By Bhimarjun Acharya

The government’s attacks on Kantipur FM and seizure of key equipment used to uplink the FM’s transmission to Bhedetar station in the eastern region at mid-night on Oct. 21 has drawn widespread criticism. Though the government has claimed that it has undertaken its action pursuant to provisions in Section 11A of the newly promulgated Ordinance related to media, prevailing laws and even the said Ordinance hardly legitimize its action.

The FM stations (including both the government and other private broadcasting agencies) run within the country receive the power of broadcasting programs under Sections 5 and 6 of the National Broadcasting Act 1992 (NBA). According to these provisions, a person or a corporate body desirous of broadcasting any program at any place within the Kingdom of Nepal through satellite, cable or other communications media or desirous of broadcasting education, entertaining, or news-related programs (the words “news –related programs” have been replaced with the words “informative programs-the term is limited merely with the programs related to development ” by the Ordinance) by establishing Frequency Modulation Broadcasting System has to apply to HMG in the prescribed format for license. After necessary scrutiny of the application HMG issues license for broadcasting the aforesaid programs. These laws do not have any prohibitory clauses to the effect of broadcasting programs simultaneously from other than one place except the requirement of obtaining permission from HMG and according to the law the permission once obtained from HMG remain valid unless it is declared otherwise in accordance with the due process established by law.

According to inclusion Section 11A of the NBA, any broadcasting institution is restricted from broadcasting its program simultaneously from other than one place without obtaining permission from HMG. This provision has at least two implications: first that even in a case this amendment is claimed to have been a valid law, the Government can, by virtue of power conferred on it by this clause, restrict any broadcasting institution to broadcast its program simultaneously from other than one place only on the condition that the institution has not received any such permission as required from HMG. Secondly, it has a perspective effect. It will be applicable only to those institutions, which are to be constituted after the enforcement of this clause. The institutions, which have already registered and have obtained permission for the broadcast of programs are not required to obtain re-permission or permission under this clause. This is therefore apparent that the amended clause of the Ordinance is not applicable to any FM stations, which are being run by obtaining necessary permission.

The debate on constitutional arena is, however, not only of the inclusion of 11A to the NBA, it is rather focused on the whole Ordinance. There are some vital questions attached with the legitimacy of Ordinance, which has affected it 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 as laid down in Article 72 of the Constitution? Can all defamatory acts committed by a publisher or journalist be made liable to imprisonment by any manner of exercising the law-making power? 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 the legislature and the executive. An Ordinance-making power is exercised by the executive while the power of formulating a law is exercised by 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. Though 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 affects 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. Wadhaw vs. State of Bihar case of 1987 of the Indian Supreme Court). According to this doctrine, when a statute passed by the Legislature already covers a subject, the government cannot meddle, change or amend with that subject through its executive power. Therefore, it is worldwide-accepted rules of law that the executive power is not available in respect of the subject, which is already covered by legislation. Nor is it available in respect of amending, changing, subtracting or omitting any substantive rights or provisions established by legislative Acts.

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 reasonable cause to believe the occurrence of defamation is 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 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 related harms: 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. By contrast to these accepted rules, the new Ordinance has provisions for imprisonment for all kinds of defamatory acts committed by a publisher or journalist including the torts.

Any Ordinance to receive a force of law under Article 72 must meet certain conditions. The first would be that 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, which speaks of the duty of His Majesty to summon a session of Parliament from time to time. Fourthly, the promulgation of an Ordinance should be very much the exception to ordinary legislative procedure and no way the norm or 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 extra-ordinary situation and immediate necessity. 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 those aforesaid conditions except the absence of Parliament in session. The government’s move regarding the new Ordinance and its assault on Kantipur FM 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 and a tragedy on the rule of law. The executive cannot usurp the law-making function of legislature without justifying the urgent need and rationale to do so. Nor can it be allowed simply to be perverted to serve political ends.