Striking a balance between free speech and right to a fair trial

This week Kuensel reported that Wamrong Court reminded the “media, including social media, of their responsibility to inform the public fairly, objectively, accurately and without malice” and BBS reported that court reminded that “the general public must strike balance in exercising their freedom of speech and right to a fair trial.”

This is a milestone statement where our judiciary is striking the balance between free speech and the right to a fair trial, both fundamental rights enshrined in the Constitution.

Since the case is now before the court, it is considered sub judice. The sub judice   rule aims to protect the defendants’ rights for due process and a fair trial against the public or media trial.

The due process of law (Article 7.1) and the right to be presumed innocent until proven guilty and right to a fair trial (Article 7.16) are fundamental rights of an accused enshrined in the Constitution.

Section 4 of the Civil and Criminal Procedure Code (CCPC) reiterates the right to a fair trial. Fair trial is the “only way to prevent miscarriages of justice and are an essential part of a just society.” Thus, the right to a fair trial is recognised as a basic human right and forms the “core to all fair criminal justice systems.” Therefore “given the pervasiveness of modern communications and difficulty of effacing prejudicial publicity from judges, the courts must take strong measures to ensure that balance is never weighed against accused.” This is manifested under Section 5 of CCPC where the court proceedings and decisions must be based on the rule of law.  This interest is “not only the interest of the defendant but also the interest of the entire justice system.”

Any person who interferes in court proceedings or matters before the court (sub-judice) would attract Section 102 of the CCPC. This includes disrespecting the courts or interfering with a case, either orally or in writing.” The Courts have the authority to impose either civil or criminal sanctions to restore the order and discipline.

On the other hand, the right to free speech, opinion, information and freedom of media are also fundamental rights which are indisputably the most important tenets of a healthy democracy to ensure accountability of public figures and institutions.  New Zealand Court of Appeal held that “freedom of the press and other media is not lightly to be interfered with and it must be shown that there is a real likelihood of a publication of material which will seriously prejudice the fairness of the trial. The U.S. Supreme Court stated that “freedom of discussion should be given widest range compatible with the essential requirement of the fair and orderly administration of justice, but it must not be allowed to divert trial from the very purpose of the court system to adjudicate controversies, both criminal and civil, in calmness and solemnity of courtroom according to legal procedure.”

His Majesty said “the rule of law begets discipline, which in turn begets order, and peace, which leads to trust and to stability. The lack of adherence to the rule of law persecutes an entire nation.” Both the public and accused must exercise their rights responsibly within the rule of law. The free speech and the right to a fair trial must operate within the ambit of the rule of law and neither of them must be considered unfettered rights.

Sonam Tshering

Lawyer, Thimphu

Disclaimer: The views expressed in this article are author’s own.

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