Media In Promotion Of Human Rights And Constitutional SafeguardsBy 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,
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,
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. 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.
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