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Freedoms & the Professional Safety of Nepali Journalists

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It's difficult to say if conditions for media and journalists in Nepal are worse or better than before 2006, writes Shiva Gaunle.

Nepal's Constituent Assembly is now in the process of drafting a new constitution. The country has been governed under an Interim Constitution since 2007 and governments formed since have been of an interim nature. Nepal is now passing through a transitional phase as the old constitution has been scrapped and the task of drafting the new one is yet to be promulgated. As such, various exercises and experiments have been tried out over the years thinking about only political popularity, irrespective of the constitutional and legal provisions. The laws, policies and practices relating to Freedom of Opinion and Expression (FOE), Right to Information (RTI) and the wellbeing of the working journalists need to be understood in this backdrop.

FOE and RTI are important constitutional bases for empowering the people. While evaluating the strength of democracy in any country, we have to look into how effective people's participation in the governance system and procedures is. The bases can be based to evaluate how democratic Nepal's new order has been based on the track record of implementation particularly of the rights of Freedom of Opinion and Expression and the Right to Information.

The Interim Constitution has guaranteed the freedom of opinion and expression (See note 1). But there still are problems in principle. It is yet to be concluded if the constitutional strength of Freedom of Opinion and Expression will be amendable or non-amendable. Further discussions and clarity on the extent FOE and press freedom may be regulated by the laws are essential. As several words/phrases having vague meanings have been used in the Interim Constitution and also in the proposed draft for the new constitution, there is no guarantee that the vague terminology would not used in the future for curtailing the freedoms in the name of implementing them.

The Interim Constitution 2007 has guaranteed the freedoms of opinion and expression and rights relating to the mass media. But a sub clause of the same Article has a vague provision with regard to making laws to impose bans on freedom of opinion and expression and media rights and therefore the danger of freedoms being curtailed looms large. For example the prohibitory clauses have vague phrases such as 'anything that goes against 'public norms' 'morality', and 'to discourage practice of untouchablity and ethnic and gender discrimination' that would allow the government to make laws to restrict the freedoms of opinion and expression, and media rights. The Constitutional Committee under the CA has made the restrictive clauses more vague by adding phrases like 'acts to damage the relationships between the federal units' or those that 'damage the harmony between janajatis, religions and communities' (See note 2).

The Federation of Nepali Journalists (FNJ) is against such vaguely defined or rather undefined legal restrictions on the freedom of opinion and expression and media rights. It demands that the restrictions be clearly defined and that the restrictions if any, should be based on what is acceptable in democracies internationally. Article 19 of the Universal Declaration of Human Rights, could be a basis for resolving these issues.

Right to Information
The government recently attempted to classify what information could be made public under the RTI Act. This decision on the classification of information that took effect on 5 Feb 2012 (which the government upon opposition by civil society groups said had been "withheld") serves as a glaring example of the fact that the basic rights related to free expression could face a crisis at any time. The efforts of the government to make the RTI Act 2007 practically ineffective were foiled for the moment due to pressure from the journalists, human rights activists and professionals. Responding to a petition to stop the government from implementing the classification, the Supreme Court has ordered the government a stay order until a final verdict is reached.

The Clause 3 (3) of the Act has a provision describing the information the public agencies can withhold. But a committee coordinated by Chief Secretary of the Nepal Government, Madhav Ghimire, classified the information in a manner that would have made the constitutional guarantee useless by allowing the government to withhold practically everything that the people would have wanted. For example, the decisions taken by the Cabinet claiming it to be a secret. Likewise, for another example, investigations on issues related to corruption. But the government was compelled to backtrack from enforcing the classification following protests by the FNJ and other civil society groups, and an interim order of the Supreme Court.

Why had the government tried to classify information as intended? An application had been submitted at the Foreign Ministry on behalf of Freedom Forum, an NGO, seeking the report submitted to the Ministry by a task force constituted by the government after the instruction of the Legislature Parliament to approve the constitution of the International Criminal Court. The Ministry later responded that it could not provide the report according to a decision of the committee of information classification - so in effect the classification was in place and operational before the public had information about it (See note 3). This showed that the government wanted to hide information it wanted to, which is basically the reason behind the classification of the information. In a meeting with FNJ, the prime minister had said that the classification would not be implemented and it would be withdrawn verbally before the Supreme Court order.

As such, the challenge to implementation of the RTI at this moment is that the government does not want to implement it in the spirit it was passed, and is instead waiting for the opportunity to impose restrictions at an opportune moment. This is something we need to be vigilant about.

Media policy
The government has initiated discussions on a document that it has called 'a draft of the new information policy'. Basically, the policy is control oriented and some of its provisions are highly objectionable. Provisions like 'to inspire the journalists to be fully aware about their responsibility and duty' and 'to inspire the government to guarantee that the media do not create any obstacle to independent and healthy democratic environment by supporting or opposing particular organizations and individual' are objectionable and unacceptable. We cannot agree with these provisions for two reasons. First, it is the constitution, not the policy that can fix a limit to the freedoms. Secondly, it is not the government order but codes of conducts prepared by the journalists themselves that should make the journalists responsible. The effectiveness of self-regulation in Nepal is something else that can be discussed separately.

The proposed media policy is also surprisingly silent about the New Media and has ignored the issues like obligating the government, political parties and media houses to respect to freedom to press and expression, while it has given priority to making the journalists responsible towards their duty. FNJ, thus, has objections not only its contents but also its timing because it was drafted without consulting with the concerned stakeholders. It was also not appropriate to waste time in preparing an information policy at a time when constitution drafting is still work-in-progress.

As in other countries, the use of New Media is also increasing in Nepal. The number of journalists having access to online media is increasing every day (See note 4). Blogs, online journalism and various social networks have become platforms to exercise the freedom of expression in Nepal. But there also are signs that the government is not ready to tolerate these means of expression. Remarks by Prime Minister Dr. Baburam Bhattarai are testimony about the mindset. At a recent function he said, "The social networks are disseminating materials which go against the social norms, morality and public welfare, which disturb the social harmony and spread hatred and terror, and are against the national dignity and pride" (See note 5). This is an emerging concern in Nepal, and when analyzed together with the attempts to classify information, indicates that the government is not as supportive of free expression and free information as it may have committed elsewhere.

The seriousness of the remark of Prime Minister is that he has criticized the social networks by using the same words in the 'prohibitory clauses' of the constitution. Thus, FNJ wants the vague words or phrases removed in the new constitution.

Last year, the Home Ministry, had issued an 'urgent notice' warning that any electronic media which was found airing 'obscene' materials and violating the public moral and norms, could be fined Rs. 100,000 and served a five-year jail sentence as per the Electronic Transaction Act (See note 6). This Act was passed after 2006 and two clauses in the law have been used to press charges against journalists. The irony is that while material of the nature is 'acceptable' in print, it is not online. This notice of the Home Ministry and the above mentioned remarks of the Prime Minister, again, indicate the mindset of control in government that extend to free expression even on the Internet.

Safety and security
The media sector that is physically insecure cannot disseminate information and opinions fearlessly. Nepal has a long history of attack on journalism.

When we analyze data of the past year, we can conclude that physical security was one of the biggest problems faced by Nepali media. Journalist Khilanath Dhakal of Biratnagar who was attacked some months ago has still to get the courage to work fearlessly. The Mission team to Biratnagar will be meeting him. Similarly, another journalist Kishor Budathoki who was based in Shankhuwasbaha has been compelled to leave his workplace (See note 7).

According to the figures prepared by Press Freedom Monitoring Unit of FNJ, 99 incidents relating to violation of the press freedom were registered in 2011 (See note 8). The data includes a case of a mysterious death. Further, there were 25 attacks, 28 threats, 15 reports of misbehavior, seven arrest, one abduction and eight incidents of burning of newspapers. Likewise, the report shows four incidents of attacks and threats on media companies, five incidents of obstruction in free journalism and five attacks on the vehicles of the media. Journalists have been attacked and threatened by the government, political parties and their sister organizations, individuals holding public posts, civil servants and security agencies.

The tendency of attacking journalists, threatens and misbehavior them has made them feel insecure. Besides, attempts have also been made to weaken the dignity of journalists by forcing them 'to write this' and 'not to write that' by activists claiming to represent different interest groups. Activities like setting fire on the vehicles of journalists, newspapers, and offices of the newspapers are weakening the morale of journalists. Civil servants have misbehaved journalists in Kathmandu and Tanahu districts. One of the commanders of Janatantrik Terai Mukti Morcha (a Madhesh-based group) has threatened to attack the FMs radios of Jhapa district if they did not compulsorily broadcast news and programs in Maithili language (See note 9). This shows how the journalists have been undergoing mental torture. On the basis of the incidents that occurred in eastern Terai as well as mountains, we could claim that no one involved in such attacks and atrocities were booked. This also clarifies how impunity is flourishing in Nepal.

In many places, journalists were attacked not for what they wrote but for how they write. The practice of resorting to attacks rather than filing a complaint at the Nepal Press Council for seeking remedy for any news item with which one is not satisfied is regrettable. That said the Press Council also has much to do towards assuring the public of professional regulation.

Although many persons involved in physical attacks on journalists and issuing threats have been identified, only a negligible number of them have been investigated and punished. These are examples that the government is not serious in safeguarding media freedoms.

Instead of taking action against those involved in the anti press and free expression activities, the government has in the past tried to withdraw the cases filed against individuals involved in the abduction and killing of the journalists. However, one attempt to withdraw a case was foiled by a Supreme Court order (See note 10).This is one example of how the government and political parties are promoting impunity.

Like physical insecurity, professional insecurity is also a major problem of the Nepali media. There is little or no collective bargaining while the labor relations at media companies are far from ideal. Journalists are compelled work in situations where they do not get appointment letters and in some cases do not receive the minimum pay on time. This situation can neither help their professional growth nor boost their self-confidence. Due to lack of adequate investment in the media and environment for competitive professional growth, the journalists are also insecure in terms of career development (See note 11).

The government runs the media but even it does not implement the WJA. FNJ has time and again been raising voice for ending such a paradoxical situation. Some weeks ago, FNJ filed a writ at the Supreme Court seeking a court order for implementing the WJA which the court responded to immediately and has ordered the government to take the necessary actions (See note 12).

But court verdicts in favor of journalists or the media sector are not sufficient by themselves. Journalists Ram Prasad Dahal and Dharmendra Karna are the latest examples of this (See note 13). Therefore, if the media sector does not move ahead by forging strong unity, chances of the freedoms being snatched and compromised are high.

Conclusions
It is difficult to say the conditions for media and journalists are worse than that before 2006 but it is also difficult to say that the situation has improved. It is therefore essential to continue to remain vigilant to make sure that media rights, and FOE and RTI are guaranteed in the constitution. The laws related to FOE and RTI and media must be at par with international standards, which is about encouraging a plurality of voices for debate that is what real democracy is about. Besides this, journalism in Nepal can be professional only if impunity is ended, and journalists are provided editorial freedoms by both the state and their employers.

The FNJ believes we can protect the basic freedoms discussed above by uniting and having one voice both in the country and internationally. We need to give the government and political parties that media freedom, and free expression and RTI cannot be compromised in the new constitution. Likewise, we also need to develop and strengthen mechanisms and capability of journalists to seek constitutional and legal remedies when their rights are violated. There are also issues about the capacity of journalists that can be enhanced through education and properly targeted training. Having professional journalists that are well trained is one of the best deterrent against any attempt by the government to curtail the basic freedoms of the media and the general public.

Gaunle is the President of Federation of Nepali Journalists (FNJ). Paper entitled " The Challenges of Protecting Freedoms and the Professional Safety of journalists in Nepal" presented on February 24, 2012, to the International Fact Finding and Media Advocacy Mission to Nepal (February 23-27, 2012)

Notes

1. The Interim Constitution 2007 has the provision of freedom of opinion and expression in Article 12(3) and provision of right to publication, broadcast and press in article 15 with such prohibitory sentences
2. Draft report submitted by the Committee on Fundamental Rights under the Constituent Assembly, pages 17 and 21
3. Application submitted by the chairman of Freedom Forum and former FNJ president Taranath Dahal on 9 December 2011 and the letter written to Dahal by section officer of the Foreign Ministry Uttam Kumar Shahi on 23 January 2012.
4. Based on a study of the FNJ
5. Written speech delivered by the Prime Minister at the program 'Beginning of digital signature' organized by Science Ministry on 9 February 2012.
6. Notice issued by Home Ministry in December 2010
7. Morang correspondent of Nagarik Daily Khilanath Dhakal was attacked on 5 June 2011 and Sankhuwasbha correspondent of the Annapurna Post, also vice chairman of FNJ Sankhuwasabha, Kishor Budathoki was attacked on 12 August 2011. Manoj Rai is in the Morang jail for his involvement in the attack on Dhakal whereas the police is still said to be searching Parshuram Basnet, the mastermind behind the attack. Likewise, the district court Sankhuwasabha sentenced Bikas Rai and Rupak Rai to five years in jail for their involvement in the attack on Budathoki. But Budathoki has been forced to move from his hometown and is practicing journalism from Biratnagar owing to insecurity he feels in his home district.
8. For detail see at: www.fnjnepal.org
9. See separate report of the Press Freedom Monitoring Unit of FNJ
10. Although the government tried to withdraw cases filed against the Maoists cadres involved in the abduction and murder of journalist Prakash Singh Thakuri, the Supreme Court prevented the withdrawal and the Kanchanpur District Court, in July 2011, decided to hear the case again.
11. a. According to a study, 45 percent working journalists have not received appointment letters whereas the clause 3 of the WJA requires employers not to make journalists work without giving them appointment letters. Likewise, 37 percent journalists have not been paid the minimum salary although the requirement took effect in April 2009. Further, 32 percent were unable to get the promised salaries regularly whereas 14 percent journalists had to wait two months or more to get their salaries. Clause 5 (2) of the WJA has a provision allowing media companies to appoint only 15 percent journalists on contracts but the study by the Minimum Wage Committee showed that only 21 percent journalists had permanent appoints. b. Working hours and leave as mentioned in the WJA have not been enforced. Data of the Committee showed that 36 percent media houses have no provision of holiday/leave; 44 percent do not even have provisions allowing journalists to take a day off on public holidays. Further, 47 percent journalists did not get home leave, 33 percent sick leave, 67 percent maternity leave and 51 percent did not get leave for performing even the last rites (of parent). c. The study further said 39 percent did not get annual pay hikes, 87 percent did not get welfare fund money, 95 percent did not get disability allowance, 77 percent did not get provident fund, 77 percent did not get treatment expenses and insurance, 91 percent do not gratuity, 29 percent did not get festival allowances and 76 percent did not get over time. (Source: Media study report, Neal Government, Minimum Wage Fixation Committee.)
12. Justices Girish Chand Lal and Prakash Wasti gave the verdict in a case filed by Shiva Gaunle against the Information and Communications Ministry
13. When the Rajdhani Daily dismissed him from service unlawfully in 2005, journalist Ram Prasad Dahal filed a case at the Supreme Court and the Court issued its verdict in June 2011. But the verdict has not been enforced. Likewise, Dhamendra Karna, FNJ central member, had filed a case at the Labor Office a year ago after his service was terminated by Nepal 1 TV. The office though gave verdict in favor of Karna three months ago but the TV station has not allowed him to rejoin work.


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