Media In Promotion Of Human Rights And Constitutional Safeguards

By Sudhamshu Dahal
(sudhamshu.dahal@yahoo.com)

-- The writer is a Nepali research scholar in the Department of Media Sciences at Anna University. He is doing his PhD on culture, community and media. This paper was presented at a national seminar on "Human Rights and Factionalism" organized by S.V. University, Tirupati, 30-31 March 2007. --

Nepalese people’s awareness of fundamental rights and human rights consciousness during the insurgency and King’s absolutist rule were upheld intact by media by risking their own existence.  Subsequently, that played a key role in their fight for justice, peace and freedom.

While media is considered to be a part of the civil society arena, it is well known that media overlaps other functional areas of democracy and governance. For example, support for media may yield results in governance activities, particularly those related to decentralization, anti-corruption, and citizen participation in the policy process and also in ensuring human rights. The rule of law may be further institutionalized by support for an independent media that keeps a check on the judiciary, reports on the courts, and promotes a legal enabling environment suitable for press freedom.

If the media is to have any meaningful role in democracy, then the ultimate goal of media should be to develop a range of diverse mediums and voices that are credible, and to create and strengthen a sector that promotes such outlets. Credible outlets enable citizens to have access to information that they need to make informed decisions and to participate in society.

Free media is considered the pillar of a modern democratic state. Press freedom is prerequisite to make the state mechanisms responsible and accountable towards people. The media plays a leading role in creating fair public opinion, and is one of the most powerful means to put across people’s problems, desires and aspirations to the government is the media. If their freedom is not guaranteed, the process of creating fresh public opinion falters. Until and unless people are fully informed about activities of the state, no one can look forward to a responsible and accountable government. In brief, without freedom of speech and expression, and democratization of the mass media, people’s rights cannot be protected.

The immediate aftermath of ethnic and factional conflict may pose the strongest challenge for implementing democracy. By means of the integrated strategy on democracy media can contribute more directly to the restoration and/or establishment of democracy.

Community broadcasting has enormous potential to introduce plural voices to the media sector, to deliver development messages, and to empower communities to take charge of their own information needs and to develop appropriate formats for meeting them.

This paper investigates the role of media as one of the pillars of nation building and takes up a case of new constitution making in Nepal. Nepal is moving in a path of sustained peace after overcoming a decade’s long armed insurgency. The consciousness for peace has largely been an understanding among mainstream political parties and Maoist (who were fighting for a decade’s long war with state to establish egalitarian society) and solidarity among civil society players. Although the political understanding has been successful to contain the cases of repeated terror and violence in the country but a sustained peace could come only through incorporating and nurturing people’s right in deeds. This could be attained and realised through clearly crafting people’s rights in new constitution for Nepal.

Context

Civil liberties have been limited, but Nepal’s government has not been regarded as among the world’s worst violators of human rights in its history. Nevertheless, human rights violations have increased substantially since the escalation of civil conflict around 2001, and it was one narrated grave by the international rights organisations after King Gyanendra dismissed the people’s government in extra constitutional manner seizing powers to establish his absolutist regime in 1 February, 2005.

Beginning the armed conflict in Nepal, the security forces engaged in substantial numbers of human rights violations. In the third year of announced armed insurgency “People’s War” by a self under-grounded splinter faction of one of representative communist parties in Nepal’s parliament in 1996, security forced launched a massive cracking movement called “Kilo Serra Two”, this was the beginning of worse human rights violation in the country. “People’s War” is now known world over as 21st century’s Maoist armed conflict in Nepal.

According to the United Nations (UN), Nepal led the world in arbitrary abductions and detentions by security forces in large part as a result of the civil conflict. The conflict between the Communist Party of Nepal (Maoist) and government security forces has resulted in numerous allegations of human rights violations by both sides of warring parties, with most victims being unarmed civilian non-combatants. The Maoists have been accused of unlawful killings, torture, and tens of thousands of abductions. Security forces have been accused of disappearances, unlawful killings, arbitrary arrests, torture, and obstructing both courts and human rights investigations—all with impunity.

Outside of the conflict, Nepal’s civil liberties are tenuous, and human rights abuses are common. Discrimination on the basis of caste, gender, ethnicity, and sexuality is ubiquitous, and domestic violence, forced labour, and forced prostitution and women trafficking are pervasive. However, various organizations including media have emerged to address the needs of persons suffering discrimination. Still, civil liberties such as freedom of speech, press, and lawful assembly have been severely curtailed with King Gyanendra’s suspension of the constitution beginning 2005.The governments before King’s assumption of power have also been criticized for ratifying human rights treaties and conventions but not incorporating human rights laws into legislation. Indeed, there are no direct laws against domestic violence or police torture, and the police are accused of excessive force and corruption. The word “Police” synonymises more to fear and mistrust than its common meaning to its populace.  Because of poor communication, police outside the capital often have tremendous autonomy and discretion in handling law and order matters and often do so in ways not consistent with the law.

On 8 November 2006, Nepal’s coalition government of Seven Party Alliance (SPA) and the Communist Party of Nepal (Maoist) signed a Comprehensive Peace Agreement to end 11 years of fighting, rewrite the country’s constitution (including whether it will remain a monarchy), and establish an interim government. Before that, the Nepali Army and Maoists agreed to an arms management pact, under which each side would put away most of its weapons and restrict most troops to a few barracks, under the supervision of monitors from the United Nations. It was following a popular uprising in April same year that forced King Gyanendra to end his direct rule and reinstating the parliament, which he has dissolved in October, 2002. The reinstated House of Representatives announced its Proclamation on a Parliamentary session on 18 May 2006, thereby acknowledging the people’s victory and stating that its declaration was written with the blood of the martyrs who sacrificed their lives in the movement. The Proclamation stripped the Monarchy of its executive power, declared Nepal a secular state and brought the then Royal Nepal Army (RNA), which was enjoying unbridled freedom and emboldened by its direct affiliation with the all-powerful palace, under the Parliament’s control. RNA is now called Nepal Army and His Majesty’s Government of Nepal has been replaced by the Government of Nepal. The Parliament also announced that there would be an election to the Constituent Assembly, a key demand of the CPN (Maoist), who have been waging a war for a decade now. This particular step taken by the Parliament is of great significance, since the Maoists have made no bones about getting rid of the Monarchy and going for a republican state since their inception in February, 1996. The decade-long conflict, also known as the "People’s War", has claimed over 13,000 lives in the country.

The peace agreement contains several references to respect for human rights, including a commitment by all parties to address issues (directly related to decade long armed conflict) such as the problems of people whose property has been expropriated, the tens of thousands of internally displaced persons, and compensation for those injured and killed during the conflict. It was also agreed to provide information about the more than one thousand Nepalese still “disappeared” after being detained by the army or the Maoists. The peace agreement calls for the creation of a truth and reconciliation commission although without mentioning any judicial or penal measures that may be used to enforce accountability. Section 5.2.5 of the peace agreement states that the truth and reconciliation commission will “probe about those involved in serious violations of human rights and crimes against humanity in the course of the armed conflict and develop an atmosphere for reconciliation in the society.”

King Gyanendra dissolved the House of Representatives in 2002 and for three years before proclaiming the executive power in 2005, had satisfied himself by mending different sets of governments comprising political party representatives and his sycophants by foreshadowing a bleak picture on gory images of conflict.  But his February actions further deepened the country’s crisis and forced Nepal’s seven prominent political parties and the Maoists to align against despotic monarch. Gyanendra’s rule history will undoubtedly judge as a repressive one. The seven party alliance and CPN (Maoist) signed a historical 12-point agreement (a Roadmap for peace and democracy), agreed on 22 November, 2005, played a crucial role in their fight against autocracy and ultimately paved a way for establishment of peace in Nepal.

Gaining solidarity for Human Rights

Nepal’s present political development was not an overnight achievement, although the people’s movement for democracy forced King Gyanendra to relinquish his direct rule on 24 April, 2006. There was a much bigger force than the seven political parties and the Maoists behind the success of the movement for democracy. The nationwide strike from 6 to 9 April, 2006, led by the political parties and backed by the Maoists, which transformed into a massive people’s movement, was just a part of the bigger picture. Although eleven years of war is not a short time by any standards, the Maoists’ and seven political parties’ willingness to give in to the people’s wishes could forecast a sound political climate.

Solidarity, at a critical juncture, among all factions of society – from the civilians, civil society, media, judiciary, political parties, Maoists and the international community’s pressure made the movement a success. However, the movement was merely a catalyst for change. Awareness campaigns advocated by the civil society, local and international human rights bodies and active and untiring support by media helped educate people at the grassroots level about their rights. The media included the mainstream private newspaper, radio and television and equally important were the community radios in different locations outside the capital, Kathmandu.

The King’s direct rule was a very intolerant and censorious as arbitrary arrests, seizures, threats and detentions were common to media and working conditions for Nepalese journalists have further deteriorated as a state campaign of mass arrests have threatened their personal safety as well as their right to practice their profession. Furthermore, since the King's take-over, censorship of the media had been complete. A February directive issued by Nepal's Ministry of Information and Communications (MoIC) banned FM radio stations from broadcasting any news - including opinions and commentaries - unless the security forces issue it. Security personnel have continued to march in, censor and monitor media houses and publication groups. On the very next day after power seizure, the Nepalese government issued an order banning the media from printing, publishing or airing anything that is against "the spirit and letter of the 1 February royal proclamation and supports and encourages the activities of the terrorists directly or indirectly".

As the King appeared unwilling to restore true democracy, as a consequence, articles of the Nepalese Constitution 1990 protecting people's fundamental rights - such as the Right to Freedom (Article 12) (Freedom of thought and expression; Freedom to assemble peacefully and without arms; Freedom to move and reside in any part of Nepal); the Press and Publication Right (Article 13); and the Right to Information (Article 16), among others - were suspended. Even in the two months since King Gyanendra lifted the state of emergency on 30 April 2005 in the country, tactics used to silence journalists and media workers have became even more aggressive. To protest against the Kings rigid restrictions on the media thousands of journalists had taken part in nationwide peaceful demonstrations to demand that press freedom be restored. Some protestors have used loudspeakers to shout news reports as they march through the street, using one of the only methods still available to disseminate information as the ban on political reporting through print, television and radio continued.

Nepalese people’s awareness of fundamental rights and human rights consciousness during the insurgency and King’s absolutist rule were upheld intact by media by risking their own existence.  Subsequently, that played a key role in their fight for justice, peace and freedom.

After agreeing on the Comprehensive Peace Agreement and verification and settlement of arms and armies of Maoist by United Nations, Nepal received its interim constitution and a new parliament with the Maoist rebels on 15 January 2007. The old parliament that King Gyanendra was forced to revive on April 2006 has been dissolved. This was a big leap forward in Nepal’s history because it completely denies any power to the king, which signals a virtual end of the 239 year old feudal Shah dynastic rule in Nepal. Most importantly the preamble of the constitution states, the sovereign people of Nepal has promulgated this constitution but not by any single person or a power centre. This makes it clear that for the first time in the history of Nepal, people in Nepal made a constitution for themselves. This is a landmark victory achieved by the Nepalese people. It can be said that this is also the beginning of a new era in the history of Nepal. Nepalese people can be proud of it and cheer it in many ways.

But this is the beginning of a new challenge for New Nepal. As the interim constitution is for the period up to the holding of constituent assembly elections (proposed for mid Jun, 2007), the agreement on the holding of a Constituent Assembly to draft a new constitution was a face-saving move for the Maoist leadership, which had given up its ‘people’s war’ midstream as unworkable. But the need for a new constitution was more deeply felt by the various communities of the diverse Nepali class, caste, ethnicity, faith, language and region – who had come to believe that the restructuring of the state through a new constitution was needed in order to access the rights and opportunities thus far denied to them. The blame game is that the eight political parties in command (including the Maoists) hardly made a show of consulting the leadership of the various factions/communities in the decisions they made over the nearly one year time since April, 2006.

However, there are many challenges lying ahead. The government of Nepal, Parliament, Maoists and civil society – all have a task in hand to maintain the equilibrium and take the country to a new direction. The road to success does not end with stripping King Gyanendra of his power, empowering the Parliament, removing the "terrorist" tag from the Maoists, announcing the much demanded election to the Constituent Assembly, declaring Nepal a secular state and declaring interim constitution through formation of interim legislature parliament comprising of CPN (Maoist) members. It lies in the new government's ability to capitalise on the ripe political climate, a window of opportunity, available now. Much needs to be done and the country has a long way to go.

Media and Democracy

Access to information is essential to the health of democracy for at least two reasons. First, it ensures that citizens make responsible, informed choices rather than acting out of ignorance or misinformation. Second, information serves a “checking function” by ensuring that elected representatives uphold their oaths of office and carry out the wishes of those who elected them.

In some societies, an antagonistic relationship between media and government represents a vital and healthy element of fully functioning democracies. In post-conflict or ethnically homogenous societies such a conflictual, tensionridden relationship may not be appropriate, but the role of the press to disseminate information as a way of mediating between the state and all facets of civil society remains critical. This is a desired reality in Nepal.

While media is considered to be a part of the civil society arena, it is well known that media overlaps other functional areas of democracy and governance. For example,  a just media practice promoting human rights may yield results in governance activities, particularly those related to decentralization, anti-corruption, and citizen participation in the policy process and also in ensuring constitutional safeguards. The rule of law may be further institutionalized by an independent media that keeps a check on the judiciary, reports on the courts, and promotes a legal enabling environment suitable for press freedom.

Free and fair elections conducted through transparent processes require a media sector which gives candidates equal access, and reports the relevant issues in a timely, objective manner. This is even more apposite as Nepal is embracing for constituent assembly election this year.

International conventions support media activities. Most notably, Article 19 of the

1948 Universal Declaration of Human Rights states, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers.” Within the context of supporting democratic transitions, the goal of media development generally should be to move the media from one that is directed or even overtly controlled by government or private interests to one that is more open and has a degree of editorial independence that serves the public interest. If the media is to have any meaningful role in democracy, then the ultimate goal of media should be to develop a range of diverse mediums and voices that are credible, and to create and strengthen a sector that promotes such outlets. Credible outlets enable citizens to have access to information that they need to make informed decisions and to participate in society. Community media specially community radios could play a significant role in nurturing the Nepal’s hard won peace process and transforming into state of sustainable peace.

A media sector supportive of democracy would be one that has a degree of editorial independence, is financially viable, has diverse and plural voices, and serves the public interest. The public interest can be defined as representing a plurality of voices both through a greater number of outlets and through the diversity of views and voices reflected within one outlet.

Opposition parties also help to institutionalize a culture where critical views are tolerated. Likewise, the media creates space for opposition parties in many cases. In Nepal during the period of political turmoil starting from October, 2002 until last April, countless individuals acted as publishers, writers, broadcasters, and journalists in order to provide people with alternative information and commentary, views that were not officially sanctioned by the regime. While some governments view this activity as destabilizing, it may be just the opposite since, a democracy without opposition is mere a mock of it. Where press freedom is denied, the opposition may turn to more violent forms of expression and protest. For example, when media was denied access (both before King’s direct rule and more during his tenure) to reporting about the Nepal’s Civil War branding it as terrorism, the Maoist took a path of taking terror into towns and cities to make their voices heard to general public.

Constitutional and Legal Protection

Free media is considered the pillar of a modern democratic state. Press freedom is prerequisite to make the state mechanisms responsible and accountable towards people. The media plays a leading role in creating fair public opinion, and is one of the most powerful means to put across people’s problems, desires and aspirations to the government. If their freedom is not guaranteed, the process of creating fresh public opinion falters. Until and unless people are fully informed about activities of the state, no one can look forward to a responsible and accountable government. In brief, without freedom of speech and expression, and democratization of the mass media, people’s rights cannot be protected. In order to win people’s confidence and trust, the state should be willing to embrace principles of good governance and increase people’s access to information. In a democratic system, the actions of the government should be transparent. The government must principally and practically internalize that it is the fundamental right of the people to gain access to information regarding public concern.

Every media system in the world functions under certain kinds of restraint, so the ultimate objective of media law should be relative rather than absolute freedom. One of the most effective protections against restrictive legislation may be self-regulation and media accountability, developed through professional associations and unions. It is more difficult for a government to challenge press freedom when the reporters and editors of the mass media perform at a professional level, verify facts, and adopt a balanced, even if partisan, approach in presenting stories.

The role of free and competent media organization is vital for the overall development of a country. In a country like ours with difficult topography, lack of transport facilities, rampant poverty and large pool of uneducated population, expansion and development of media sector is necessary. Proper development of media sector will not only contribute to generating awareness among the rural population but will also help to bring them into the mainstream of development process. To keep people of a democratic society informed about state’s affairs and to promote the concept of inclusiveness, it is essential to build a new age communication thus obviating factionalism.

Similarly, as clearly recommended in the High Level Media Commission Report of 15 September 2006, necessary working procedures and remedial measures should be adopted to ascertain right to information as the legal right of an individual and to increase people’s access to public and governmental information. The constitution should give all the freedom to audio, and audio and visual mediums, such as radio, television, and online and internet based media – a benefit which is currently being utilized only by print media. An independent information commission should also be established to protect and guarantee ones constitutional right to information.

In order to institutionalize democratic system, protect people’s right to information and to truly establish media sector as the Fourth Estate, Nepal’s new constitution should acknowledge that the role of media sector is vital for increasing participation of people in creation of a democratic system, and for fully realizing the concept of establishing inclusive democratic setup.

What media can do

The media can fulfil a vital role in support of human rights and its defenders by providing information on the Universal Human Rights Declarations, reporting on violations committed against human rights, and nurturing public support for human rights activities and constitutional safeguards. Initiatives to strengthen the role of the media in this regard could be taken by media organizations and other non-governmental organizations and might involve human rights training or securing improved and regular access to information on human rights concerns.

The media could make particular efforts to counter any attempts to defame human rights and its defenders, for example by promptly challenging statements wrongly accusing human rights workers of being terrorists, criminals or against the State. Civil society in general could establish informal monitoring networks to ensure that, whenever human rights faces the threat of a violation, the information is quickly shared among a wide group through media. Such monitoring can have a strong protective role, helping to prevent violations. Networks should be established at the local, national and regional levels. There should also be links with relevant international mechanisms, such as international human rights non-governmental organizations.

The immediate aftermath of ethnic and factional conflict may pose the strongest challenge for implementing democracy. By means of the integrated strategy on democracy media can contribute more directly to the restoration and/or establishment of democracy through,

  • Strengthening awareness
  • Acting as a catalyst for regional, national and international action in human rights
  • Fostering cooperation with all actors and networks

Since, Nepal is a multi-caste, multilingual, multi-cultural and multi-religion country, the media should produce, publish and broadcast materials with the aim of preserving and uplifting local language, underprivileged groups and local cultures and should have equal representation of people of backward community and indigenous groups, Dalits, Madhesis, women, underprivileged, underrepresented and disabled even in its workforce. In order to achieve this overarching goal, the country must lay groundwork to expand bases of information and communication technology in the rural areas; make the media sector more competitive, effective and reliable; transform the government's controlling agent's role to that of a regulator and facilitator. Introduce provisions in constitution and law to give impression that the state has truly accepted media as the Fourth Estate; and formulate constitutional and legal bases to ensure that people can utilize their right to information from any medium of media.

Community broadcasting has enormous potential to introduce plural voices to the media sector, to deliver development messages, and to empower communities to take charge of their own information needs and to develop appropriate formats for meeting them. The essential question regarding the establishment of a community radio station is not one of technology but rather the question of how the community will be able to control the medium technically, politically, and culturally.

It is possible to have a community radio station in a poor area, and to have editorial independence even when the station receives government support. Community radio stations owned, managed and operated by rural communities would be facilitating in strengthening peace and promoting culture to respect people’s rights . As the community media or community radio is medium for the community and by the community, the setup of such media has also extension of the community it serves. A milk cooperative community owning a community radio station will have its own niche than the one owned by a community forest group or by a group of active civil society members. But in essence all of these community media are fundamental in promoting freedom, human rights and welfare of the communities under which they are operating.

To sum up, media can do two important things apart from other endless activities, to promote human rights and constitutional safeguards,

  • Increasing coverage of minorities to promote broader access to news, views, ideas, discussions and debate
  • Monitoring the functioning of executive, legislative and judiciary under the constitutional norms and values, and reporting on their activities

 

References cited:

AHRC, Nepal: Rekindling the flame of democracy in Nepal, 25 April 2006, Asian Human Rights Commission

(http://www.ahrchk.net/statements/mainfile.php/2006statements/503/)

Center for Democracy and Governance, June 1999, The Role of Media in Democracy: a Strategic Approach. Washington D.C., U.S. Agency for International Development

CMD. 2005 Annual Report. The Center for Media and Democracy (CMD) Madison, Wisconsin, USA.

Commission Report. 15 Sept 2006. High-Level Media Recommendation Commission. Nepal

Government of Nepal. Nov. 2006. Comprehensive Peace Agreement held between Government of Nepal and Communist Party of Nepal (Maoist).

Himal Southasian, March 20, 2007. Volume 20 NO 3. The Southasia Trust. Kathmandu, Nepal.

Rai, Manoj. Legal Framework and Citizen Participation in South Asia Regional Report (India, Nepal, and Bangladesh). PRIA - Society for Participatory Research in Asia. Undated research report.

Government of Nepal. 2007. The Interim Constitution of Nepal 2063 (2007). Kathmandu: Government of Nepal. Ministry of Law, Justice & Parliamentary Affairs, Law Books Management Board, 2007.

The Constitution of the Kingdom of Nepal 2047 (1990). Kathmandu: His Majesty's Government Ministry of Law, Justice & Parliamentary Affairs, Law Books Management Board, 1992.

UN. April 2004. Human Rights Defenders: Protecting the Right to Defend Human Rights (Fact Sheet No. 29). Office of the United Nations High Commissioner for Human Rights. Geneva, Switzerland

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