Media seeks to strengthen democracy through information

SEP 15 -

Earlier this year, in June, Law Minister Narahari Acharya presented a draft bill on contempt of court to the Legislature-Parliament. Following this, there were protests from the Nepal Bar Association and the Federation of Nepali Journalists (FNJ) on grounds that the bill sought to restrain freedom of expression and stifle criticism of the judiciary. Currently, the Parliament is set to conduct public hearings on the bill. In this context, Shiva Gaunle , former chairperson of the FNJ, spoke to the Post about freedom of expression, the contempt of court bill and its implications for the Nepali media.

Broadly speaking, what has been the freedom of expression landscape post restoration of democracy in 1990?

The 1990 constitution envisioned liberal, democratic governance, which was not possible without ensuring press freedom and freedom of expression. The constitution guaranteed those rights for the first time and whatever opportunities the Nepali press has got to create an informed society and wherever it stands now is due to that constitutional provision. But the Nepali media’s progress to its current state is really interesting, as it had to struggle with forces that called themselves democratic. From 1996 to 2006, journalists worked to keep society informed, even in the absence of any form of life insurance. But even after 2006, the media has continued to face obstructions from the very forces that are expected to protect it in one way or the other.

In the recent times, the government has come down heavily on dissenting voices. For instance, it jailed people for Facebook comments and now, this new contempt of court bill. Isn’t this unbecoming of democratic practice?

In Nepal, all politicians say that they support freedom of expression but they do not have answers as to why it is important. Moreover, after the end of the decade-long conflict, there should have been no difference in the goals of  political forces commited to the Interim Constitution and the press. The press seeks to strengthen democracy by creating an informed society and lending a voice to diverse opinions. The democracy we know of also seeks to do the same. But the irony is that those who call themselves democratic are the ones that are extremely rigid in their dealings with issues of freedom of expression. For formal purposes, they speak of their commitment to the issue. But in practice, that commitment extends only until the press does not criticise them. Once criticised, these forces begin to threaten and exert undue pressure on the press.

Talking of such pressure, what do you have to say of the contempt of court bill which is currently in Parliament?

That the government is currently working on bringing a contempt of court bill is not a bad thing in itself. But certain points in the bill are highly problematic and unacceptable to the media.

In particular, it is the duty of the media to watch over any activity within the Supreme Court that might compromise the ability of a ‘strong and capable judiciary’ to give justice to the people, and make it public. But this bill seeks to stop such information from reaching the masses. Second, the constitution speaks of a ‘capable’ and ‘improved’ judiciary. For that to happen, people need to know whether the judiciary is functioning well or not.  The bill tries to muzzle any criticism of the court, similar to the Panchayat days when the media could not talk of the palace, the courts and the Army.

On its part, the Nepali press cannot even think of being disrespectful to the judiciary. It knows very well that the freedom of the press cannot be strengthened without a strong judiciary. When the state tries to interfere in the matters of the media, then the press goes to the courts for protection. For instance, it was due to the verdict of former Supreme Court justice Laxman Prasad Aryal that Nepali FM stations were permitted to read the news.

So how would you define contempt?

Contempt refers to interference in the judiciary when it is in the process of deciding on a case and during implementation of its decisions. In case of the media, if it intentionally disrespects the judiciary and repeatedly publishes or broadcasts falsified news, this is considered contempt of court.

Suppose the media repeatedly proclaims that the judiciary never provides a fair judgment and that no one should go there. Then, there can be a trial on why such things were written. But if the press writes something providing the context, facts, background, and with a good intention to improve the judiciary and help people get justice, then it cannot be contempt. Sometimes, the media can make mistakes even in news published with good intentions. Even such instances cannot be considered contempt of court as the media should be given a chance to correct its mistake. This is good practice across the world.

So why do you think the definition of contempt in the bill was expanded to curtail the media? 

It is because in Nepal those who call themselves democratic do not want to learn democratic practices or foster a democratic culture.

But do we see such a democratic culture in media houses too?

The media in Nepal has its share of problems. To start with, it has yet to be institutionalised and has a fairly short professional history. Also, there have not been adequate discussions on the investment coming into the media, the human resources it has and its accountability. To a large extent, the Nepali media is running on an ad hoc basis. Even today, many journalists are paid far less than the minimum wage. On the other hand, investment in the media is still not adequate. It is difficult to name more than a dozen media houses that regularly pay their staff. There is also the question of the quality of human resources in the media. The principle of economics holds in the case of Nepali journalism. You cannot provide a good, quality product by using the cheapest raw materials available in the market. Apart from this, the Nepali press is just a replica of Nepali society, with great disparities in the educational and critical abilities of individuals.

Yet, there are people who say that the media should lead the way towards a functioning democracy and lament that it has not been able to do so. I agree with that view. But given the short history of the Nepali media, it is only natural for that to happen. 

Lastly, if the bill passes in its current form, what will its implications be?

The bill does not question the facts presented in the news. Instead, it questions any news on the judiciary.  If this bill passes, editors will be continuously dragged to the courts.  The bill, however, will help draw a clear line between press freedom and contempt of court.  It should be taken as an opportunity to define contempt of court without restricting the role of the media in informing the people and make those holding public posts accountable.

Consensus will be sought till very end of constitution process

Saturday, August 6, was the deadline for the Constituent Assembly’s (CA) Political Dialogue and Consensus Committee (PDCC) to resolve contentious issues of the constitution, according to the CA calendar. The deadline passed without the parties having resolved any of the outstanding issues. A proposal to extend the deadline was opposed and instead, the PDCC will now be presenting both resolved and outstanding issues to the CA. In the meantime, the PDCC will continue inter-party talks. Pranaya SJB Rana spoke to Nepali Congress (NC) General Secretary and Chairman of the Constitution Drafting Committee Krishna Prasad Sitaula on the reasons behind the failure to reach consensus, the NC’s stances on federalism and forms of governance, and ongoing talks for a High Level Political Committee (HLPC).

The constitution-writing process has arrived at the same place as the last CA, and once again, it seems deadlocked.

The process started late this time around. The CA drafted its rules with the understanding that there would be talks with parties outside of the CA and gave this mandate to the PDCC. But the parties outside the CA refused to sit for talks with the PDCC; the Mohan Baidya-led CPN-Maoist said that it would only talk with the government. This whole process caused delay. Hopefully, it will be sorted out in a few days time. The PDCC and the government should both have taken the process forward and reached a conclusion by now. Any conclusion would have sufficed, whether consensus was reached or not. Initially, I did not see much seriousness; some leaders even joked about pushing back the CA calendar. If they had been serious then all other work would have been put on hold to focus on writing the constitution.

Couldn’t the three major parties—NC, UML and Maoists—have started deliberations among themselves on contentious issues, instead of waiting for parties outside of the CA to join the process?

It would have been best if the three parties could have sat down but things did not work out like that. All parties have their own stances and though talks have been broached, it does not look like any conclusion is close. The PDCC, which includes the top leaders of all the parties, was supposed to hold talks among the parties and try to reach consensus, but it was focussed on trying to bring parties outside the CA to the table for talks.

Whose weakness do you see here?

The weakness is collective, as the PDCC includes all the political parties represented in the CA. It is not about blaming others; we cannot write a constitution that way. Whatever weaknesses the CA has and whatever achievements the CA has made, they are our collective responsibility. Whatever the reasons for the delay, and there has definitely been a delay, we need to sit together and take the process forward. The January 22 deadline for the constitution cannot be pushed back. Looking at past experience, if we push back the deadline once, it will keep happening again and again.

How long can the PDCC keep pursuing consensus among the parties before other tasks, like taking a draft to the people, must be completed?

According to the CA rules, the PDCC will prepare reports on both agreed-to and outstanding issues and send these to the CA. After whatever decision the CA takes, the issues will be forwarded to the Drafting Committee, which will prepare a draft and again send that to the CA. Discussions will again be held at the CA, after which, the draft will be taken to the people for discussion for about a month. When the draft comes back with suggestions from the people, the CA will again send the document to the PDCC for deliberation. So the role of the PDCC will continue until the very end of the constitution-writing process. The Drafting Committee will only compose a constitutional bill [bidheyak] in Mangsir [January]. So consensus can be pursued during this entire time. Up until the time the constitution is announced, the PDCC has the mandate to keep the dialogue and consensus process ongoing. There is a misunderstanding that the time for consensus has expired or is expiring. There is opportunity for consensus even after the constitutional bill is prepared.

There have been complaints about the government’s lacklustre performance in leading the constitution-writing process and creating a proper environment.

What really can the government do? Only the CA can take constitution-writing forward and all the top leaders are in the PDCC. To move ahead with the process, the parties need to come to consensus on certain issues. The prime minister cannot dictate to the parties, he can only assist them in coming together. Earlier, the prime minister had left for the US for treatment and in his absence, issues that needed his presence, like talks with the CPN-Maoist, were put on hold. But now, he is actively pursuing consensus. PM Sushil Koirala looks better now than he did before his cancer diagnosis. So I do not think that his health will be an impediment anymore.

This time too, all parties seem to be sticking to their respective stances. Could you elaborate on the NC’s stance on federalism and form of governance, the two most contentious issues?

Looking at all of the parties’ stances, it seems that we all want to ensure inclusion. I feel that the best way to do this is through a parliamentary system and a council of ministers that is answerable to the parliament. Since we’re going for federalism, we cannot have one system at the centre and another system at the state level. If we opt for a directly-elected president, the executive head of the states will also be directly elected. To elect a president, we can have a broad electoral college that includes the participation of the central parliament and the various state councils. If citizens at all levels are able to vote for the president in some way, it will ensure widespread symbolic ownership of the head of state.

On federalism, if you look at it from the viability angle, the number of states should not exceed seven. Nepal is a diverse country of many cultures, religions and languages so it is a country of multiple identities. No ethnicity has a sizeable majority in any area. We can talk around seven states but 10 and above would not be practical.

As the largest party in the CA, how flexible is the Congress on these issues?

It was under the Congress’ leadership, under Girija Prasad Koirala, that a federal republican state was declared and we will not abandon this. But there is still room for flexibility to take the process forward and reach consensus.

Now that the talks process with the Baidya-led coalition of 33 parties that remains outside the CA has started, what agendas will be discussed at the all-party roundtable?

We will sit with them and listen to their demands for inclusion into the constitution. We might find common ground through discussions as Mohan Baidya and the CPN-Maoist were also part of the former CA until the very end. They played a significant role in the 12-point agreement, the Comprehensive Peace Agreement and the Interim Constitution. The three major parties might also find a new avenue for consensus through these talks. But again, the gist of my argument is that there cannot be any more delay.

On a different note, UCPN (Maoist) Chairman Pushpa Kamal Dahal has been in pursuit of a High Level Political Commission (HLPC) to resolve differences over contentious issues and complete the remaining tasks of the peace process.

I do not quite understand this HLPC that the media keeps bringing up. The highest level political forum for constitutional issues is the PDCC, given its mandate and the presence of all the top leaderships. But another political forum can be developed to complete the outstanding tasks of the peace process. To address the pain of the 10-year conflict, there is still a need to form a Truth and Reconciliation Commission and a Disappearance Commission. We have passed a transitional justice bill and formed a recommendation committee but the commissions have yet to be formed. If these two commissions are not able to function properly, there is a danger of the entire peace process falling apart. So the parties that signed the 12-point agreement and the CPA need to sit down together, discuss these issues and come to a political understanding that will ensure lasting peace.

Will the Madhes-based parties be included in this political forum, as demanded by the UCPN (Maoist)?

The 12-point agreement and the CPA were signed between the then Seven Party Alliance (SPA) and the Maoists. So it is with these parties that the political mandate for the peace process rests. The leading parties from the SPA are the NC and the CPN-UML. The Maoist party has splintered since then but Prachanda still leads the UCPN (Maoist) now, as he did then. So I think it would be best for just these three parties to sit for talks on the peace process. But in constitution writing, all parties must be involved.