The federal structure is also expected to bring in new challenges, not only in its evolution, but also for press freedom as the provinces and local bodies are entrusted with some responsibility regarding regulation of local media.
After years of instability due to political transition, Nepal is finally on the road to stability after three levels of successful elections – local, provincial and general – held between May and December 2017. The coalition of the Communist Party of Nepal (United Marxist Leninist) and the Com-munist Party of Nepal (Maoist - Centre) won a majority in all three elections and formed the fed-eral government under the premiership of KP Sharma Oli and provincial governments in six out of seven provinces. The alliance of parties based in the Madhes or the southern plains has formed a provincial government. With two major parties of the coalition now working on the unity process, PM Oli looks set to lead the country for a full term, bringing much-needed stability in the country’s governance.
The Madhes-based parties, which had previously boycotted the promulgation of the Constitution, vowed to disrupt the elections, but ultimately did not follow through. The three elections, which transpired without noticeable violence, finally gave a legal validity to the Constitution of Nepal 2015. The participation of all political parties, except a splinter group of the Maoist party, was considered a good sign, since the dissatisfaction of the Madhes-based parties could be ad-dressed in the parliament through a democratic process.
However, implementation of the new federal structure, the new Constitution as well as the new Criminal Code and Civil Code is not expected to be smooth. Both the Criminal Code and Civil Code consist of provisions that could have direct implications for the media. The federal struc-ture is also expected to bring in new challenges, not only in its evolution, but also for press free-dom as the provinces and local bodies are entrusted with some responsibility regarding regula-tion of local media.
It flags tough years to come for journalists as they face unprecedented legal pressures and oth-er harassment, attacks and threats for their reporting of critical issues. Impunity for crimes against journalists is a long-standing issue still awaiting proper redress in the country.
The media and the court
During the year, the judiciary of Nepal was at odds with the media on several occasions. How-ever, these cases were not prolonged and were not unfavourable for the media and journalists.
On February 25, 2018, Chief Justice Gopal Parajuli passed an order asking the Press Council of Nepal (PCN) to ban publication of news criticising him in Kantipur daily. The daily had published a series of investigative reports about discrepancies in the date of birth of the Chief Justice. Media reports alleged that he had revised the date of birth in his official documents in order to extend his tenure. In a contempt case filed by an advocate, Chief Justice Parajuli heard the case – de-spite the issue being about him – and issued an interim order, also calling on the PCN to probe the news reports in question. The order asked the PCN to investigate whether they violated the journalists’ code of conduct and to ensure that no news criticising the Chief Justice was pub-lished again.
Journalist Krishna Gyawali, edi-tor Sudheer Sharma, and publisher Kailash Sirohiya appeared in the Supreme Court for the hear-ings before the case was discontinued when the Chief Justice was forced to re-sign.
The Judicial Council determined the Chief Justice should be relieved from the post after gathering official documents to establish his date of birth, which turned out to be the date as claimed by the newspapers.
In November 2017, the Patan High Court backed attempts by the police to force editors of sev-eral online media platforms to reveal their sources. The Crime Division of the Metropolitan Police Office in Kathmandu wrote to several online media platforms asking them to disclose the source of secret appraisal reports of top police officials that were published following a controversy on the appointment of the Inspector General of Police (IGP).
The online media platforms filed a complaint against the police’s request claiming that it infringed press freedom and requested the court’s intervention. But the Court ruled that the police action did not violate freedom of the press thereby refusing to issue any order. The police mentioning the court decision again wrote to the online media pushing for disclosure of the source. After an outcry from journalist unions, including a statement of support from IFJ-affiliated Federation of Nepali Journalists (FNJ), the PCN intervened, met with senior police officials and urged them not to proceed with the request. The police were investigating unlawful access to the files and the alleged tampering with confidential appraisal reports.
Policing the media
The Nepal Police, on at least two occasions in 2017, tried to slap fabricated charges on journal-ists as a means to silence them.
On June 17, 2017, police arrested editor Khem Bhandari and executive editor Ganesh Bhatt of Manaskhanda daily and charged them under the Public Crime and Punishment Act in Kanchan-pur district, western Nepal. It followed a news report that claimed that two women arrested by the police were innocent. After a strong protest by journalists and unions, the police released Bhandari and Bhatt after 28 hours.
On April 1, 2018, the District Court in Bajura cleared journalist Chakka Bahadur Malla of charges of rape due to lack of evidence. Malla, the district correspondent of Image Channel TV, was ar-rested and taken into custody on July 20, 2017, as he was about to register a case of attack against four municipal officials who allegedly beat him up on July 13. He alleged the four munici-pal officials attacked him near the district headquarters and sustained injuries. The police had later framed a rape charge against him and kept him in custody for more than eight months.
Prakash Dhakal, a journalist with Adarsha Samaj daily, was attacked by police as he was report-ing on a demonstration by students of the Prithvi Narayan Campus in Pokhara, western Nepal. During the police’s attempt to disperse the demonstrators, the police charged on Dhakal despite him showing his press ID card. Dhakal received a minor injury on his leg.
Police also arrested more than a dozen journalists, especially those considered to be close to the Maoist group calling for boycott ahead of the elections, as ‘pre-emptive measures for security’. Between May 2 to 11, 2017, half a dozen journalists from various districts were arrested by police. Most were kept in detention without charge until the conclusion of the local elections.
However, Pustaman Gharti, a provincial delegate of FNJ charged with causing ‘public offences’ was kept in custody for 55 days before he was finally released. A Supreme Court case filed by executive committee member Janmadev Jaisi on behalf of the FNJ was ultimately instrumental in securing the release of the journalists.
Similarly, at least eight journalists were arrested from various districts in November 2017 ahead of the general election. Again, these journalists were kept in detention without any charges until the conclusion of the election. Although the election proceeded without major violence, there were some incidents of harassment and mistreatment of journalists including an attack on Dinesh Thapa, correspondent of OnlineKhabar.com, at his home by political cadre on November 25, a day before the first phase of the general election.
On July 31, 2017, the Election Commission (EC) issued a circular to the PCN ‘to present the chief editor of the Deshantar weekly before the EC within three days’ for clarification on two news items that the constitutional body claimed to be ‘false’ and ‘baseless’. The news items in question were published on July 23 and 30 accusing the EC of financial misconduct. The EC also directed PCN to take action against the chief editor Kabir Rana. However, the PCN took no action.
One of the biggest investigative news stories of the year in the country was about the state-owned Nepal Oil Corporation and the financial misconduct by its Managing Director Gopal Khadka. However, the publication of a se-ries of news reports about the misappropriation of funds and misuse of authority by the govern-ment-appointed civil servant also saw attempts to silence the media.
On August 4, 2017, Khadka threatened journalist Dilip Paudel of Nagarik daily on the premises of the Ministry of Supplies, where Paudel was on a reporting assignment. Paudel had first reported misappropriation of funds by Khadka while buying various pieces of land for NOC at a very high price. Despite the Parliamentary Public Audit Committee’s order of an inquiry into the matter, Khadka had claimed that there was no truth in the news. He threatened Paudel that he would end his journalism career adding, “you have also a family, think about it”.
On August 17, Khadka filed a SLAPP (Strategic Lawsuit Against Public Participation) as a defa-mation case against Nagarik daily, claiming NPR 800 million (USD 780,000) in damages with an intention to silence the media house from publishing reports about his alleged corruption. The Kathmandu District Court official served a notice to the daily’s directors Binod Raj Gyawali and Shova Gyawali, editor-in-chief Guna Raj Luitel and correspondent Dilip Paudel on September 1. The media house filed a counter-claim of NPR 1.5 billion (USD 14.2 million). Khadka was later dismissed from office by the government on September 18. The legal case did not progress since Khadka had vacated his post but the case was widely discussed as a significant attempt to silence the media in Nepal.
In similar circumstances, Shivahari Ghimire of the daily Nagarik received a threat over news of illegal deforestation on May 6, 2017. The president of the Saraswati Community Forest Conser-vation Committee and an official at the District Forest Office in Lalitpur threatened Ghimire over the phone after news of deforestation was published. Umesh Paudel, a journalist with Naya Patrika daily, was also threatened via phone by businessman GP Paudel, on September 11, 2017, regarding news on a crypto-currency business. Paudel is one of the two journalists who reported ‘Gravity Currency’ as fraud business and named GP Paudel as the head of that busi-ness.
There were a number of attacks on journalists; the most concerning on January 15, 2018 when Sudeep Kaini, a correspondent with Kantipur, was attacked by a group of five assailants. While reporting on illegal sand extraction in the Marsyangdi river that was endangering local settle-ments, he was manhandled by the assailants, his camera and cell phone were snatched and his photos deleted. They also warned him not to reveal the incident. Kaini sustained a neck injury before being rescued by local residents.
Since May 2017, the Federation of Nepali Journalists (FNJ), has recorded 61 incidents of press freedom violation. Among those, were 27 journalist arrests; 9 attacks; 13 threats; 12 cases of seizure of media equipment and 10 incidents of verbal abuse. The FNJ concluded that although the number of press freedom violations has decreased over the past few years, the trend con-tinues and there has not been any improvement in security or mechanisms to protect journalists. As a consequence, impunity and self-censorship remain the main issues of press freedom.
Another press freedom watchdog, the Freedom Forum, in a review of 2017 concluded that the election campaigning and activities failed to show due respect to freedom of expression and press freedom, thereby witnessing a surge in the number of violations.
Longstanding issues of press freedom in Nepal, meanwhile, still await redress. The regulation of online media, and social media, continues to draw attention. The controversial Online Media Di-rectives, issued in February 2017, remain despite hefty criticism from the major media and un-ions. The directives are restrictive in nature and give arbitrary powers to the Department of In-formation (DoI) to restrict and harass online media, thus threatening freedom of expression.
Along with the directives, Clause 47 of the Electronic Transaction Act’s (ETA), continue to pose a threat for freedom of expression and are used to harass journalists. The state is using Clause 47 to ensure the implementation of the directives by saying that the media platforms listed with the PCN do not attract the clause whereas any other online publication of content can be charged with the clause criminalising online expression. Further, the Local Government Operation Act has provisions for canceling the license of FM radio stations.
Impunity and self-censorship are two key issues that continue to impede free expression in the Nepali media community. According to the FNJ records, out of 36 journalists killed since 1996, only six cases have gone on to prosecution. The level of threat and harassment of journalists, and the impunity to perpetrators, has led to a situation where journalists, especially those outside Kathmandu in regional areas, find it increasingly difficult to report on critical issues. In Kathman-du, the biggest media market, corporate interests area seen as playing an increasingly influential role in shaping content.
However, the biggest challenge for Nepal’s media, journalists and unions is the changes expected to be brought about by the new federal structure. Each of 753 municipal bodies and seven provincial governments are au-thorised to devise regulations – including those to regulate media, especially local media.
And there are already concerns regarding some of draft regulations as they con-tain provisions that could be misused to curtail freedom of the press. The FNJ has taken the ini-tiative to form a committee to devise model federal regulations relating to media, and having dis-cussions with concerned central authorities to ensure that the proposed regulations do not curtail press freedom and journalists’ rights.
Challenging times ahead
While Nepal’s constitution is explicit in mentioning press freedom and other related freedoms, many state actors and authorities are yet to whole heartedly accept it. The rise of social media, fake news and its viral spread online, have raised some issues that some state actors believe can only be controlled by tougher regulations.
The end of the political transition is a welcome phase as it will hopefully bring political as well as policy stability in Nepal. However, Nepal’s Parliament now has hundreds of laws to be drafted and discussed. And alongside municipal and provincial governments, the parliament is also vest-ed with the power to regulate local media. The years ahead will not be easy for Nepal’s inde-pendent and critical media.