11-17 July 2014 #715

When the hammer comes down

It is no longer enough to condemn the wrong-doers, they must be named and shamed
Anurag Acharya
Press freedom pundits have passionately debated the contradiction between freedom of expression and judicial contempt, within and outside the court. But there seems to be a general agreement among scholars that ‘Contempt of Court’ is a loosely defined concept in law - the Proteus that can take any shape and form.

The Supreme Court of Nepal would do well to take note of this legal scope and limitation when it decides to harass Nepali journalists for criticising its verdict and questioning personal conduct of presiding judges, as was evident in the contempt case against Kantipur. The honourables sitting on the highest bench should know, public faith and respect are not constitutionally guaranteed unlike their own positions.

Kantipur and other papers (including this publication) criticised the most recent appointments of justices at the Supreme Court, citing their tainted backgrounds. When the government appoints an individual who ruled that gambling is not illegal because it is “a mental exercise” to a position where he has to decide between life and death, the media cannot sit back and applaud. What is worrying though is that one of those appointed is now hearing the case against Kantipur editor Sudheer Sharma and others on the contempt of court case.

In March 1979, European Court of Human Rights (ECHR) passed a landmark judgement involving the British government and The Sunday Times. The newspaper had published a report in September 1972, criticising a verdict by the British court on settlement claims of families affected by a pharmaceutical company called Distillers.

The Sunday Times faced contempt charges and was banned from publishing further reports on the matter. The publishers filed a case against their government in the European Court citing breach of Article 19 of ICCPR which guarantees freedom of expression and press freedom. After five years of intense deliberation, the European Court ruled in favour of the publication holding that the right to freedom of expression guaranteed not only freedom of the press to inform the public but also the right of the public to be properly informed. The Court concluded that the risk of prejudicing an ongoing case or contempt did not outweigh the social need to protect fundamental human freedom within its broader meaning.

Back in Nepal, in the coming weeks the court will hear arguments of both sides in the Kantipur case and the publication may be let off with a note of caution and a modest fine. But there are more worrying signs on the horizon in the form of the government’s Contempt of Court bill. The idea seems to be that by choosing a high profile target like Kantipur, the rest of the Nepali media will cow down. They should know better.

Former Chief Justice Ram Prasad Shrestha, who earned public faith and respect through his integrity and crusade against corruption, lamented in his final days at the Supreme Court that Nepal’s judiciary had become a hotbed of corruption because of tainted justices.

In his attempt to rid the judiciary of corruption, Shrestha took action against several incompetent judges and recommended impeachment of a sitting judge to the parliament, unprecedented in the history of Nepal’s judiciary. Before leaving office Shrestha wrote: "Only if there are honest people heading public institutions and constitutional bodies, can corruption be effectively checked." It is indeed sad that, barring our spartan Prime Minister, few heading constitutional bodies or state institutions today are uncompromised.

The dissolution of the first Constituent Assembly and the hopelessness surrounding the second have convinced not just common people, but also the generation of younger leaders about the incompetence and fecklessness of their party bosses, young leaders who are now increasingly finding their voice within the party and holding the top brass accountable.

The resolute stance taken by UML Minister Lal Babu Pandit against allowing a corrupt bureaucrat to be transferred to the Finance Ministry, despite being bullied by Finance Minister and Home Minister from his own party is an example worth emulating.

For far too long, the honest and upright within political parties and Nepal’s bureaucracy have been silent witnesses to corruption and abuse of power of their bosses. It is time they found their voices.

Anurag Acharya is program manager at the Centre for Investigative Journalism.


Read also:

Contempt of freedom, Editorial

Justifying the justices, Binita Dahal

Constitutional déjà vu, Damakant Jayshi

Supreme corruption

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