On the night of 1 June 2001, most terrible incident occurred in the Nepalese history. King Birendra, Queen Aishwarya, Crown Prince Dipendra and nine other members of royal family were killed in a horrible palace shoot-out. With the death of King Birendra, Crown Prince Dipendra was declared the new King even as he was fighting for his life lying in a coma on 2nd June. He, too, died on 4th June. King Gyanendra acceded to the throne after all members of King Birendra’s family were killed.

During the state of mourning, the Nepalese media was unofficially banned from commenting about the incident and they continued to play ‘the music of mourning’ and merely broadcast official news bulletins. Until the morning of 2nd June, the state-owned Radio Nepal and Nepal Television did not inform the people about the incident and only did so after the Royal Council met at around 9.00 am and officially announced the death of King, Queen and other members of royal family and proclaimed Crown Prince Dipendra as the new King. Even after more than 12 hours of the incident, the Nepalese people were deprived of information regarding the assassination of their beloved King and other members. Even the print media could not carry out intensive news reports in their editions. But few daily newspapers covered very briefly about the incident and that, too, without explanation and they have not shown interest in covering news even later. However, the newspapers extensively published the news released by the government, survivors and report of the two member commission headed by Chief Justice Keshav Prasad Upadhaya along with Speaker Tara Nath Ranabhat, which was formed to probe the incident.

Foreign media channels such as BBC and CNN intensively carried out the highly sensitive news. But they broadcasted news reports ignoring the facts of the incident and alleging that Crown Prince Dipendra was responsible for the killings, which was highly criticized by the Nepalese people. The Nepalese people could not be convinced about the allegation against Dipendra. As a result, the angry crowd attacked few foreign media reporters around Durbar Marg area and made their attempt to destroy technical equipment. Fortunately, no untoward incident was recorded against foreign reporters. The government-controlled television and private cable network stopped telecasting entertainment programs and transmitted news channels such as BBC, CNN, Star News and etc. But Zee News network was controlled unofficially and is still not received in Nepal.

Both the state-owned and private newspapers could not enjoy adequate right to media freedom and followed the instruction of the government. In general, the FM stations followed the same pattern and broadcast religious songs and hymns such as ‘Puran’. The journalists themselves were not able to enjoy their right to free and fair news reporting. They honestly shared the national trauma and mourned. But no Constitutional rights were enjoyed by the media workers and the state was not also seen active in providing such rights guaranteed by national and international instruments. Even the state was not feeling responsible to inform about the incident.

During the last one year, the state has avoided explaining the reality of the incident and has not shown any commitment for further in-depth investigation. It is strange that no official investigations were carried out about the killings except the formation of official commission by the King, whose report was highly criticized because it only carried out detail study about the incident without any remarks or analysis.

Very few newspapers published critical articles about the incident or raising suspicion about the incident and some merely stated that the Royal massacre was a conspiracy. In fact, Yuba Raj Ghimire, the editor of the Kantipur daily along with two other members of the management committee of the Kantipur Publications were arrested on 6th June 2001 and charged with treason case because they had published a critical article written by Maoist leader Dr. Babu Ram Bhattarai. They were released after appearing in special court having spent nine days in the custody. Similar harassment and psychological attacks were meted out to the journalists on different occasion for carrying out critical news and feature articles.

Foreign Direct Investment Over the Newspapers

The Foreign Direct Investment (FDI) in media became another controversial issue in the Nepalese media sector in the last year. The issue came to the fore after the “Himalayan Times” English daily newspaper was published in November 2001 by “Himalayan Times Publications” in joint venture with “Asia Pacific Media Associates”. Ministers, political parties and leaders expressed their concern and declared their stand against the investment stating that the foreign investment over media sector will prove harmful for the nation, its sovereignty and national interest.

According to news reports of Nepal Samacharpatra on 10 January 2002 quoting Shambhu Shrestha, Chairman of Press Chautari Nepal and editor of Drishti Weekly, King Gyanendra also expressed his worry about the foreign investment over Nepalese media.

The Foreign Investment and Technology Transfer Act (FITTA), 1993 does not directly say whether a particular business is not open for foreign investment. It allows foreign investment in all the business, which are not specifically restricted. The legal facts that the press or publication business is recognized as an industry and that it is not restricted for foreign investment are self-evident. There doesn’t seem any confusion on the legality of foreign investment in press and publication.

Commenting on FDI in media, former prime minister and ruling Nepali Congress party president Girija Prasad Koirala said that he would not allow foreign investment in Nepali media at any cost, which could become a threat to the country’s independence and existence. Similarly, the opposition leader Madhav Kumar Nepal also expressed his voice against foreign investment. He said that such newspapers may attack the norms of cultural, national, strategy and freedom of the country.

The Nepalese Constitution has assured the freedom of press and publication right and not prohibited any foreigners from enjoying the legal rights. At the same time, the Communication Policy of the Government and Press and Publication act does not speak clearly about the procedure of the foreign investment in the media sector. Considering the facts, Nepal Press Council (NPC) has requested the government to stick to legality and transparency while giving permission of the investment in media sector on 18 April 2001. The Council also requested to amend laws related to the investment, if necessary. Also, the Study and Recommendation Task Force headed by the Joint Secretary of Ministry of Information and Communication (MOIC) recommended to review existing laws to restrict foreign investment over the newspapers in early January 2002.

Declaration of “State of Emergency”

After six years of violent “people’s war” launched by the Maoist insurgents and death of more than 2,000 people, King Gyanendra declared the nationwide “state of emergency” on 26 November 2001, on the recommendation of Council of Ministers in accordance with Article (115) of the Constitution of the Kingdom of Nepal, 1990. The Article (115) of the Constitution says, “If a grave emergency arises in regard to the sovereignty, national integrity of the Kingdom of Nepal or security of any part there of, whether by war, external aggression, armed rebellion or extreme economic disarray, His Majesty may, by proclamation, declare or order a state of emergency in respect of whole of the Kingdom of Nepal or any specified part thereof.” His Majesty the King has suspended sub-clauses (a), (b), and (d) of Clause (2) of Article (12), Clause (1) of Article (13) and Article (15), (16), (17), (22) and (23) of the Constitution, except the right to file habeas corpus.

The Government has declared Maoists and its network organizations as terrorists. The following provisions of the fundamental rights have been suspended with the declaration of state of emergency except habeas corpus under constitutional remedy of the Constitution.

Article 12. Right to Freedom

Article 12.2 (a) - freedom of opinion and expression;
Article 12.2 (b) - freedom to assemble peaceably and without arms;
Article 12.2 (d) - freedom to move throughout the Kingdom and reside in any part thereof;

Article 13. Press and Publication Right

Article 13 .1 - No news item, article or any other reading material shall be censored.
Provided that nothing shall prevent the making of laws to impose reasonable restrictions on any act which may undermine the sovereignty and integrity of the Kingdom of Nepal, or which may jeopardize the harmonious relations subsisting among the peoples of various castes, tribes or communities; or on any act of sedition, defamation, contempt of court or incitement to an offence; or on any act against which may be contrary to decent public behavior or morality.

Article 15. Right against Preventive Detention

Article 15.1 - No person shall be held under preventive detention unless there is a sufficient ground of existence of an immediate threat to the sovereignty, integrity or law and order situation of the Kingdom of Nepal.
Article 15.2 - Any person held under preventive detention shall, if his detention was contrary to law or in bad faith, have the right to be compensated in a manner as prescribed by law.

Article 16. Right to Information

Every citizen shall have the right to demand and receive information on any matter of public importance;

Article 17. Right to Property

Article 17.1 - All citizens shall, subject to the existing laws, have the right to acquire, own, sell and otherwise dispose of, property.
Article 17.2 - The State shall not, except in the public interest, requisition, acquire or create any encumbrance on, the property of any person.
Article 17.3 - The basis of compensation and procedure for giving compensation for any property requisitioned, acquired or encumbered by the State for in the public interest, shall be as prescribed by law.

Article 22. Right to Privacy

Except as provided by law, the privacy of the person, house, property, document, correspondence or information of anyone is inviolable.

Article 23. Right to Constitutional Remedy

The right to proceed in the manner set forth in Article 88 for the enforcement of the rights conferred by this Part is guaranteed. However, the right to habeas corpus remains during the emergency.

(Article 88 deals with the protection of fundamental rights to be safeguarded by the Supreme Court.)

According to Article (118) of the Constitution, the King has also authorized deployment of the army on the recommendation of National Defense Council (NDC) the Council of Ministers on 26 November 2001. The NDC comprises of the Prime Minister as Chairman and Defense Minister and the army chief as its members. Currently, Prime Minister Deuba has been looking Ministry of Defense as well.

Similarly, the King also issued Terrorist and Destructive Activities (Control and Punishment) Ordinance on the same day to contain terrorism and violence in the country declaring the cadres of Nepal Communist Party (Maoist) as terrorists, which is known as TADO. This ordinance has recently been enacted by the parliament and will be effective after the Royal seal for two years period. Anyone found involved, directly or indirectly, and helping them would also be treated as terrorists, said a statement issued by the Cabinet.

The Maoists activities are condemned by the United States, United Kingdom, Japan, EU member countries, India, and China, among others. However, the Maoist insurgents are still resisting the government forces and targeting civilians, political activists, teachers and private sector citizens apparently to intimidate and terrorize the masses.

The Royal Nepalese Army has launched the “Cordon and Search” and “Search and Destroy” operations all over the country to crush the Maoist rebellion. There have been reports that several innocent people have also been victimized and their human rights violated during the course of on-going security operation.

The state of emergency was declared following the serious attacks against the security posts in Dang, Syangja and Solukhumbu. The Maoists rebels killed 15 soldiers and looted millions of rupees worth only in Dang on 23 November 2001. The authorities said the state of emergency was declared to maintain the peace and security in the country and demolish terrorist activities undertaken by the CPN (Maoists) since February 1996. The declaration of state of emergency was endorsed by the two third majority of the present parliamentarian of the House of Representative on 24 February 2002 and allowed its extension for another three months. In accordance with the Constitution, the “state of emergency” could be extended only for another six months with the endorsements of two third majority of the House of Representative.

Even nearly six months of “emergency”, people, in general, have not felt safe and not free from terror. Instead, they have found themselves in crossfire between the Maoists and security forces. According to INSEC, a Kathmandu-based human rights watchdog, over 700 people have been killed in security operations around the country and nearly 200 people have been killed by the Maoists after the declaration of emergency. This shows that even the human rights defenders and media workers are not safe and not allowed for impartial reporting visiting the site of incident. The Nepalese economy has been seriously affected and number of tourists visiting the country has declined substantially.

The government frequently claims that the press freedom has not been curtailed with the declaration of “state of emergency” and enforcing TADO. Even the authorities interpreted that the journalists are free to carry out impartial news reports in accordance with the Ordinance. The authorities said, only the news that encourage terrorists and terrorist activities are not allowed considering the serious situation of the country. However, many journalists were faced with the restriction of movement, several arrested and harassed by the security forces. In this regard, the Government has recently eased on restrictions on the media issuing directives for the emergency management, which was approved by the King on 3rd April, spelling out details of emergency regulations.

Constitutional Provisions of “State of Emergency”

The Constitution of the Kingdom of Nepal, 1990 clearly stated about the procedure of the issuance of “state of emergency” in the country. According to the Constitution, the King can declare “state of emergency” upon the recommendation of the Council of Ministers. The related provisions are as follows;

The Constitution of The Kingdom of Nepal – 1990 (Part 18) - Article 115- Emergency Power

1. If a grave emergency arises in regard to the sovereignty or integrity of the kingdom of Nepal or the security of any part thereof, whether by war, external aggression, armed rebellion or extreme economic disarray, His majesty may, by Proclamation, declare or order a State of Emergency in respect of the whole of the kingdom of Nepal or any specified part thereof.
   
   
2. Every proclamation of Order issued under clause (1) above shall be laid before a meeting of the House of Representatives for approval within three months from the date of issuance.
   
   
3. If a Proclamation or Order laid for approval pursuant to clause (2) is approved by a two-thirds majority of the House of Representatives present at the meeting, such Proclamation or order shall continue in force for a period of six months from the date of issuance.
   
   
4. If a proclamation or order laid before a meeting of the House of Representatives pursuant to clause (2) is not approved pursuant to clause (3) such proclamation or order shall be deemed ipso facto to cease to operate.
   
   
5. Before the expiration of the period referred to in clause (3), if a meeting of a house of representatives, by a majority of two-thirds of the members present, passes a resolution to the effect that circumstance referred to in clause (1) above continue to exist, it may extend the period of the proclamation or order of the State of Emergency for one other period, not exceeding six months as specified in such resolution, and the Speaker shall inform His Majesty of such extension.
   
   
6. During dissolution of the House of Representatives, the National Assembly shall exercise the powers of the House of Representatives for the purposes of clause (2), (3), (4) and (5) above.
   
   
7. After a State of Emergency has been declared pursuant to clause (1) His majesty may issue such Orders as are necessary to meet the exigencies. Orders so issued shall be operative with the same force and effect as law so long as the State of Emergency is in operation.
   
   
8. His Majesty may, at the time of making a proclamation or Order of a State of Emergency pursuant to clause (1), suspend sub-clauses (a), (b), (d) and (e) of clause (2) of Article 12, clause (1) of article 13 and articles 15, 16, 17, 22, and 23 of this Constitution for as long as the Proclamation is in operation:
   Provided that the right to the remedy of habeas corpus under Article 23 shall not be suspended.
   
   
9. In circumstances where His Majesty has suspended any Article of this Constitution pursuant to clause (8), no petition may lie, nor question be raised in any court for the enforcement of the fundamental right conferred by such Article.
   
   
10. If, during the continuance of a Proclamation or Order under clause (1), any damage is inflicted upon any person by an act of any official which was done in contravention of law or in bad faith, the affected person may, within three months from the date of termination of Proclamation or Order, file a petition for compensation for the said damage and if the court finds the claim valid, it shall cause compensation to be delivered.
    
    
11. A Proclamation or Order of a State of Emergency issued pursuant to clause (1) may be revoked by His Majesty at any time during its continuance.

Promulgation of Royal Order Under Art. 115(7)

His Majesty the king Gyanendra Bir Bikram, on the recommendation of council of Ministers, promulgated an order by virtue of authority conferred by Art. 115(7) of the constitution as was necessary to meet “exigencies” of emergency on April 3, 2002.

Significance of the order:

• The order allows political parties to hold mass meetings and other public functions provided that such activities need the prior permission of the chief district officer concerned, as is the normal practice.
  
  
• Another significant element of the order is that some fundamental press freedom is reinstalled with the lone restriction on publication and broadcast of materials highlighting or tending to highlight the acts of terror and terrorist person everywhere.
  

Art. 115(7)

• This might be interesting to note that Art. 115(7) does not attempt to define what is meant by “exigencies”. However, it seems clear that any order made by the King during a state of emergency must be made in relation to the mischief which the proclamation of a state of emergency was designed to confront.
  
  
• Another marking point in regard to Art. 115(7) is that it does not make clear whether the power of parliament to make other laws not dealing with “exigencies” continues or whether it is suspended during the state of emergency.
  
  Pursuant to Art. 115(7), His Majesty can promulgate an order to make such defense regulations as appear to him to be necessary or expedient for securing the public safety and for maintaining supplies and services essential to the life of community.
  

Experience of England:

In England, where a proclamation of emergency has been made and so long as it is in force, Her Majesty in council may make regulations for securing the essentials of life of community and those regulations may confer on a secretary of state or other Government department, or any other person in Her Majesty’s service or acting or Her Majesty’s behalf, such powers and duties as Her Majesty may seem necessary for preserving the peace-securing to the public necessities of life, the means of locomotion and the general safety.

Directives from Minister for Information and Communication (MOIC)

On 28 November, the Ministry of Information and Communication issued directives to both print and electronic media categorizing publication matters to publish/broadcast and not to publish/broadcast.

Restricted to Broadcast/Publish

1. Affecting or insulting His Majesty the King or the Royal family members
   
2. Affecting or insulting the sovereignty of the Kingdom of Nepal
   
3. Affecting the protection, peace and the government system of the Kingdom of Nepal
   
4. Carrying a negative effect among different castes, ethnicity, religious groups, and class and Community people.
   
5. Hurting and shocking the civilians, their faith, morality and social norms.
   
6. Opposing the Constitution of the Kingdom of Nepal- 1990.
   
7. Helping to make the multi-party democracy weak.
   
8. Encouraging terrorism and apartheid in order to have geographical division and others.
   
9. Insulting, humiliating and shocking the personality of the army, police and civil servants.
   
10. Encouraging the Maoists to involve in terror.
    
11. Causing the government to be weak and out throw through violent movements.
    
12. Creating unnecessary fear and terror among the public.
    
13. Issue that undermine devaluate and insult any caste, language, and religion of the Nepalese people
    

Not Restricted to Broadcast /Publish

1. Sketching the real identity of the “terrorists” (that is the Maoists) movement by being cautions of not making the issue in favour of them.
   
2. The appreciative deeds of the Royal Nepalese Army and Police regarding their contribution and faith.
   
3. The verified news from the authority of the government (that is the Ministry of Defence at present).
   

Appeal for Protection of Fundamental Rights

After the declaration of the “state of emergency”, former Chief Justice Biswanath Upadhaya, former ministers Nilamber Acharya and Devendra Raj Pandey, intellectuals Dr. Madhu Ghimire and Dr. Krishna Kumar Pandey issued a joint press statement on 2 January 2002 and warned the government and other concern authorities to protect the fundamental rights of the people. Keeping the governments’ more intervention over media in mind, they had raised their voice jointly for not letting the emergency to misuse.

The excerpts of the release –

The “state of emergency” is declared in accordance with Article (115) (1) of the Constitution of the Kingdom of Nepal, 1990. The government could not get more power by suppressing the people and their rights in the name of emergency. The emergency is reported for the deployment of the army. But there is no need of emergency just to deploy the army and other security measures. The people have not been known to the reasons of declaring the “state of emergency” in the country. As the hundreds of security personnel have been killed by the Maoists terrorist in the fire exchange, the Prime Minister who is also the chairman of the Defense Council, had been disobeyed by the army while the issue of latter’s deployment to wipe-out Maoists was being hit the country. But the army went to the operation right after the imposition of emergency seems to be suspicious as if it was the precondition for the army deployment. It is conceived that the people of rural areas specially, the Maoist affected areas are largely depended on national security forces (the army) and the local civilian administration that used to rule the local bodies, now remained passive. So much so that the journalists arrested by the police later handed over to the army and were interrogated keeping them under the army. Likewise the security personnel themselves involved in every operation from arresting to panelizing the suspected Maoists individuals instead of taking them to the concern authority. We strongly demand the clarification from the government about the ambiguities prevailed in the criminal laws, which might come in the facet while carrying out operation by the army.

An Ordinance is also issued to control terrorism in the country. It is not clear the need of directives on controlling terrorism introduced through the Ordinance since the Constitution of the Country has the provision of issuing such directives. It is not only defying the Constitution, it has a high chances of such strong law to be continue in the days to come. Therefore we urge the government to dismiss the ordinance and work in accord with the constitution. We also request the government not to misuse the emergency by intimidating and killing the innocent civilians rather than the terrorists. The protection of lives and properties of the civilians and restore peace and security in the country is the primary work of the government. For it, fundamental rights should not be suspended however the government could use it forces according to its need.

At the end, we request the government to end the confusing state of the country recovering and reforming the mistakes and weaknesses done in the past by taking the other parties, civil societies and parliament in to confidence.