If govt institutions are broken and press silenced, we are going down a dark pathWith the formation of a federal state and a left alliance-led government in power possibly for the next five years, what is in store for the democratic process in Nepal?
A free press and an impartial, competent and effective judiciary are essential for the success of democracy. While the judiciary should serve as the guardian of the freedom of press, the press is essential in fueling public trust in the judiciary. Disagreements between the two bodies make for a dangerous situation, yet such a scenario is characteristic of what is occurring between the judiciary and the press at this juncture. Mukul Humagain and Kamal Dev Bhattarai talked with veteran rights activist and leader of civil society Krishna Pahadi about the repercussions of such conflict.
With the formation of a federal state and a left alliance-led government in power possibly for the next five years, what is in store for the democratic process in Nepal? And what role should the press and the judiciary, in particular, play at this juncture?
For the success of any democracy, there is a need for an accountable executive, a dynamic legislative, an impartial and competent judiciary, a free and critical press, and a vibrant civil society. These instruments have separate and essential roles. The role of the executive is to implement the laws, that of the legislative to enact the laws, the judiciary to uphold the law, and the media is to inform the people.
In regards to the specific relation between the press and the judiciary, they are both vital pillars of democracy and any conflict between them should be curbed at the very outset. The judiciary serves as the guardian of the freedom of press, and the press is essential to fuel public trust in the judiciary. Any attempts to discredit the judiciary or to intimidate the media are both counterproductive.
The problem at this juncture is that the current judicial positions were allocated on the basis of political nepotism and division of power.
This puts into question whether the judiciary fulfils the constitutional mandate that it be independent, impartial and competent.
You’ve said that there should be no conflict between the press and the judiciary and yet isn’t the recent contempt of court case filed against Kantipur daily indicative of exactly that?
The question of Chief Justice (CJ) Gopal Prasad Parajuli’s date of birth based on discrepancies in his official papers was raised before he assumed the post of the Chief Justice. His old date of birth published by the Judicial Council indicates that he is of retirement age (above 65), but once he assumed the post of CJ, he used his political and administrative clout to change his date of birth so his term could be extended. The role of the media is to be critical and to inform the people, which is why Kantipur raised the issue regarding Parajuli’s birthdate. The CJ’s reaction to this news was to file a contempt of court case against Kantipur, which is thoroughly unjustified. Such an incident does not fall within the parameters of contempt of court, as it has in no way obstructed the court from delivering justice and has not defamed the court.
This is not the first time Parajuli has used his position to his advantage. He also issued a contempt of court charge against Dr Govinda KC when the doctor started a hunger strike with demands that action be taken against Parajuli for reinstating Dr Shashi Sharma as the Dean of the Institute of Medicine. What happened in Dr KC’s case was that the charge was issued by Parajuli, the subject was apprehended on the order of Parajuli, and the case will also be heard by Parajuli’s bench in the Supreme Court (SC). This is unprecedented and it does not show a rational use of justice. He has harmed the reputation of the judiciary.
Parajuli stated that there should be a practice of pre-censorship of media, but nowhere in the democratic world does anyone have the right to tell the press what to and what not to write. Instead of upholding the role of the judiciary as the guardian of the press, Parajuli has turned it into an organ that impinges on press freedom.
It is absolutely essential that this conflict between the judiciary and the media is brought to an end. In order for this to happen, Parajuli will have to make amends. He has several courses of action that he can pursue. First, the original copies of the decisions made by the Judicial Council and the Constitutional Council in regards to Parajuli’s academic and other qualifications have to be produced in court. Second, according to his current citizenship certificate, Parajuli turns 65 in April, 2018, after which he is legally mandated to retire. So it makes sense for him to either take a leave starting immediately, or to submit his immediate resignation, as there are only two months left till April. If he chooses to eschew either of these options, an impeachment motion will have to be lodged against Parajuli.
The Nepali press has faced a number of attacks but it has stayed strong and has maintained its freedom. Now, we should stand with the press and show solidarity so this freedom continues. The media is just as important as any other organs of the state, and it should never be supressed.
Is the resurgence of civil society possible given the conjecture that the left alliance-led government could impinge even further on the limited space given to civil society and the media?
There must always be a system of checks and balances. If our government goes off track and starts implementing compromised policies, then these issues will have to be addressed. It is the judiciary’s responsibility to make sure that the legislative keeps on track. The problem is that recent situations are indicating that the judiciary is compromised. And if the judiciary is compromised, then who will be responsible for keeping a check on the legislative or the executive? This shows a troubling future.
The Truth and Reconciliation Commission (TRC) and the Commission of Investigation of Enforced Disappeared Persons (CIEDP) were formed to investigate conflict-era cases of human rights violations, but they have been unable to carry out their mandate and have faced obstruction at numerous levels. How can we view this?
When the peace process first began in 2006, there were demands that conflict-era human rights violations be addressed, which gave rise to the Comprehensive Peace Agreement (CPA). But these demands are far from being addressed in actuality. This is because political power plays were given precedence over providing justice to victims, because the mandates of the two commissions were very weak and thus had difficulty in functioning, and because division of power and party politics influenced the functionality of various institutions including the two commissions. So the strength of the TRC and the CIEDP has been compromised and the conflict-era violators of human rights have been given a free pass.
The Maoist forces do not wish for the two commission to fulfil their mandates for obvious reasons, and so they try to delay investigations. But the Nepali Congress (NC) and the CPN-UML also have a hand to play. When the NC and the UML are on good terms with the Maoist forces, they do not highlight the inability of the TRC and the CIEDP to fulfil their mandates and allow the delays to pass without comment, but when the Maoist Centre was strong in government and the NC and UML felt threatened, news of the commissions’ shortcomings were suddenly highlighted. Politics is being played with the delivery of justice.
What kind of society are we creating if we cannot even deliver justice to our citizens?
Those nations in which crimes against humanity are being committed have one thing in common: broken and ineffectual government institutions. When such institutions are not functional, when parliament is only a rubber stamp, when the government cares only for power, and when the media is silenced, then it makes for a dangerous situation.
Burma is a prime example of such a case. Aung San Suu Kyi serves as the democratically elected head of state, yet the government is quite obviously a military dictatorship. So the democratic transformation of Burma was piecemeal, leading to ineffective government institutions. Add to this the lack of civil society or press, and you have a formula for conflict and an environment which allows for crimes against humanity. This formula has come into effect in Myanmar’s northern state of Rakhine. Similar cases can be seen in Yemen, Burundi, and even North Korea.
So if our government institutions are ineffective and broken, and if our press is silenced, then I fear that we could be going down a dark path. At this juncture, a free press and a vibrant civil society are essential.
Here, we’d like to touch upon your disassociation with Amnesty International (AI) in 2014. Do you still hold the belief that it has lost its way?
I have been wholly committed and devoted to non-violence and goodwill. In 2014, AI committed a crime. They promoted hate speeches and secession-ism in relation to cases regarding Nepal.
AI London dubbed Dr CK Raut a vocal proponent of independent Madhes and, in December 2014, stated that he should be allowed to speak, that cases against him should be withdrawn, and that he should be allowed political space in Nepal. But Raut’s campaigns are fuelled by hatred and malice; he favours violence as a means of political struggle. So their support for him showed me that they had lost their way. I wrote a letter in this regard to the Secretary General of the AI International Secretariat, but he failed to respond. AI failed to respond to our grievances. That is why I would like to forget my three decade long association with the organisation.