Curbs on press freedomConstitution drafters seriously misunderstood idea of press freedom, which differs from right to communication
Bhanu Bhakta Acharya
The constitution of Nepal 2015 is one of the youngest in the world. Following its promulgation on September 20, 2015, there was not adequate time to critically evaluate its provisions because of crises created by the Madhes agitation and a border blockade. As a result, media and communication stakeholders in Nepal have not yet substantially discussed the content of the constitution with regard to press freedom. This article looks at whether Nepal’s new constitution is progressive in comparison with its previous two constitutions: Interim Constitution-2007, and the Constitution of the Kingdom of Nepal 1990.
The new constitution guarantees “full freedom of the press” in the preamble, making press freedom strong and inviolable. To proceed in the spirit of the preamble, Article 17 (2a) assures that every Nepali citizen will have freedom of opinion and expression. Article 19, which focuses on press, publication and broadcasting rights, guarantees that there will not be prior censorship against any media for publishing, broadcasting or disseminating any news content, including news, editorials and feature articles. Similarly, no media will be closed or its registration cancelled and no media equipment will be seized for printing, publishing or broadcasting of any content. Finally, Article 27 guarantees all citizens the right
These provisions make it safe to assume that the constitution puts great emphasis on respecting press freedom and freedom of expression. None of the rights related to press freedom is actually free, however—they are constrained more widely than in the previous two constitutions. Article 19 (1) of the present constitution, for instance, presents an extended list of restrictions, such as infringing upon territorial integrity, nationality and harmonious relations between the Federal Units, and committing acts of hatred to labour and incitement to caste- and gender-based discrimination. These restrictions were not mentioned in the previous two constitutions. Article 19 (2) also introduces a restriction, not mentioned in the previous constitutions, to allow the government to make laws to regulate radio, television, online content or any other form of digital or electronic equipment or means of communication. Similarly, Article 19 (3) tries to justify the possible obstruction of communication means, including press and other news media. Further, Article 103 (3) and Article 187 (3) significantly limit, in the name of good faith, media interpretation and analysis with respect to discussions inside Federal Parliament and the State Assembly. Also, Article 273 (10) allows the suspension of the aforementioned Article 19 during a state of emergency. All of these restrictive clauses go against the spirit of the constitution’s preamble, in which complete press freedom has been assured.
In comparison to the International Covenant of Civil and Political Rights (ICCPR-1966), the scope of “reasonable restrictions” of the present constitution is far broader, vague and unreasonable. Article 19 (3) of the ICCPR, to which Nepal is party, specifies certain restrictions based on only the following two purposes: (a) to respect the rights and reputations of others, (b) to protect national security, public order, health or morals. In the past, a number of international media missions to Nepal assessed the legal framework of Nepal’s press freedom scenario against international standards. Most of Nepal’s restrictions related to freedom of opinion and expression, and press and publication related rights were found to be opaque and unnecessary. Those media missions recommended that press freedom not be curtailed in emergency situations, except in accordance with the ICCPR-1966.
Perhaps the biggest flaw in the present constitution with respect to press freedom is the selection of the term “right to communication” instead of right to press freedom, or press, publication and broadcasting rights. The terms “communication” and “press” have completely different scopes of knowledge and interpretation. The “right to communication” is a very broad term and has seldom been understood in any legal document across the globe to mean “press and publication rights” or “press freedom rights”. The term “press” is specific to news media in any form—from print to online journalism. The term has a centuries-long inheritance of freedom of opinion and expression for public cause and usually goes against the interests of political authority. The term “press”, therefore, cannot and should not be replaced by other terms, such as “communication”, “mass communication” and “mass media”. If we need the right to communication, it is already incorporated in Article 17 (2a) as the right to freedom of opinion and expression. The constitution drafters seriously misunderstood the idea of press freedom, which vastly differs from the concept of communication rights. Ultimately, it is the stakeholders of free press who will suffer because the constitution drafters negligently used the wrong terminology to denote press and publication rights.
The new constitution does nothing to significantly widen the scope of freedom of press and expression. All of the aforementioned provisions were incorporated in the previous Constitutions, 2007 and 1990. The only thing that media and journalism professionals should be excited about in the current constitution is the placement of press and publication related rights in Article 19 as this calls to mind the Universal Declaration of Human Rights-1948, in which Article 19 ensures freedom of expression.
To conclude, Nepal’s media stakeholders seem to have focused on rewriting the phrase “full freedom of the press” that was in the Interim constitution and that was removed in the draft of the present constitution. However, they might have paid less attention to the restrictions in the clauses related to press, publication and broadcasting rights. It is unreasonable that the full press freedom set out in the preamble is significantly restricted in the actual articles of the constitution. In comparison to the earlier two constitutions, the scope of press freedom in the new constitution is limited. A critical assessment of the constitution from the perspective of press freedom and freedom of expression is, therefore, warranted to update the constitution in accordance with international standards.
Acharya is a researcher on media ethics and accountability and is affiliated to the University of Ottawa, Canada