Government Attorney defends Media Ordinance

Kathmandu, Nov 8-Attorney General Pawan Kumar Ojha on monday said the government could not strictly follow constitutional provisions in abnormal situations like the current one.
“This is a situation beyond the government’s control; thus we cannot press the government to do everything strictly as per the Constitution like during normal times,” Ojha said. He was defending the government in the apex court that is hearing writ petitions challenging the constitutionality of the controversial Media Ordinance.“The situation is beyond the government’s control. Thus the Supreme Court has to think while issuing any order regarding the implementation of the ordinance,” Ojha said.
Ojha argued that the government has the authority to exercise legislative power to promulgate any ordinance in the absence of parliament. “The government can repeal and amend any existing law by an ordinance. There is no difference between the parliament-made law and an ordinance.”
He also claimed that the SC couldn’t test the intention of the government while issuing any ordinance. “The SC has authority only to examine an ordinance if it is issued beyond the parameters of the Constitution,” He claimed that the defending lawyers, civil society as well as the media, have been misleading the court.Ojha also said that the ordinance has made clear a previous provision that restricted criticism of the royal family.
He argued that the ordinance does not control the Press but is aimed at regulating it and claimed that the government wants to end the monopoly of any media house based on a report made by a committee of parliament six years ago.
Ojha also said the government has the authority to promulgate any kind of ordinance at a time when there is no session of parliament. “In the absence of the parliament, the government can exercise the legislative power to promulgate ordinances,” Ojha added.He said by an ordinance the government can impose tax, fine and punishment as it has been doing in the past several years.
Ojha also claimed that the recent amendment of six different Acts the Press and Publication Act, National Broadcasting Act, Rastriya Samiti Act, Radio Act, Press Council Act and Defamation Act through the ordinance is within the parameters of the Constitution and no intervention by the apex court is needed.“The Kantipur FM had aired news from Bhedetar station without acquiring licence. Even if it had a licence, it has no authority to air news after the promulgation of the ordinance, he added.
Earlier, former law minister Subhas Nembang accused the government of promulgating the ordinance to amend the provision of the parliament made law with mala fide intention. “The government has misinterpreted the constitution and its spirit,” he added.
He claimed that the government had violated the fundamental rights of the people to listen to news by promulgating the ordinance. The hearing will continue tomorrow.
Mainwhile,Pleading on behalf of Kantipur FM (KFM) advocate Subash Nembang Monday said that grounds for a further stay order has already been established after the Supreme Court (SC) issued an earlier stay order to the government directing it not to take any action against the FM as the case remained pending in the court.
Nembang further said the promulgation of the media ordinance itself was "unconstitutional".
"The ordinance does not say the airing of news through FM stations is prohibited, but thousands of listeners in eastern Nepal have been deprived of their right to information after the Ministry of Information and Communications seized the KFM equipment from its Pulchowk station in Kathmandu in a mid-night raid," said Nembang.
"The ordinance explicitly contradicts the preamble of the constitution of 1990 and it cannot be amended through an ordinance. It is a sheer case of arbitrary state monopolism," he said, adding, that the right to express opinions, press freedom and right to information enshrined in the constitution of 1990 "cannot remain in a vacuum."
He argued that the petitioners had approached the SC for justice at a time when there was an urgent need to protect freedom of expression and democracy in the country.
Referring to the independence of the SC he said, "If the court weakened, democracy would be weakened and if democracy is weakened the people will be weakened."
Nembang also urged the SC to issue an interim order for the annulment of the media ordinance and the return of Kantipur FM's seized equipment.