Ob­jec­tion­able Bill

The le­gal com­mu­nity and the me­dia in Nepal have locked horns over the Con­tempt of Court Bill, with the lat­ter claim­ing that it would sti­fle press free­dom.

Southasia - - CONTENTS - By Taha Ke­har

Nepal’s le­gal com­mu­nity and the me­dia have locked horns over the Con­tempt of Court Bill, with the lat­ter claim­ing that it would sti­fle press free­dom.

Flout­ing the au­thor­ity of a court of law is billed as an of­fence. As a re­sult, ev­ery le­gal sys­tem op­er­ates on a se­ries of pro­vi­sions to pre­serve the sanc­tity of the ju­di­cial process. In the ab­sence of such reg­u­la­tory mech­a­nisms, the le­gal frame­work would lose its cred­i­bil­ity, trans­parency and ef­fec­tive­ness. Fla­grant vi­o­la­tions of the court’s power would nav­i­gate the sys­tem into a down­ward spi­ral.

The writ­ing is on the wall. And yet, Nepal’s le­gal and me­dia fra­ter­nity has raised ob­jec­tions to the Con­tempt of Court Bill 2014.

At a time when the ju­di­cial process is in a des­per­ate need of over­haul, the bill served as a bea­con of hope. Nepal’s ju­di­ciary has been snowed un­der se­ri­ous pres­sure over the is­sue of ju­di­cial ap­point­ments.

A frame­work of rules to tack­les the con­tempt of court laws would serve to em­power judges and up­hold the im­age of the ju­di­ciary. If the bill be­comes a law, judges will have the dis­cre­tion to pe­nal­ize any­one who acts in a man­ner that un­der­mines the dig­nity of the court. Fur­ther­more, th­ese dis­cre­tionary pow­ers could be used to ef­fec­tively stream­line the jus­tice dis­pen­sa­tion process. The Con­tempt of Court Bill 2014 is a dou­bled-edged tool that both en­hances and curbs the role of judges in the de­liv­ery of jus­tice. Un­der the bill, a judge can be pros­e­cuted if found guilty of com­mit­ting such crimes.

How­ever, Nepal’s lawyers and jour­nal­ists have found a red her­ring in the law. They talk about the no­tion of for­mu­lat­ing a sep­a­rate act on con­tempt of court but their fo­cus is on how to re­duce the col­lat­eral dam­age. Min­is­ter for Law, Jus­tice, Par­lia­men­tary Af­fair and Con­stituent Assem­bly Naraw Hari Acharya in­sisted that pub­lic opin­ion should be sought on the bill. Although the min­is­ter em­pha­sized the im­por­tance of an in­de­pen­dent ju­di­ciary, he told the par­lia­ment that the bill needed to be thor­oughly re­vised.

Sec­tion 4 of the pro­posed bill con­sid­ers the pub­li­ca­tion of any false or defam­a­tory ma­te­rial on court cases that po­ten­tially erodes the court’s cred­i­bil­ity as con­tempt. How­ever, Acharya is of the view that the bill does not cat­e­gor­i­cally de­fine what con­sti­tutes false or defam­a­tory con­duct. As a re­sult, the law needs to be clear and ef­fec­tive and not serve the nar­row in­ter­ests of an in­de­pen­dent ju­di­ciary.

Acharya’s pro­posal to seek pub­lic opin­ion on the bill has been largely shaped by pres­sures from the Fed­er­a­tion of Nepali Jour­nal­ists and the Nepal Bar As­so­ci­a­tion. More­over, in­ter­na­tional press ad­vo­cacy groups have launched a scathing at­tack on the le­gal doc­u­ment. The most popular crit­i­cism lev­eled against the bill is that it cur­tails press free­dom and com­pletely dis­man­tles the free­dom of ex­pres­sion.

When the bill was ini­tially pre­sented in the par­lia­ment, re­la­tions be­tween the me­dia and the le­gal com­mu­nity were strained. Acharya’s decision to al­low the gen­eral pub­lic and stake­hold­ers to de­lib­er­ate the mat­ters will serve to im­prove ties be­tween lawyers and jour­nal­ists. And yet, the main pur­pose of the pub­lic scru­tiny is to gauge whether the bill sti­fles the free­dom of ex­pres­sion.

Th­ese are purely ex­tra­ne­ous con­cerns that could fur­ther un­der­mine the ju­di­ciary’s im­age and frus­trate the demo­cratic process. Harihar Da­hal – who is the for­mer pres­i­dent of the Nepal Bar As­so­ci­a­tion – has also ob­jected to the bill. How­ever, he has

raised a se­ries of per­ti­nent points to jus­tify his po­si­tion. For in­stance, the ab­sence of clar­ity in Sec­tion 4 could lead to a dan­ger­ous form of ju­di­cial dom­i­nance that could threaten me­dia free­dom. Cit­ing the ex­am­ples of jour­nal­ists such as Harihar Bi­rahi and Kusum Shrestha who have been sanc­tioned by the Supreme Court on charges of con­tempt, Da­hal be­lieves that some checks and bal­ances needed to be de­vel­oped.

De­spite th­ese con­cerns, the grow­ing em­pha­sis on the in­ci­den­tal ef­fect of the bill has be­come the or­der of the day. Yubaraj Ghimire – who is the ed­i­tor-in-chief of a lead­ing news­pa­per in Nepal – has vo­cif­er­ously ar­gued that it is not the right time to pro­mul­gate the act be­cause the ju­di­ciary is fac­ing crit­i­cism over the ap­point­ment of judges.

In­ter­est­ingly, the le­gal com­mu­nity ap­pears to be di­vided over the bill. Ram Kr­ishna Ti­malsena – for­mer regis­trar of the Supreme Court – has ar­gued that both the me­dia and the ju­di­cial sys­tem need to be in­de­pen­dent.

More­over, Ti­malsena has cap­i­tal­ized on the fact that the press does not ob­tain free­dom by sim­ply at­tack­ing the con­duct of the ju­di­ciary. On the con­trary, there is a press­ing need for ac­count­abil­ity. Ti­malsena’s ap­proach to jus­tify the im­por­tance of the bill is a clear tes­ta­ment to how a le­gal doc­u­ment can be been blown out of pro­por­tion.

Con­sti­tu­tional law ex­perts have stoked the ar­gu­ment fur­ther by sug­gest­ing that reg­u­la­tions on con­tempt are a fun­da­men­tal el­e­ment of a demo­cratic so­ci­ety and should not be mis­con­strued.

Nev­er­the­less, main­stream opin­ion has de­cried the bill as an in­fringe­ment of civil rights and press free­dom. The func­tional au­ton­omy of the ju­di­ciary has been pawned away in the face of such false pro­pa­ganda.

The ju­di­ciary has also re­sisted at­tempts to un­der­mine its dig­nity. Re­cently, the Supreme Court has re­fused a writ pe­ti­tion chal­leng­ing the Con­tempt of Court Bill for cur­tail­ing press free­dom. Re­ly­ing on the fact that the bill has yet to be passed, the court de­cided that it had no ju­ris­dic­tion on the mat­ter.

On the other ex­treme, the Fed­er­a­tion of Nepali Jour­nal­ists has re­quested the gov­ern­ment to with­draw its support for the bill. The me­dia ap­pears to have raised the specter of the past and termed the bill as a haunt­ing re­minder of the Rana fam­ily’s dic­ta­to­rial rule. Sev­eral me­dia pro­fes­sion­als have vowed to take a stand and pre­vent the gov­ern­ment from mak­ing a dread­ful mis­take.

Un­for­tu­nately, the me­dia fra­ter­nity has writ­ten off the bill as a con­spir­acy to muz­zle me­dia free­dom and fail to see how it can pro­duce a sense of or­der. By view­ing the bill as a form of reprisal against the me­dia, jour­nal­ists have shown con­sid­er­able dis­re­gard for the demo­cratic process. More­over, it is un­for­tu­nate that the le­gal com­mu­nity has also crit­i­cized the bill as an ex­ploita­tive tool.

Con­tempt of court laws are the bedrock of a demo­cratic sys­tem. They must ex­ist to so­lid­ify the le­gal struc­ture and en­sure the con­ti­nu­ity of re­spect for the ju­di­cial process. How­ever, it is in­trigu­ing to note that the me­dia and le­gal fra­ter­nity have fo­cused more on col­lat­eral dam­age rather than the im­me­di­ate ef­fects of the bill. Only time will tell how the ju­di­cial struc­ture is strength­ened and pre­served. The writer is a poet and au­thor. He is a law grad­u­ate of SOAS.

Newspapers in English

Newspapers from Pakistan

© PressReader. All rights reserved.