Judicial Dignity No Excuse for Muzzling Freedom of Speech
NEPAL: Upholding Judicial Dignity No Excuse for Muzzling Freedom of Expression
July 2, 2014
The Asian Human Rights Commission (AHRC) objects to the Contempt of Court Bill, which the government has tabled in Parliament on 9 June 2014. The Bill, if passed, will restrict freedom of expression and the freedom of the press. The Bill, while purporting to uphold judicial dignity, curtails individual freedom enshrined in Article 19 of the Universal Declaration of Human Rights (UDHR), Article 19 of the International Covenant on Civil and Political Rights (ICCPR), and Article 12 (A) and 15 (1) of Nepal's Interim Constitution, 2007.
Article 3 and Article 4 of the proposed bill have questionable provisions. The Article 4, which defines contempt of court, is unclear. Terms like 'defamatory', 'malicious', 'false', and 'confusing' are not defined. This ambiguity can allow the court to arbitrarily interpret and misuse such terms and level charges against journalists and citizens who may have legitimate criticisms against judges and their decisions.
Contempt of court should be used when hurdles are created in the working of the court. But court orders themselves must be in accord with law. If court orders are themselves unlawful, it is not contempt of court to seek legal remedies. On the other hand, analyzing a decision of the court in a healthy manner and honorably disagreeing with the court should not be considered contempt of court.
As per the Bill, the bench, which has suffered the alleged contempt, has the right to pass judgment in the contempt case. Both the offended party and the adjudicator being the same person or body is something that infringes the separation of powers principle. If the same judges will be both the offended party and the adjudicators, contempt of court risks becoming a ruse for judges to settle personal vendettas.
Furthermore, the process of introducing the Bill in Parliament has been secretive. This is unfortunate, as Nepal needs a law to safeguard the independence of the judiciary, and lack of stakeholder consultation and public discussion can only make citizens suspect the motivations of the Executive and the Judiciary.
As this Bill impacts the freedom of the press, the freedom of expression and opinion, and the right to information law, it should have been prepared through a consultative process in a balanced manner. Contempt of court is aimed at safeguarding the independence of the judiciary. But care needs to be taken that it does not arrive with a heavy price for media and individual freedom.
The Nepal Judiciary, and especially the Supreme Court (SC), has had a fragile relationship with the Nepali media. This was evident in the criticism of judges recently appointed to the SC. Certain media reports had questioned the appointments in light of the controversial records of the appointees. If the government's motive behind introducing this law is, in fact, to curb legitimate criticism, the effect on society will be severe; democracy will be stalled without media being able to serve as watchdog.
The trend has been of the Nepal government enacting restrictive laws to curtail individual freedoms and using security agencies to intimidate those courageous enough to criticize the powerful. The cases of Raju Sah from Bara district and Abdul Rehman from Saptari district are two examples. Sah was arrested last month for posting an angry comment on Facebook over a widely shared photo of Home Minister Bamdev Gautam stepping over a divider in the middle of the street while holding up traffic. "He should be shot in the back", commented Sah on Facebook. Rehman, on the other hand, was arrested and detained for 20 days simply for making a comment on a news report indicating improved security in Saptari district. "How is security improving when I have to pay NRs. 50,000 simply to get back my own motorbike that had been stolen?" questioned Rehman. He was booked under the Electronic Transactions Act (ETA) for cyber crime and brought to the Kathmandu District Court to be prosecuted. Rehman is currently on bail.
When powerful politicians make a mockery of court judgments that is contempt. Balkrishna Dhungel, for instance, is someone who has been convicted of murder and sentenced to life imprisonment, in addition to the Court ruling that his property be confiscated. However, he roams free. The executive and judiciary have been unable and unwilling to incarcerate him. This indignity goes unmentioned. However, legitimate questions in the media about publicly relevant facts related to newly appointed judges have met judicial ire.
The judiciary is a vital organ of the state; it must be treated with dignity and respect. But fundamental rights cannot be taken away in the name of protecting the dignity of courts. Respect for the freedom of expression and media freedom as enshrined in the UDHR, ICCPR, and the Interim Constitution of Nepal itself needs consideration. The government may wish to consider withholding passage of the bill, until wide consultations with stakeholders are held.