 |
| |
|
Wednesday, November 29, 2006
|
|
Role of Judiciary in Upholding Justice
-Prof. Dr. Bharat B. Karki, Head of the Law Department, Faculty of Law, T.U
(i) Upholding Justice : As against gender discrimination hither to committed by law, government, courts and society a strong gender or women's' rights movement was launched by women and human rights activists since the restoration of multi-party democracy and promulgation of the 1990 Constitution particularly seeking the Nepali courts to force the government to toe to the international legal obligations of CEDAW and 15 other international human rights instruments signed by Nepal as a State party envoking Right to equality and Positive discrimination clause conferred by Article 11 of the 1990 Constitution. The Supreme Court in support to the ongoing successful gender movement has pronounced a large number of leading judgments upholding gender justice on different aspects having responsibility under section 9 of Treaty Act,1990 to determine the application of principles of international human rights law to the national law. Meera Dhungana v Ministry of Law and justice et.al (1995) is the first case in which the court issued a directive to the government to introduce a bill within a year conferring equal inheritance right to women on ancestral property. The Bill was later passed as 11th Amendment to the Muluki Ain (Civil Code). Reena Bajracharya v HMG and others (2000) was the first case in which the Supreme Court examined the concept of gender justice and its application in Nepalese legal system. Others in row are: Advocate Sapana Prdhan Malla v HMG and others, 2001 (held sexual intercourse committed on a prostitute without consent amount rape); Sabin Shrestha and others v Ministry of Labour and Transport Management and others, 2001 (freedom of women to foreign employment); Sita Singh Poudal v Public Service Commission, 2000 (special measures to be applicable to women employees outside civil services. It has been found that from 1990 onwards till last year, 38 cases related to gender discrimination have been decided by the Supreme Court, in which only in 28 cases the court found the existence of discriminatory laws needing correction. Hence, the judiciary has set a trend for the inclusion of Women's human rights, as a result of judicial intervention in many test cases filed on equality issues, the government has introduced various reformatory/inclusive legal amendments in the Eleventh Amendment to the Country Code conferring mental torture a ground for divorce, legalization of abortion on certain situations; increasement of punishment in rape cases; increasement of the age for marriage, etc. But it is also realized that the courts' assertiveness on gender justice is not enough as the courts are also unpredictable and the court exclusionary approach on gender justice is also prevalent.
(ii) Caste Discrimination and upliftment of backward and downtrodden Community: The Judiciary seems very committed against caste discrimination. 1. Sapana Pradhan, "The Supreme Court against Gender Discrimination", Golden Jubilee Memories of Nepal Bar Association 2005, Kathmandu p.92. In Man Bahadur Vishwokarma v HMG (1992), the explanatory note of No. 10(A) of Miscellaneous ( Adalko) chapter of the country code was declared void with immediate effect as it had contravened Article 11(4), which prohibits caste discrimination and intouchability. Similarly, in Kamanand Ram and others v HMG and others (2000), the Supreme Court issued a directive to the government to remain active and alert in carrying out its legal obligation to eliminate untouchability. In Krishna Prasad Shiwakoti v HMG and others (2006), the Supreme Court issued a directive to the HMG to make law for the upliftment, protection and welfare of the Dalit Community pursuant to Article 11(4) of the constitution of 1990. In Durga Sob v HMG and others (2002) the court took slightly different interpretation while issuing such order.
(iii) Protection of Right to Equality: The Supreme Court has constantly taken a positive approach in favor of right to equality. The cases referred to as above in regard to gender justice support it. Illustratively, Baburam Regmi and others v HMG and others (1999), the court held that equality could not be absolute and that just and reasonable classification could be made by law. In Advocate Chandrakant Gyawali and others (2000), the court held the impunged provision of clause (i) of rule 1 of the Prison Rules 1963 as repugnant to Article 11(3) of the Constitution of 1990 as the rule was applied unreasonably while classifying and treating the prisoners.
(iv) Protection of Minor's Rights: Children's rights are protected human rights and legal rights to which the court also seems to be sensitive. In Aashish Adhikari on behalf of Keshav Khadka v Dhankuta District Court and others (2001), the court held the detention of a minor in prison as illegal and directed the concerned government office to keep the minor in some child reform house. In Tarak Dhital and others v C.D.O of Kathmandu and others, the court showed deep concern towards exploitation and torture meted out to minors and infringement of their rights embodied in the Children's Act, 1991. In Chandra Nath Sapkota v Home Ministry and others, 2001, the court upheld the minor's right to form union and association.
(v) Upholding personal liberty and Right against Prevention Detention: In recent years the court's approach has been soft towards protecting the right to personal liberty and right against preventive detention. It has taken the approach that so long as there were not sufficient grounds to prove as to which acts of the detainee caused immediate threat to the sovereignty, integrity or law and order situation of the country, one could not be deprived of his/her precious personal liberty. Therefore, for the lack of sufficient grounds the Supreme Court held those detentions as illegal and inolative of Article 12(1) of the Constitution of 1990, and released the detemes by issuing writ of habeas corpus. See also Kalpana Subedi v HMG and others (2001); Rameshwar Chaulagain and others v District Administration office of Sindhupalchowk (2001).
(vi) Protection and promotion of Freedom of Information: The Constitution of 1990 guaranteed the right to information for the first time in Nepal under its Article 16, to which the court has very positively protected and enforced citizen's right to information. In Gopal Siwakoti and others v HMG, Ministry of Finance and others (Arun III case) 1994, the Supreme court for the first time analyzed the whole scenario of Nepalese legal regime on right to information and found the existing law not adequate to provide remedy to the petitioner, therefore, it developed law regarding procedual right to it until parliament enacts a separate Act regarding right to information in pursuance to the provision of Article 16. Accordingly the court issued 8 point guidelines (as law) to HMG to follow and provide remedy to the petitioner. It also established a precedent regarding citizen's right of Locus Standi and public interest nexus in the right to information cases of public importance and involves a question that needs an interpretation of constitution or law. It also observed that the court actually does make law, but only interrelates law, the reasoned and principled interpretation of law which has the force of law are normally called judge-made-law. In Kashi Dahal v HMG Secretariat of the Council of Ministers and others, 2004 (Lumbini case), the court ordered the respondents to make public reasons why the sacred pipal tree needed to be chopped down and idols of Mayadevi temple to be shifted from Lumbini.
(vii) Right to Property: There are cases where the Supreme Court has made vindication of a citizen's right to property. The Supreme Court in Mithilesh Kumar Singh Case interpreted that the right to property is legal right though Article 17 of the constitution enshrines it as a fundamental right. In Lalit Bahadur Khatri v HMG and others, the court held that so long as the legal procedures were not complied with in accordance with the law, private property of citizens could not be treated as lawfully acquired by the state for the public purpose, there by issuing a writ of Mandamus it directed the Ministry to vacate the lawful possession of disputed land of the petitioner.
(viii) Priority to the citizens Rights: In Advocate Bal Krishna Neopane v Parliament Secretariat (1993) the Supreme Court declared the second sentence of the impugned section (1) of the Labor Act, 1999 void ab initio in pursuance to Article 88(1) of the Constitution of 1990, on the ground that the alleged section 4(1) which provided "while making such appointments priority shall be given to the Nepalese Citizens" as violative of Article 12(2) (e) of the constitution 1990 since the Parliament had no power to enact any law guaranteeing right to foreign citizens to practice any profession or occupation in Nepal as the citizens can do.
(ix) Control over the Military Court 's Decision: In Iman Singh Gurung v HMG and others, the Supreme Court for the first time declared clause (d) of section 3(1) of the Military Act, 1960 void with immediate effect as being contradictory to Article 11(1) of the constitution of 1990. It asserted its power of judicial review over military court jurisdiction on ground of unconstitutionality, however such jurisdiction is legally protected.
(x) Upholding the Right to constitutional Remedy under the state of Emergency, and entertaining the Non-Suspended Rights: The Supreme Court was confronted with the issue whether the writ petitions already filed in the Supreme Court under Article 23 before the declaration of emergency could be further proceeded with or not, as the declaration of the state of Emergency in the wake of the escalation of the Maoist insurgency on November 26, 2001 throughout the country resulted the suspension of the fundamental rights guaranteed by Articles 12(a), (b) and (d); 13(1), 1516,17,22,and 23 (except the right to the remedy of habeas corpus) of the constitution with immediate effect. The deadlock created by the issue was resolved by the special bench of the court in a Madam K.C v The Land Reform Office (2001). The court ruled that the Constitution did not seem to have imposed any express restriction on the hearing of the writ petitions filed before the declaration of the state of declaration of the state of emergency and already under consideration of the court. Therefore, there was no constitutional impediment in the hearing and disposal of such writ petitions.
The Supreme Court continued with the approach during the state of emergency declared on February 1, 2005. The special bench of the Supreme Court held on March 30, 2005 that fundamental rights of the people which were not suspended during the state of emergency could be enjoyable without restrictions. (in Gauri Pradhan & other v HMG & others (2005))
(xi) Protection of Media Rights: In the corrolory of hosts of Ordinances introduced, King Gyanendra on October 9, 2005 promulgated Media ordinance defeating constitutional norms and international media law with a design to intensifying repression of media as imposed during the state of emergency in 2005. Accordingly, a number of newspapers and television stations were prohibited from broadcasting news vide a Notice given by the King on February 3, 2005. The Supreme Court in Rainbow F.M Case (2005) held that the government had no right to take action against Rainbow F.M. or cancel its license for defying ban on airing news. But despite the lifting of state of emergency on April 29, 2005 and expiry of the six months ban on media and also in derogation of the Supreme Court's ruling, the ban of Media continued. As against it various writ, PIL petitions were filed including seven professional organizations demanding annulment of media ordinance, and in between an interim order against the implementation of the ordinance. The apex court issued show case notice in favor of the FM stations including Kantipur FM and Radio Sagarmatha who were attacked but refused to issue interim order against the media Ordinance. The Supreme Court's decision was attacked throughout the country and abroad. Nepal Bar Association also launched protest program against it. Finally, the Supreme Court on November 29, 2005 issued an interim order to the government requiring it not to ban news from FM stations until the court gives its final decision. This paved also a serious set back to the Royal autocracy.
Prayer Flags and the Tibetan Trinity
- Sunjuli Singh , Nepal
Prayer flags are inscribed with auspicious symbols, prayers and mantras. Tibetan Buddhists for centuries have planted these flags outside their homes and places of spiritual practice for the wind to carry the beneficent vibrations-across the countryside. Prayer flags are said to bring happiness, long life and prosperity to the flag planter and those in the vicinity.
Traditional Tibetan prayer flags are colorful squares of fabric with Buddhist symbols and sutras printed on them. According to ancient Tibetan- Himalayan tradition, as wind drives the flags, prayers are unleashed to the heavens, carried by Wind-Horse. As the square flags’ edges start to fray and the vivid colors begin to fade, all the prayers are said to be released. These flags are strung together and hung outside temples and homes. They may be placed either inside building to increase the spiritual atmosphere or outdoors where the wind can carry the sacred prayers. Traditionally, they are fastened or sewn onto ropes to be displayed horizontally or fastened to wooden poles for vertical display.
There are two kinds of prayer flags, the horizontal ones are called Lungta in Tibetan and the vertical ones Darchor. A typical prayer flag has at its central image a horse bearing three flaming jewels on its back. This horse is known as ‘Wind-Horse’ which lends the flags their Tibetan name ‘lung-ta’. The three jewels symbolize Buddha, Buddhist teachings and Buddhist community. These altogether make up the equivalent of Tibetan trinity. Traditionally five different colors are used in the prayer flags which represent five elements, or five different postures of Buddha: space (blue), water (white), fire (red), air (green) and earth (yellow). Sets of five color flags should be put in the order of yellow, green, red, white, blue (from left to right or from bottom to top); the blue color should be on top as it represents sky. The colors represent five different elements namely, earth, water, fire, cloud, sky. These five colors also represent five directions, five wisdoms, five meditative Buddhas and five mental attributes. On the four corners of the flag are images of Garuda, Dragon, Tiger, and Snow Lion which are the four sacred animals representing four virtues of wisdom, power, confidence and fearless joy respectively. Around the horse are 20-odd mantras - powerful ritual utterances - each dedicated to a particular deity.
Prayer flags are printed from wooden blocks on to colored cotton or polyester. The flags are usually renewed each Tibetan New Year. Tibetan pilgrims carry strings of flags with them to adorn the sacred sites they visit. The prayer is written in Tibetan and always expresses positive intentions for the happiness, enlightenment and protection of all beings. Everyone revere these flags since it is attractive and express generosity and heartfelt love for all beings. It invokes wisdom, compassion and strength. It protects against dangers and negative forces. It helps to overcome obstacles, increase prosperity and long life and promote peace and harmony among all living beings. It contains prayers and aspirations for all beings. It is believed that as the wind passes over the surface of the flag, the air becomes purified and sanctified by the mantras. In addition, mantras are prayers for long life and good fortune of the person who erects the flags. However if the flags are hung on the wrong astrological dates, they will bring negative results and greater obstacles will arise as time passes by. These flags are also very affordable however the cost depends on the fabric, print and size that one chooses.
Prayer flags are excellent for display at weddings, birthdays, shrines, holy sites, home etc. They may be hung across gateways, along pathways, above doorways, from house to tree anyplace where wind and prayer may meet. Prayer flags last from 2-5 years when displayed outdoors depending upon weather, exposure to the sun and moisture content in the air. The element which causes greatest decay is ultraviolet light.
Those printed on cotton will fade faster than in polyester. If anyone wishes to dispose of the flags, it should be burnt as they are sacred. These prayer flags are designed to fade and to disintegrate overtime to symbolize that all life fades and disintegrates and is renewed by other life. By renewing prayer flags we acknowledge and welcome that life is not stable but it changes. These flags are colorful reminders of truth of life that we are here with this precious life for some time only.
Text courtesy: The NTTR May-June 06'-ed
Media Policies on Advertising Business
Lal Deosa Rai, Reader, Central Department of Journalism and Mass Communication, T.U.
The conflict situation of 1990s had impelled the government to open discussions among the interest groups on the issues of advertising, and eventually by AD 2002 an explicit national advertising policy was declared as a part of the comprehensive new Information and Communication Policy 2059(2002).The policy is committed to develop advertising business as a national industry. The one–door policy of providing welfare advertisement subsidy at one hundred percent increased rate has given a new life to the old but dying newspapers born during the newsprint subsidy regime. This new policy was adopted in response to long–standing demand of the advertising professionals’ organization AAAN, and Federation of Nepal Journalists FNJ. The observance of the codes of conduct and acceptance of the classification decision of Press Council Nepal are some the conditions for enjoying the subsidy benefits. This policy is undergoing a severe test of credibility in the context of conflict situation. On the other hand, liberalization of advertising system has boosted the business of advertising agencies. The trend in registration of advertising agencies picked in the 1990s, but it was after the declaration of advertising policy as a component of the long-term media policy in 2002 that the legitimate business of advertising has come to be established in anticipation of developing into a full-fledged industry. There are more than 500 advertising agencies in the country, though of these only 254 are registered as AAAN, and only about one hundred agencies are in active business.
Impact
We can argue that Maoist violent attacks on the national communication infrastructures reflected the effectiveness of this policy. Even at the cost of earning the label of “terrorists” the Maoists systematically targeted the national communication physical facilities. They were fully aware of the indirect, intended effectiveness of the communication system in weakening strategically their guerilla warfare fortifications. The main thrust of this policy was to build up strategic resistance on a long-term basis by diffusion of news, knowledge, innovations and so on leading to the alleviation of poverty illiteracy and ignorance in the rural base of the Maoist movement. Basically, the moves to liberalize the socio-economic sector including the information and communication sector under the Ninth Plan was to some extent in response to a worsening political crisis and the threat of the imposition of the “failed state” status.
Now since this is a long-term media policy, the questions that the new generation of Nepalis will eventually raise about this Policy’s effectiveness would be the nature and extent of the alleviation of poverty that is rampant among the rural communities in contemporary Nepal. At present, however, we can see its immediate effects, like for making the state-owned media self-reliant and competitive; or arresting the trend of concentration of all types of media system under the control of one ownership; or participation of the local community in FM transmission or establishment of print media institutions in the outlying districts and so on.
While reviewing the problems and challenges encountered during the Ninth Plan, the Tenth Plan (2002-2007) has identified “worsening security situation due to destructive activities “as one of problems of the communication sector. The Tenth Plan has prioritised the policy of effectively developing the broadcasting services by establishing a Broadcasting Authority ,by expanding the reach of Radio Nepal with the aid of satellite and computer technology, by expanding the NTV services to every family throughout the country, free of cost; by increasing the flow of information among the general public by encouraging the use of FM broadcasts, audio-visual devices ,and by establishing Integrated Information Centers in the district headquarters that will provide multimedia services. The Plan has also endorsed the policy of strengthening advertising industry as a national industry. We can assume these Plan programmes and strategies are designed and formulated to some extent under the impact of the Maoist insurgency.
The Media Policies during the Emergency Rule (2001 -2002) and the direct rule of King Gyanendra (2005 -2006).
By the dawn of New Millennium the Maoist insurgency escalated with the breakdown of the ceasefire accord and a civil war environment was created in the country There was not only a breakdown in the process of the Ceasefire accord but the conflict situation assumed ominous proportion with the dissolution of the House of Representatives in May 2002.; ending of the term of local governments in July 2002; dismissal of the elected Prime Minister, Sher Bahadur Deuba, in October 2002;.appointment one after another of three Prime Ministers under the Art.127. by King Gyanendra until 2005 when he himself took over the reins of power but only to give up on 28 April 2006, when he acknowledged the people’s power for lokatantra and by a Proclamation summoned the session of the Parliament.
After the breakdown of the Ceasefire a state of Emergency was imposed on 26 Nov 2001 declaring the Maoists to be a group of terrorists. Together with it the Terrorist and Disruptive Activities Ordinance 2001 was promulgated which broadened the definition of a terrorist to include anyone found aiding and abating the Maoists in any way.
Impact
Thus, some temporary aberrations in the main pursuit of the long- term media policy (2002) had occurred between November 2001 to 2006.This emergency regime immediately affected the profession of media communicators and the practice of quality journalism. The doors to just and legal remedy against the brutal atrocities of the State were closed. Various tactical restrictive measures and censorship mechanism were initiated in various forms and institutions including the Army. The Nepal Patrakar Mahasangh (Federation of Nepal Journalista), spearheaded the movement against the State emergency control of press freedom and civil rights, which was brutally suppressed. The account of this suppression is delineated in the publication, Sankatkalma Nepali Press (2003), by the Federation of Nepal Journalists Association and INSEC Human Rights Reports. A field study by Binod Bhattarai has assessed the impact of the emergency conflict in its first six month on the practice journalism by the professionals of the six Nepali language broadsheet dailies.
The direct rule of King Gynendra, by its very nature of governance, could not dispense the press freedom of liberal democratic variety. It took resort to the system of pragmatic sanction to forcefully control the fundamental rights of the citizens. But, ‘will’ and not ‘force’ being the basis of the State, this autocratic rule was reversed by the people’s power within a year. However no empirical study has been undertaken to generate reliable and verifiable data on the impact of this conflict situation on the mass media policies of the then government.
Issues of Professionalism
So far as the question of standard of conflict journalism practiced during the last one decade a half is concerned the basic data collected by the method of content analysis are required. Currently, however, such data are not readily available and while writing this paper there was no possibility of collecting such data from the field owing to the constraints of time, space and financial resources. A good model for this type of study is provided by Binod Bhattarai’s study referred to in the preceding paragraph. The media content produced during the one-year direct rule of King Gyanendra could have been analysed for the purpose of this paper, but that would have been inadequate to support the impact thesis.
For the purpose I would like to make some observations of conceptual nature only. Mass media-based communicators like other professionals operate within a set of media system or organization which like any other organizations function in an environment of social forces. The ways these communicators conceive of themselves within the environment of the media organizations and in society, and the ways in which their conceptions impact upon the operations of the media organizations they inhabit, it may be argued, have effect on the ways in which they approach their everyday media work. And it can be argued that in following established and widely accepted patterns of working practices the media professionals are conforming to what may be labelled “occupational ideologies” or an ideal, sometimes with possible hazards. By accepting the working practice patterns of an organization the media persons become professionals by willingly entering into a system that operates “ideologically”, because the everyday tasks connected with the job become a set of professional practices.
Carrying out of tasks in particular, accepted way allows journalists to lay claim to certain distance or impartiality from the material they are working with; but the perceived ability of professionals to judge what that material may be are not necessarily self-evident, and therefore their claims to be able to do so is a highly ideological one requiring may be moral leadership (dharma). There is therefore a paradox of professionalism: media professionals are those who simply do their job to a high standard and who are always impartial and distant from the material and issues they cover but, on the other hand, they are those who maintain the relevancy and importance of ideas and beliefs(agendas) in society through the adoption of the accepted standards, which themselves, it may be argued, are designed to reinforce certain values and views of the society or the larger world community.
The media institution is unusual. It is both social as well as an industrial institution. What it does or does not do matters to societies and this social concern has been expressed or reflected in complex system of normative ideas and national policies and mechanisms to protect or limit it in public interest. But at the same time the media as an industry has to operate according to the dictates of the market forces. And as an industrial institution or business enterprise it will be subject to various forms of the state regulations and policies for the reasons that other private businesses are subject to in a country. It well recognized by the media critiques that for various reasons journalism should not be considered as a profession, and Mc Quail, as one of the mass communication scholars, observes,” At best, however, it can be said that journalism is an incomplete profession and faces obstacles in ever being complete.”
The status of journalism as a profession being in dispute, the standard of judging its performance is also not very clearly stated. However, for the guidance of the policy–makers McQuail has prescribed the following general criteria which may to some extent answer the questions posed for this paper:-
Control of entry to the occupation
Core skills for which training is required
Codes of ethics and standards of practice that are enforced
Having a significant social role to play
Having autonomy in the exercise of skills.
If the conflict journalism in Nepal was not up to the professional standard and if the national policy-makers and media institutions themselves had taken steps to rectify the tradition of unhealthy professionalism then this becomes a hypothetical question to be investigated on the basis of the above criteria.
