In the past week, we’ve seen multiple instances revealing vulnerabilities in our democratic system—and a complete absence of political leadership.

The first case is that of journalist Dil Bhusan Pathak, against whom the police issued an arrest warrant on Tuesday. The police were quick to act after they received complaints from Jaiveer Deuba, the son of former Prime Minister Sher Bahadur Deuba and Foreign Minister Arzu Rana Deuba, over a YouTube video alleging Deuba’s meteoric rise as a businessman at a young age.

In Pathak’s case, the Police invoked Article 47 of the Electronic Transactions Act (ETA), a clear effort to censor freedom of expression. In the video, Pathak uses the example of Deuba to argue that the government backtracked from promoting transparency about the earnings of political office holders.

Every sentence that Pathak speaks in the video can be well defended in a neutral court of law. There are only two problematic sentences, where Pathak claims about Deuba’s business expansion in Australia and Dubai. As an experienced journalist, Pathak must have good sources to defend these claims as well.

Every citizen must be allowed to speak as much as Pathak does without becoming a victim of the state’s vindictiveness. If the police arrest Pathak, they must be able to prove in court that his video is libellous, and thus, unfounded. Unfortunately, it is Nepal, and the police could easily bypass norms applying to media and democracy.

There is a reason why libel laws in democratic states protect the media against the excesses of the government. One of the primary functions of the media is to exact accountability from the public office holders on behalf of the citizens. In doing so, the media are allowed to say and criticise the public office holders or their beneficiaries as long as they do not resort to disinformation. In this instance, disinformation is an intentional act of publicising fake information, while knowing that it is untrue.

It appears that Pathak was trying to make the government more transparent and accountable regarding the financial dealings of politicians holding public office. He was questioning why the government had stopped publicising the wealth of cabinet ministers and prime ministers before and after holding office.

The use of the ETA, designed specifically for exchange of electronic data, to curtail freedom of expression is clearly an overreach although the Article 47 deals with publication of “illegal” content in electronic form.

The only caveat, in this instance, is that journalists are required to do something more than just regurgitate what’s already available in the marketplace of ideas. Even when raising legitimate questions about the government and trying to exact accountability, journalists are required to do the extra legwork of producing evidence to back their claims and arguments rather than relying on a “trickle down” of information from “sources” that sounds more like hearsay than journalistic work. This is required as much to gain trust as to serve their functions.

Of course, many journalists opt for the easy way out. It is always difficult to extract information about corruption and malpractices when the state mechanisms themselves are doing their best to hide or protect such information. When the state acts, it is usually to punish those who threaten the ruling regime or its members. Otherwise, the state always has information at its fingertips, information that can be used to punish people who engage in corruption or money laundering.

The second instance, again, is that of an overzealous district judge, who, rather than advising the application of libel law through a due deliberation, issued an interim order to delete news already published in two websites. The two websites had published news about the chair of the Securities Board of Nepal (SEBON), which the judge summarily described as constituting libel. The judge, in this instance, bypassed protections given to the media by the law and did not allow the defendants a chance to prove why and how their news content was factual and gave a prima facie judgement.

The third instance involves the Supreme Court, which has consistently delayed hearing on some 52 constitutional appointments made by Prime Minister KP Sharma Oli during his previous tenures. Oli made these appointments after dissolving the Parliament and changing the law related to the Constitutional Council through an ordinance. He did the same thing twice.

His moves, made from December 2020 to February 2022, were opposed by legal activists and cases were filed in the Supreme Court. For various reasons, the SC kept on delaying the hearings, and finally the court was supposed to give a verdict last week. However, the court has once again delayed giving out a verdict. Advocates watching the Supreme Court closely believe that the SC’s failure has raised suspicions about its motives.

If the SC deems illegal the moves taken by Oli at that time, then it raises a host of political and legal questions, the ramifications of which would be long lasting. For one, it could raise questions about the legality of appointments of some of the Supreme Court judges themselves as well as of those appointed to the Commission for the Investigation of Abuse of Authority.

Whatever the ramifications, recent examples show that the judiciary is not as free or independent as it is supposed to be, and there are serious shortcomings in the judicial system that cannot be reformed in the short term.

All of these instances point to a weakening of our democratic system that we cannot simply wish away. At a time when financial irregularities and unwillingness of the government to implement new measures for control of money laundering and corruption are pushing the country towards greater indiscipline, state institutions are increasingly being controlled and hollowed out by sinister political actors eager to protect themselves.

In such a scenario, it is either the media, the people, or the international community that can provide a solution. Despite its contributions, the media fraternity is slowly losing its trust. The international community is too sensitive and afraid of putting pressure on the government or supporting meaningful civil society initiatives that can exact accountability from the ruling regime.

The only solution left is for the people to mobilise politically. It’s as if a political movement is already taking shape, but has not yet found true leadership.