Case Comment: Advocate Rajib Bastola v Government of Nepal

Dr Bipin Adhikari
January 2015 (Unpublished Notes)

In this case, Advocate Rajib Bastola filed a writ petition seeking the Supreme Court's decision to deem Section 8, 11 and 17 (2) of the National Broadcasting Act, 2049 BS unconstitutional as they were in contrast with Section 12(3), 15(1) and 27 of the Interim Constitution of Nepal, 2063. Legal provision on the broadcasting of the flow of information through the National Broadcasting Act 1993 targeted for the general public to get informed about impartial as well as authentic news and information taking place at the national and international level. This Act also aimed at making of the broadcasting media reliable, effective and strong with the use of modern technology in the field of information and communications. 

Relevant Legislations

Interim Constitution, 2007:

National Broadcasting Act, 1993: 

 International Convention on Civil and Political Rights (ICCPR), 1976

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order, or of public health or morals

In response, the court did not find unconstitutionality with Section 11 and Section 17 (2) respectively. However, in terms of Section 8 regarding the power to cancel the license of broadcasting institutions, the Supreme Court found that this provision was in contrast to the constitutional principle enshrined in Section 15 of the Interim Constitution of Nepal. According to Section 15, " No publication, broadcasting or printing of any news item, editorial, feature, article or other reading and audio-visual material through any means whatsoever including electronic publication, broadcasting and printing shall be censored." However, Section 8 of the National Broadcasting Act gives power to the Nepali government to cancel the license obtained by such broadcasting. The court opined that cancelling the license of a broadcasting network would garner the same result as providing censorship to the publication as licenses are an essential pre-requisite for the broadcasting agency to legally function in the country. In this regards, citing unconstitutionality between the parliamentary act and the constitution, the court nullified the provision stated in Section 8 of the National Broadcasting Act.

Comments

In this case, the judiciary has once again exercised its power of judicial review to declare Section 8 of the National Broadcasting Act, 1993 unconstitutional. In doing so, the Supreme Court has re-iterated its preeminence in the judgment as to invalid restrictions. From a governance perspective, arguments can be made that a judicial institution, which is essentially appointed and not elected, should not be allowed to discard rules made by an elected body, i.e. parliament. The lack of accountability for judiciary towards the voting demographic has been argued as a major reason for the possible pitfall for this system. In the United Kingdom, for example, in most cases, the parliamentary Act is seen as a supreme law and the power is vested within the judiciary to interpret the law and not amend it.

However, there is a second school of thought which sees great benefit in the judiciary's power to exercise its rights to interpret the constitution at the exclusion of any parliamentary acts. The appointed nature of judiciary, according to them, is a huge benefit as it keeps the judiciary independent and unaffected by partisan interests. This, according to many, is the hallmark of a democratic society where checks and balances are provided to keep all the institutions in line with democratic norms. This school of thought has prevailed in Nepal. 

In terms of the case at hand, the Constitution recognizes the following grounds for restricting freedom of expression: sovereignty and integrity of Nepal; harmonious relations subsisting among the peoples of various castes, tribes, religion or communities; defamation; contempt of court; incitement to an offence; and acts contrary to public decency or morality. However, the restriction based on protecting “harmonious relations subsisting among the peoples of various castes, tribes, religions or communities” (Article 12 para 3 (1) of the Constitution, as well as in Article 15 of the National Broadcasting Act 1993), is problematic from the perspective of freedom of expression. While it is important to promote harmonious relations, this restriction is too broad and can undermine legitimate expression such as a frank discussion about the caste or ethnic discrimination which is a prevalent issue in Nepal.

In addition, there should be appropriate provisions that impose obligation to establish close and causal links between banned statements and risk to national security. This is a norm in international law. This lack of clarity has been abused in Nepal during the Maoist conflict and was one element in the justification for the widespread clampdown on journalists, media workers and human rights defenders. In essence, regulation of broadcasting should be controlled by a transparent body rather than a ministry to avoid future abuses.

The verdict to amend the National Broadcasting Act to adequately protect the right to freedom of expression in line with international requirements and the protection of media guaranteed in the Constitution is a welcome move. In light of this, the government must create regulatory laws according to international standards and establish regulatory bodies that are independent from government and that operate transparently.

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