the release of these photos matching up with their arrest!
(v) Talk shows and newspaper reports have ended their media trial and passed a verdict of guilty about the duo.
(VI) They now will go through a pre-trial investigation stage and possibly a second trial (the actual judicial trial process) having been found guilty by the media in the first trial.
Media trial is defined by the Indian Supreme Court as "the impact of the television and newspaper coverage on a person's reputation by creating a widespread perception of guilt regardless of any verdict in a court of law”. The impact of a media trial is to cause prejudice and is an obstruction to the course of justice. In this instance, based on the photographic evidence, we have two possible narratives. One is that Tahmid was carrying a gun and so he is one of them. Hasnat's body language was allegedly too comfortable in that situation, and his involvement with a banned organisation makes the case and point that he was involved in that attack. The counter narrative about Tahmid is that he was forced to carry an unloaded weapon and used as human shield. The counter narrative of Hasnat is unclear. He got sympathy or attention from nobody being condemned as guilty from day one. The media took no interest to get his word out. But he has made statements to the police about his explanation nonetheless.
To reach a conclusive decision about their guilt one has to investigate their previous backgrounds, record statements of eye witnesses who saw their activities on that day, allow the accused to give reasonable explanations to any incriminatory evidence against them. It is a tried and tested process which we have been following since colonial times.
At this point even the police maintain that they are merely investigating the matter and have no conclusive evidence against the duo. Unfortunately, our overzealous media have taken it upon themselves to bypass the routine process and pass an expedited verdict of guilty.
Media trials are taking new heights with each passing day. Perhaps this is an indication or a result of the failings of the judicial system or perhaps it is merely unethical or bad journalism, but media trials at the end of the day are undesirable and should be avoided at all cost.
The writer is an Advocate, Supreme Court of Bangladesh.