The Judiciary and the Media: Bridging the Gap

MIZANUR RAHMAN KHAN recommends building links between the courts, the
press and the people.

STAR PHOTO

The ties between media and the judiciary remain unexplored in our democratic polity. It is often said that the main challenge is the maintenance of public confidence in the courts.

As US Supreme Court Justice Felix Frankfurter once said: "The court's authority -- possessed of neither the purse nor the sword -- ultimately rests on sustained public confidence in its moral sanction."

It is the press that works to build the mosaic of that public confidence. When proceedings take place in the presence of the media, the probability of the abuse of the process is considerably minimised. But there is a difficult distance between the courts and the press in our country. Many US state-level superior courts have appointed Public Relation Officers (PRO) to facilitate interaction between judges and journalists. The judges are allowed to answer the queries of the journalists. Our code of conduct for the judges prohibits only formal interviews with the press.

The immediate past Chief Justice of India, K.G. Balakrishnan, made remarkable progress in fostering ties with the media and enhancing the concept of openness and transparency. Initially, he opposed the idea that the SC fell within the ambit of RTI. But he accepted defeat following a Delhi High Court ruling. For the first time in Indian history, he appointed a PRO to interact with the press. Subsequently all the superior courts of India devised mechanisms under the Right to Information (RTI) Act. Balakrishnan broke the "traditional unseen barriers" between the judiciary and media by organising a first-ever workshop titled "The Workshop on Reporting Court Proceedings by Media and Administration of Justice" in March 2008. One hundred court reporters and 15 apex court judges apart from eminent journalists were present. The issues that cropped up for discussion ranged from "bad acoustic in court rooms, forcing reporters to resort to the lip reading of judges to decipher what they said in their orders" to grave issues such as "the courts' awesome power under contempt laws, often coming in conflict with the media's right of free speech and expression".

In South Africa, the media and the judiciary are partners for "open justice", said Chief Justice Sandile Ngcobo. The Western educated Chief Justice, who was first chosen by Mandela in 1999, gave a landmark address at a gathering of the South African National Editor's Forum (Sanef) in Cape Town in February this year. He said: ''The rights of the media to observe and report on the administration of justice, and to have access to court papers in court proceedings stem from the right to open justice. This access, in turn, allows the media and the judiciary to work together to give effect to the Constitutional values of accountability, transparency, access to justice, and judicial independence." The Chief Justice of South Africa argued: "Judicial transparency doesn't mean much when most people have neither the time nor inclination to travel to court to watch the judicial process unfold in person. The media, therefore, has an important role in disseminating judicial proceedings and decisions to the community."

He has also said: ''By reporting on these matters, the media ensures that the judiciary is accountable and this in turn creates an atmosphere that is conducive to confidence in the judiciary. And public confidence in the judiciary is vital to the proper functioning of the courts. But to do this, the freedom of the media to report must be protected, and this is the function of the courts. The relationship between the media and courts is, therefore, one of interdependence. Despite the tensions that occasionally erupt between the two, this relationship is symbiotic and mutually reinforcing.''

Noted British jurist Lord Steyn explained: ''The principle of open justice puts, as has often been said, the judge and all who participate in the trial under intense scrutiny. The glare of contemporaneous publicity ensures that trials are properly conducted. It is a valuable check on the… process [and] promotes public confidence in the administration of justice. It promotes the value of the rule of law."

Our Constitution guarantees the right to public trial (RPT). There is a clear nexus between the RPT and RTI. Like the other two branches of the state, the court has no communication devices with the public. The Constitution did not define the term "public trial". It means an open trial. An open trial is one in which the media covers the proceedings of a trial. Open justice does not mean open to only judges and lawyers, and like all principles, the principle of "public trial" is not absolute. There are the "reasonable restrictions" imposed by the law.

Today, unhindered public access to proceedings in our courts must be a fundamental facet of our justice system. It is enshrined in Sections 27 and 35(3) of the Constitution, which speak not only of RPT but also right to public hearings (RPH). The system and practice allow recording of the proceedings of parliamentary debates and cabinet deliberations only, not of public hearing in the courts.

But we find that there is a general reluctance to bridge the gap with the media in our country. The file on appointment of designated officers under the Right to Information Ordinance has been shelved with a promise that it will be resolved soon. Chief Information Commissioner (CIC) Mohammad Zamir himself said that "the appointment of designated officers in the justice system of different districts, including Dhaka, is essential. It will increase accountability and transparency.'' But, so far, the issue of protection and encouragement of the free press, freedom of speech and the free flow of information in the court arena does not exist, at least in a formal sense. On the other hand, the existing rules (1908 Code of Civil Procedure and 1956 East Pakistan High Court Rules) derived from the pre-independence period, provide some scope for seeking information from the court administration, but neither the citizens nor the media are availing it.

The documentation of hearings is important for understanding the various aspects of a trial. The current system allows the people to know only the final verdicts. The Bangladesh judiciary needs establishment of a comprehensive media and communication network to deal with enquiries from the media and public. The introduction of a website of the Supreme Court is a welcome development. But there is in-house bickering about the dissemination of judgments on the official website. The official websites of the Supreme Courts of India and Pakistan contain a huge collection of judgments. The Bangladesh Supreme Court website contains, as of October 20, 2010, only 11 judgments, five of Appellate Division and six of High Court Division, but they are not easily accessible. Thus access to the judgments electronically remains elusive.

The Bangladesh judiciary needs judicial statesmanship. The surprise visit by the new Chief Justice to the courts in Dhaka is a manifestation of the need for a greater executive role by the Supreme Court for a dynamic judicial administration. The judiciary must adopt a declaration outlining reforms necessary to improve the accessibility of the justice system. A group of distinguished jurists and academicians could be appointed to help accomplish this. The courtrooms must be redesigned, which will allow newspersons to work professionally.

The link between the media and the judiciary must be vibrant, and follow the principle of public justice.

Mizanur Rahman Khan is Associate Editor, Prothom Alo.