Kathmandu, Aug. 1: The preliminary draft of the new constitution that finally came to the hands of the Nepali people after a long wait has aroused their hope for getting a constitution of their own writing through the Constituent Assembly (CA).
A report on the people’s submission on the constitution draft is currently being discussed at the CA Constitutional Political Consensus and Dialogue Committee. People overwhelmingly participated in the public opinion collection on the draft constitution coordinated by the CA Committee on Citizen Relations and Public Opinion Collection.
The two-week-long public opinion collection period showed that people from all walks of life have great expectations from the upcoming constitution of the federal democratic republic of Nepal. As the constitution is also a reflection of the nationsâ€™ norms and values as well as the aspirations of the people, how the constitution is drafted and what it constitutes does catch the people’s attention.
And one major constituent of any democratic constitution is Freedom of expression and opinion, which is indispensable for any democracy. The draft constitution has guaranteed the freedom of expression and opinion as fundamental rights in Article 22 (2) (a). However, the proviso attached to it has generated a doubt over the peopleâ€™s mind of whether the constitution fully guarantees the freedom of expression and opinion in actual practice.
The proviso under Article 22 reads– nothing in Sub-clause (a) shall be deemed to prevent the making of an Act to impose reasonable restrictions on any act which may undermine the nationality, sovereignty, independence and indivisibility of Nepal, or federal units, or jeopardizes the harmonious relations subsisting among the people of various caste, ethnicity, religion, or communities, or incites racial discrimination, or untouchability, or disrespects labour, or any act of defamation, or contempt of court, or an incitement of offence, or is contrary to decent public behavior or morality.
This lengthy proviso has made the Nepali media fraternity unhappy as they feel that it would provide a ground for the State to curtail the right to freedom of expression, an indispensable base for press freedom or the freedom of press in the future.
In view of senior journalist Taranath Dahal the proviso is overburdened by words as it has set 14 conditions for the exercise of the right to Freedom of Expression which is against the international practices as well.
The freedom of expression is recognised as a human right by the Universal Declaration of Human Rights (UDHR) 1948 and also mandated by Article 19 of the International Covenant on Civil and Political Rights (ICCPR) 1966, to which Nepal is a State party.
According to Article 19 of ICPPR, everyone shall have the right to hold opinions without interference and everyone shall have the right to freedom of expression. This right includes freedom to seek, receive and impart information and ideas or all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of choice.
It adds that the exercise of these rights carries ‘special duties and responsibilities’ and may “therefore be subject to certain restrictions” when necessary for respect of the rights of reputation of others, or for the protection of national security or of the public order or of the public health and morals.
Also a noted Right to Information (RTI) campaigner and former President of Federation of Nepali Journalists (FNJ), Mr Dahal goes with the aforementioned four conditions set by the ICCPR regarding the restrictions on the exercise of freedom of expression. Though Article 24 of the proposed draft has ensured the Rights regarding mass media, Dahal says the proviso under it could be used to draft laws to unnecessarily regulate radio, television, online or the use of any other kind of digital or electronic equipment, printing press or other medium of communication.
The concept of state regulation on mass media, one of the elements of freedom of expression and opinion, is against the democratic school of thought, he said. Self-regulation and self-discipline in media is the international practice, he said, expressing his dissatisfaction over the draft. Similarly, the draft has failed to go in line with the international norms and values regarding the RTI rights as it excluded the word ‘impart’ leaving only the right to demand and obtain information in Article 32.
The entire media fraternity including the umbrella body of Federation of Nepali Journalists have expressed their reservations over the proviso while some have lambasted the way the constitution draft has treated the right to freedom of expression and opinion.
As freedom of expression is fundamental to the exercising of every other freedom, unnecessary restrictions on it cannot be entertained. To impose restrictions on it is to suppress democracy and all forms of human freedom including press freedom. As a result, the CA must revise the draft, treating freedom of expression in accordance with the international standards and thus promote self-regulation and self-discipline in the press too for its healthy and fair development, and thereby of democracy at large.
By Pabitra Guragain