Jane Elizabeth Kirtley is an international campaigner for freedom of press and professor of media ethics and law at the University of Minnesota in Minneapolis. Nepali Times spoke with Kirtley on a recent American Centre-sponsored trip to Nepal about coverage of the insurgency, and the laws governing freedom of press and the right to information in Nepal.
Nepali media and the emergency:
You have a security service and military understandably anxious about Maoist terrorists in the western parts of the country. You've got a government moving into what I'd characterise as a lock-down mode in terms of information. They are providing information, but aren't facilitating journalists to independently verify it. Journalists are reduced to becoming government mouthpieces, or forced to weigh the risks of going out and covering the story themselves. The risks as they have been described to me are twofold: they may become targets of the Maoists, or get into trouble with the military. This is a no-win situation.
Government controls on the press:
I think there is great potential here, the press seems very vibrant. But people seem intimidated-how much of that is fear for physical safety and how much is a reaction to the decree of the state of emergency with its list of things you're not supposed to report, I don't know. None of those, in my reading of the English translation, are specific. They're pretty vague and broad and that makes it very easy for the government to say you've stepped over the line. From an American perspective it would not be acceptable to have this kind of list. First of all, it is way too broad and not specific enough. Second, the only time the press can be restrained is when the government can demonstrate that a publication would definitely cause harm to national security. One example that continues to amaze me is that you are not supposed to publish anything that would demoralise the army. I asked somebody at the Ministry of Defence what that meant. He gave me a long, convoluted answer that basically came down to, in my interpretation: "We don't want them to publish anything that was going to make the military feel badly about what they are doing". Well if the military is doing something wrong, they ought to feel badly about it. And the notion that it is dangerous to society to engage in that kind of debate in a country that calls itself a democracy is unacceptable.
US military support:
I am going to say what I think, with the disclaimer that it is not the view of the US government. As somebody who spent all of her professional life fighting for press freedom in the US and abroad, these are my concerns: I do think there are parallels between the situation in Nepal and what has been happening in the US since 11 September. So far the US government has not taken any steps to overtly silence the press. They've made some requests along the way. You may remember that when the first bin Laden videotapes surfaced, Condoleezza Rice called up the networks and said please don't run these tapes. I wrote a column about why I thought the request was outrageous. There were an awful lot of journalists prepared to do what she said. There's room for discussing whether it was a good thing to run the tapes or not. But I know that it is not a good thing for government to tell you not to do it. Every government has an obligation to protect the people, but they must do it within the law and constitutional standards.
At a conference I attended there was one person from the military. He commented that journalists were more interested in getting a story, any story, than in reporting an accurate story. He was basically saying that you make something up rather than tell the whole truth. To my mind, it was very good that journalists in the room heard him say that, I think it is important for them to appreciate that view. Both the military and the press, I hope, want the public to get accurate information on what's going on. How do you achieve that so journalists don't feel they're being used or being made conduits for information that they cannot check on the one hand, and on the other, so that journalists don't jeopardise legitimate security concerns because there always are some, though not as many as the military thinks there are.
Nepal's right to information act:
I looked over it and generally think it is not bad. It has a lot of things I thought were good and if they survive parliament and get passed, they could serve everybody's interests very well. Often in new and emerging democracies freedom of information laws focus on the rights of the journalists, which is also the case with your law. I believe the right of access to information in the statute should be extended to everybody, not just to journalists. Also, constitutions aren't self-executing and the fact that you have a constitutional right doesn't mean anything unless you have a statute to back it up.
Freedom of information laws can also have perverse effects, when it has exemptions or allows government to withhold certain information. In those cases, they will withhold it. Also, if you draft a statute saying journalists have the right to do this, then somebody has to figure out whether you are a journalist or not. The Maoist editors arrested, for example-are they journalists? This is not all that clear cut, and if it is a government official deciding whether or not you are a journalist, that is a problem. I think there are little time bombs ticking in that law. But having said that, I believe in having some kind of statutory right of entitlement and right to appeal within the agency and in a court of law.
The US freedom of information law was last amended in 1996 principally to deal with the issue of electronic storage of information, because the law spoke of paper documents. For a while government officials were saying that this isn't a paper document, we don't have to give them to you. A statute is sort of frozen in time with circumstances as they are now. You need to draft your law such that you anticipate change.