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Fraud media ordinance
By BHIMARJUN ACHARYA

- The promulgation of the new Ordinance by the government to amend some Acts related to media has drawn widespread criticism and given rise to new debates in the constitutional arena. The criticism and debate arose as the move is expected to bring about adverse impacts on the movement of free press.

There are some controversial provisions in the Ordinance which are listed below: the amendment to Section 32(2) of National News Agencies Act which states "news agencies pursuant to Sub-section (1) can disseminate their news throughout the Kingdom of Nepal by obtaining permission from HMG" has been substituted for what was originally written as "news agencies pursuant to Sub-section (1) shall disseminate and sell their news throughout the Kingdom through news agencies or HMG established under current laws" and, the amendment to Clause (a) of Section 14 of Press and Publication Act which states, "His Majesty's and members of royal family" has been substituted for "His Majesty's" to restrict any news or views items to be published or broadcast against the King or members of royal family. (According to the current Nepali laws, members of royal family means family members of four generations of the King. According to the Constitution, no special privileges or prerogative powers is given to such members of the royal family except the King for the time being and only with the exception that the royal family enjoys expenditure from the consolidated fund of state).

Likewise, in the amendment to Clause (d) of Section 12(2) of Press Council Act, where the words "or his press representative certificate or temporary press representative certificate shall be cancelled" have been added after the words "complete stop". (According to original provision of the Act, the Council can have power to recommend HMG to stop partial or complete facility or concession enjoyed by a journalist from HMG) The amendment to Section 5 of National Broadcasting Act where the words "informative programs" have been substituted for the words "news-related programs" (if this amendment is effective, the broadcasting of news-related programs through any electronic means of media including cable, satellite, or FM can be affected. The amendment does not, as claimed by HMG, merely affect the broadcast of news on FM. It will also affect the stay order of Supreme Court issued to Government in respect of broadcast of news on FM).

The additional provision of Section 6A to National Broadcasting Act- "notwithstanding anything contained in this Act or elsewhere in any current laws any person or organization shall not be given license or certificate of radio, television and publication either at once or time by time" is also a matter of serious controversy included in the Ordinance. The Government will also lose its power to hold three media- radio, television and print if this provision is enforced. Besides, the omission of the words "institutions or joint venture with local or foreign person or" contained in Section 9(1); the addition of Section 11A "any broadcasting institution shall not broadcast its program simultaneously from other than one place without obtaining permission from HMG" of the Act and the substantial changes made to Sections 5-10 of Defamation Act in respect of increasing penalty are other serious controversies.

According to new amendment to the Defamation Act, anyone broadcasting or publishing any defamatory matter through any electronic or other means of mass communication deliberately or with a reasonable cause will be fined with Rs. 100,000.00 to Rs. 500,000.00 or up to 2 years imprisonment or both. This provision stands against basic principles of criminal jurisprudence, which says that only the one who is guilty of crime is liable to imprisonment.

One has to understand that all defamatory acts do not involve elements of crimes. It should be classified into two kinds: libel and slander. A familiar statement is that libel is written whereas slander is oral. Libel is further classified as both a crime and a tort. Of them, only the criminal libel is liable to imprisonment but no longer prosecuted as a crime because of constitutional protections of free press. (Black's Law Dictionary- 1999, P 927). Contrary to these accepted rules, the Ordinance has provisions for imprisonment for all kinds of defamatory acts including the torts.

In a situation, some moot questions are now attached on the part of Ordinance to receive a valid force of law. They are: whether the Ordinance can amend the legislative Acts? Can it change or make otherwise effect to the substantive rights or provisions created by the Legislature? Has it fulfilled the requirements of Article 72? Can all defamatory acts committed by a journalist be made liable to imprisonment? And so forth.

Obviously, the executive has ordinance-making power. It may promulgate Ordinances, as the circumstances appear to require. However, one cannot forget basic differences between law-making power of Legislature and executive. The executive exercises an Ordinance-making power while the power of Act-making is limited to a democratically elected legislature. Due to this very nature and mandate of power, the making of an Ordinance can never be equated with the enactment of an Act. Indeed, the Ordinance and Act may have same effect after the enactment (if duly made), this does not mean that the scope of law-making power of the two is same: an ordinance cannot make a provision, which cannot be enacted by an Act of Parliament. Nor can it make a provision, which amends the legislative Acts or effects substantive rights of an individual or institutions, which are already established by Legislature.

The Courts have, post 80s, propounded the doctrine of "occupied field" and of "substantive part of the law" in relation to the exercise of law-making power of the executive. (One example of this could be a D.C. Wadhwa v. State of Bihar case of 1987 of the Indian Supreme Court). To this doctrine, when a subject is already covered by a statute passed by the Legislature, the Government cannot meddle, change or amend with that subject through its executive power. Therefore, it is an accepted rule of law that the executive power is not available in respect of the subject, which is already covered by legislation. Nor is the power available in amending, changing, subtracting or omitting any substantive rights or provisions established by legislative Acts.

To receive a force of law under Article 72, any ordinance needs to meet certain conditions. The first is that the Parliament must not be in session. Secondly, the power to promulgate Ordinance must be exercised on the advice and recommendation of Council of Ministers headed by an elected Prime Minister. Thirdly, the King before promulgating any Ordinance would have met the obligation arisen from Article 53. Fourthly, the promulgation of an Ordinance should be very much the exception to ordinary legislative procedure and in no way the norm or the rule. Fifthly, the circumstance must exist in which immediate action is necessary. It is said that the power to promulgate Ordinance is essentially a power to be used to meet an extraordinary situation. It must be justified as being "necessary" rather than being "desired". Sixthly, it must be exercised without prejudicing other provisions set forth in the Constitution. And, finally Ordinance must be promulgated with a good faith and mind.

The present Ordinance has not satisfied all these aforesaid conditions. The Government move is, therefore, completely unconstitutional and objectionable. The act of Government can, categorically, be termed as a colorable exercise of power; subversion of the democratic process and more importantly a fraud on the constitution. The executive cannot usurp the law-making function of Legislature without justifying the urgent need and rationale to do so. Nor can it be perverted to serve political ends.

(The writer is a constitutional lawyer)

The Kathmandu Post, 2005-10-21