Watching the watch-dog via Media Council Bill

This article was originally published by Bidhyalaxmi Maharjan in the Himalayan Times on December 15, 2019.

The freedom of expression is foundational for building a free society, where individuals and groups are free to choose the best for themselves. The same freedom or the fight for it introduced and furthered democracies around the world, including Nepal. The Constitution of Nepal 2015 thus has recognized the freedom of opinion and expression as a fundamental right of its citizens.

One cannot imagine a free exchange of opinion and information among citizens in the absence of a free media. The realization the freedom of expression is only possible when a free and independent media exists. Recognizing the same the Preamble of the Constitution guarantees full freedom of the press.

While the Constitution is embellished with the freedom of opinion and expression, and the freedom of the press, the jewels of our democracy, it is unfortunate that the current government has proposed a bill in the federal parliament that puts freedom of the press in a great danger. Bill Related to the Amendment and Integration of Laws Related to Nepal Media Council, which will replace the existing Press Council Act 1992 is being debated at the National Assembly currently. The Bill envisions a new Media Council with an objective to develop and promote healthy, independent, respectable and responsible journalism while maintaining professional conduct.

Press/Media Council is a self-regulatory body, meant to be formed by and for the media. While the press is considered the watch-dog of government and society at large, press councils act as the watchdog of the press itself. Thus, its primary function is to administer Code of Conduct (COC) agreed upon by the members of press, and register and investigate into public complaints related to the editorial content in media.

However, the Bill with its stringent provisions against the violation of Journalists’ COC along with modeling of the press council as a government controlled regulatory agency has raised alarms among media professionals and civil society stakeholders. There are several sections in the Bill that establishes the Council as an entity powerful enough to impose hefty fines on media, while some sections puts the independence of the Council at risk.

According to article 6.4 of the bill all media outlets and journalists are obligated to follow the directive of the Council to comply with the COC. The mandatory enforcement of COC, with the Council as an enforcement agency only lends to creating fear and self-censorship in the media. Voluntary compliance of ensures that all members of the media respect the Code of the Council and commit to implementing it.

Furthermore, the composition of the Council plays determining role in whether the Council can function in an independent manner. Article 7.1 allows the government to nominate and appoint eight members of the council, including the chairperson, amongst the total of nine members. In addition, as per article 7.3 that the recommendation committee tasked with recommending a person for the position of chairperson of the Council consists only of government appointees.

With the majority of members of the Council appointed by the government on recommendation from the ministry, it surely raises suspicions that the council may become subject to interference and control from the government, which can jeopardize the self-regulatory nature of the council.

More dubious is article 10.2 that allows the government to dismiss the chairperson and council members if the any one of five conditions for disqualification are found in them. These conditions are lack of work capability, unsatisfactory performance, bad behavior, not fulfilling his/her official duty with due honesty, and is insane. The five stipulated conditions for dismissal are not defined well, and leave much room for discretionary interpretation. As a result, the government can misuse it authority to control the council and its work by firing council members at its whim.

One section that caused the Bill to be labeled draconian is article 10.1, which stipulates that media outlet, editor, journalist or reporter be fined from NRs 25,000 up to NRs 1,000,000 if found guilty of causing harm to the reputation of complainant due to media content published in contravention of the Code of Conduct. However, it is worth noting that the offence of harm to reputation is already addressed in Section 306 and 307 of the Civil and Criminal Codes Act 2074, in section dedicated to libel and defamation. Thus, the inclusion of such a provision in the Bill seems unnecessary. Moreover, such provision elevates the council to a quasi-judicial body with little certainty that the council will have required expertise to issue verdicts on cases of harm to reputation.

There are several other provisions in the bill that tends toward restricting the independence of the Council. The Bill, if implemented in its current form, will have severe consequences on press freedom in Nepal.