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.
