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.
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.