MEDIA ORDINANCE
Absurd Amendment
The amendment of media acts through ordinance curtails the individual’s right of freedom of speech and expression
By KESHAB POUDEL
Just on the last day of beginning of long holidays, the government issued a media ordinance imposing restrictions on the free press. Soon after the promulgation, people from various walks of lives protested against media ordinance - which aimed to curtail the freedom of speech and expression.
Just after the opening of court, a petition was filed by advocates Rabiraj Bhandari and Kahar Singh Khadka and pleaded by former attorney general Badri Bahadur Karki. The Supreme Court bench headed by chief justice Dilip Kumar Poudel issued show cause notice to the government asking it to appear for hearing for interim order, which is scheduled on October 30. In the meantime, a group of professional organizations under the banner of Nepal Bar Association also filed a petition, on October 23, demanding to quash the ordinance.
The article 12 (2) of the Constitution – which is related to freedom - says all citizens have the following freedoms: (a) freedom of opinion and expression b) freedom to assembly peaceably and without arms, c) freedom to form union and associations, d) freedom to move throughout the Kingdom and reside in any part thereof; and e) freedom to practice any profession, or to carry any occupation, industry and trade.
Furthermore the Constitution also has separate article regarding the press and publication right. Under the article13 of the constitution, the Press and Publication right gives enormous freedom to the media. The 1 to 3 of the article guarantees against censorship, cancellation of registration and seizing the printing materials.
The media ordinance amends most vital clauses of Radio Act 2014, National News Agency Act 2019, Print and Publication Act 2048, Press Council Act 2048, National Broadcasting Act 2049 and Defamation Act 2016.
From increasing fine up to five hundred percent to increasing terms of punishment for media persons, the amendment intends to curtail freedoms of speech and expression guaranteed by the Constitution of Kingdom of Nepal 1990.
Although the proviso enables state to impose ‘reasonable restrictions’ to protect national sovereignty and integrity, harmonious caste, tribal caste or communal relations, to resist sedition, defamation, contempt of court, criminal incitement and to preserve the decent public behavior or morality, the constitution prohibits state to impose absolute control over the media by amending the acts.
The apex court, which has a power to judge the reasonable restrictions, has already taken a step by issuing show cause. However, when Supreme Court is looking into the matters and issues of the constitutionality, the bar leadership continue to stage street demonstrations.
It seems to be an act of another absurdity on the part of so-called champions of freedom of expression and speech. The actions show that the bar leadership is trying to prejudice an outcome of the court verdict appealing people’s court and law of the court at the same time.
“Speech and expression are birth right of every human being. The constitution simply recognizes it but it is not conferred. It is precious human rights. The amendment tries to scuttle some of these precious rights,” said former attorney general Karki. “Objectives of these amendments are to curtail or restrict freedom of speech and expression in different ways.”
A guaranteed freedom of opinion and expression covers all forms of vocal expression, which make use of the power of speech but it has many other aspects as well, including an individual’s freedom to express any view he wishes, however offensive it may be to others, in private or public, the freedom of the press to express any view in print, the freedom of authors to write and publish, and the right of filmmakers to record and distribute films for private and public consumption.
“This is an interim nature of the government so it cannot introduce a law which is of controversial nature with serious implications and impinges on the freedom of individual. Only people’s representative parliament could introduce law of this nature,” argued former attorney general Karki to the bench.
Ordinance - which is just an action and decision of executive - lacks parliamentary sanctions or approval. Without the sanction of legislature, ordinance is valid only for six months and that is temporary. How could a temporary law impose restriction on a permanent nature of rights?
“Whatever imposition you impose, anything can be judicially tested. Our constitution accepts press as a fourth state. According to article 13 of the constitution, institution of press is regarded as a separate entity and it has given separate right,” said advocate Karki.
Source of right of freedom of speech and expression originated from the article that is 12 (a). “Creature of the constitution cannot destroy the creator itself. People are the creator of constitution not creature,” said advocate Karki.
Among the list of restricted activities, FMs are prevented from disseminating any information, which will ‘prejudice the interest of political parties’, but starting from preamble, the objective of electronic media act is to disseminate the news and views. By just changing one terminology, why the government wants to create such a hue and cry and invite international as well as national condemnation for no gain?
It is so absurd that in a multi party democracy, one could be prohibited from criticizing the political parties. “Government media are indulging themselves against very basis of pluralism and multi-party polity. Interestingly, the monarch himself has expressed his commitment to preserve and promote it,” said advocate Karki.
It is a matter of great pity that the constitution - which protects everyone’s rights and freedom has been left itself unprotected. The freedom of expressions and other rights guaranteed by the constitution is itself under threat from both the sides; the quarters or sectors that the constitution has so far protected. The recent example is the media blackout of the news concerning the show cause order of the apex court. This seems to be strange.
Among five freedoms, the constitution of Kingdom of Nepal 1990 places the freedom of speech and expression at the top. This is not an accident or otherwise, it is by design or deliberate choice to place it on the top. Minus freedom of speech and expression, other freedoms would become irrelevant or become of no use.
As it is so precious and important, the wide spread protest is inevitable whenever there is any attempt in restricting freedom of expression and speech, which will curtail the rights of all the citizens irrespective of profession.
