Pranesh Gautam case and freedom of speech: Practitioners’ Perspective

Review of the movie, Bir Bikram 2 is the talk of the town. Pranesh Gautam, a comedian and member of a popular Nepali Facebook page, Meme Nepal was put into controversy after the makers of the movie filed a case against the comedian alleging him of defaming the movie and the actors and reviewing the movie in such a way that it seriously affected business of the movie. Pranesh was put behind bars which sparked a lot of criticism within Nepal and even international comedians came for his support. Protestors regard this as a blatant action against freedom of speech and against the spirit of democracy and the Constitution. #FreePraneshGautam was one of the trending hashtags in social media over the last week in the country.

We, NIRC, sought responses from four law, justice and human rights practitioners - Apekshya Niraula, Atit Rijal, Barun Ghimire and Ram Tiwari about what they feel about this case. Here is what they opined:

How do you react to the Pranesh Gautam and review of movie Bir Bikram 2 episode?

Apekshya Niraula:

Firstly, Pranesh as a citizen of Nepal and audience of Bir Bikram 2 including all citizens of Nepal have a right to freedom of thoughts and expression. Along with these rights, he has also some duties such as not defame social dignity of any individual or organization. In this regard, Bir Bikram 2 unit also has some duties that need to consider the opinion and voices of their audiences and address it accordingly.

Atit Rijal:

Pranesh Gautam reviewed a movie and criticised it with honest expressions.

Barun Ghimire:

The episode of Pranesh Gautam and Bir Bikram 2 (team) should not be seen as an isolated event. We must look at instance like this from a macro perspective considering all the stakeholders involved. This is emblematic of misuse of power and influence to restrict individual’s rights to expression and opinion.  This is clear example of how people in power can misuse legal system and government apparatus to avoid opinion that is unfavourable to them.

Ram Tiwari:

I am surprised a bit since it signals whether we are inching towards a context of non-coexistence and intolerance. Pranesh and the movie team, both have tried to outsmart each other, but surely at different success scales.

As a restorative justice advocate, I see how law can be used for political gains and that having law doesn’t necessarily mean that we have justice. Law isn’t justice, it’s clear. Nor does having law ensure having peace or social harmony.

While we see civil and political community polarize, we haven’t heard what the actual stakeholders of this issue – Pranesh, Bir Bikram 2 team and the government – have to say on this. What were the reasons/needs behind doing whatever they are doing? We don’t know much.

What are the legal/justice/human rights related aspects related to this case in terms of our country’s legal provisions, cyber law, etc?

Apekshya Niraula:

I have listed some of the legal aspects which will be applicable in this issue.

Article 17, 2 (a) clearly mentions about the freedom of opinion and expression

Article 19 (1) mentions Right to communication: (1) No publication and broadcasting or dissemination or printing of any news item, editorial, feature article or other reading, audio and audio-visual material through any means whatsoever including electronic publication, broadcasting and printing shall be censored.

Article 20: Rights relating to justice (1), 20 (2), 20 (3) and 20 (5)

20 (1) - No person shall be detained in custody without informing him or her of the ground for his or her arrest.

20 (2) - Any person who is arrested shall have the right to consult a legal practitioner of his or her choice from the time of such arrest and to be defended by such legal practitioner. Any consultation made by such person with, and advice given by, his or her legal practitioner shall be confidential.  Provided this clause shall not apply to a citizen of an enemy state. Explanation: For the purpose of this clause, "legal practitioner" means any person who is authorized by law to represent any person in any court.

20 (3) - Any person who is arrested shall be produced before the adjudicating authority within a period of twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to such authority; and any such person shall not be detained in custody except on the order of such authority.

Provided that this clause shall not apply to a person held in preventive detention and to a citizen of an enemy state.

20 (5) - Every person charged with an offence shall be presumed innocent until proved guilty of the offence.

Article 23 (1): No person shall be held under preventive detention unless there is a sufficient ground of the existence of an immediate threat to the sovereignty, territorial integrity or public peace and order of Nepal.

Muluki Criminal Code

Number 200 (1) states no person shall be detained on any ill intentions except the law has stated.

Number 305 (1) No person shall rebuke another with the intention of defaming and demoralizing

Number 306 (2a) (2c) – No person shall publish or broadcast any contents intentionally which defame the dignity, morality and popularity of another people. / Mock another people and indirectly accuse them

ICCPR 1966

Article 18 – Right to freedom of thought, conscience and religion.

Article 19 – Right to hold opinions without interference.

Nepal being a state party to ICCPR in accordance with Treaty Act 1990, Article 9 has explicitly mentioned that international law to be given a domestic effect by the state parties to the international convention.

Atit Rijal:

Section 47 of The Electronic Transaction Act is supposedly applied in this case to accuse Mr. Gautam of publishing illegal materials in electronic form whereby the court could order for an imprisonment of up to five years or a fine not exceeding One Hundred Thousand Rupees or both.

The Court has declined the plea for bail since Nepal does not entertain bails on offences that have an imprisonment term exceeding three years. This is however a very unjust concept that the Courts have been following not only in this particular case but in every other cases.

The Police also get the upper hand in cases like these during the period of investigations. So before the "abhiyogpatra" is registered with the court, a plea of bail is rarely heard.

There are stipulations whereby the court is to elaborately analyze the evidences furnished by the police to gain approval for holding someone under custody. This is however seen to be followed in rare instances. The court does very little to protect someone's right to be protected from unreasonable custodies.

Barun Ghimire:

Freedom of opinion and expression is right guaranteed under our constitution and various human rights treaties Nepal is party to. There is legal clarity on what freedom of expression is, when can it be restricted and what are the procedural requirements for it. This row indicated curtailment of individual’s freedom of expression without lawful justification accepted under the constitutional and human rights realm.

Further, we also need to be clear on what offense fall under cybercrime and what does not. There must be clear understanding of defamation too; we need to know difference between criticism and defamation. We also need to make distinction between ‘public figure’, ‘public content’ and ‘private affairs’. The idea of defamation and subjective standard for public figure and private person is different. We must not be blinded by what we think is right or wrong or our liking or disliking, we need to be in line with legal requirement. In this row the cyber law has been wrongfully been resorted.

Ram Tiwari:

We have a constitutionally guaranteed freedom of expression (Article 17). So seen that way, this arrest of Pranesh is unconstitutional. But the constitution and laws have also stipulate that any work to incite hatred or social disharmony is a criminal offense. And again, which acts ‘incite’ what is open to interpretation.

Do you think this move by the government is a right one? Why do you think so?

Apekshya Niraula:

Here, the intention of both the disputing parties is yet to be clear. So in my opinion, the concerned authorities should conduct an investigation on the issue and find out the motive behind the actions of both the parties. If their action as such is proved to be punishable by law the authorities has a responsibility towards it accordingly. However, the dialogue between the involved parties is essential to take further steps.

Atit Rijal:   

It is actually barbaric to keep someone under custody for expressing thoughts. This is not only against the very fundamental right of freedom of expression and opinion but also against the very notion of democratic practice.

The concepts of discretion, judgment and verdicts revolve around societal values and the constitutional guarantees. Orders and decisions of Courts are to show the nature of the society we live in. A judge should consider these very principles while rendering orders, but very little is done to properly analyze the consequences the orders might portray.

The custodial order rendered by the District Court is against the constitutional guarantee of freedom of expression and opinions.

Barun Ghimire:

Government has obligation to respect, protect and fulfill the rights of individual. The role of government body particularly Nepal Police has not been up to the mark desirable in democratic society where rule of law prevails. The way Pranesh was arrested, held in judicial custody and charge-sheet not being filed in due time reflects that government agency has failed to fulfill its obligation.  

Ram Tiwari:

It might be ‘right’ from the perspective of the government or law. But the main point is, it isn’t contributing anything to what the government generally wants to happen – peace and social harmony. And when people are suffering because of this act, this is certainly not the right move.

Do you think social media personalities/Youtubers/comedians/social commentators need to draw a line as well? If so, why and how?

Apekshya Niraula:

Being a law abiding citizen, every citizen is liable to follow certain duties while enjoying their rights. The professional ethics must be followed by all the professionals that will avoid the problems of similar nature in future. We are living in a diverse society and have a range of social media followers. Thus, the social media personalities/Youtubers/comedians/social commentators and others must be sensitive of individual dignity, culture, tradition, religion, geography, political belief and other aspects before producing their news or opinion.

Atit Rijal:

In this case Mr. Gautam freely exercised his right to voice his thoughts, whereby he chose to do it humorously. These type of aggressive humors have been accepted by civilizations all around the globe apart from some states which choose to govern arbitrarily.

If the constitution guarantees freedom of opinions and expressions, then the person exercising such rights also has the right to offend the listener or viewer. The first amendment of the Constitution of the United States provide restrictions on threats and incitement while "offensive" speech is protected (Offence here is not a commission but is related to feeling upset, annoyed or resentful).

Free Speeches are actually the foundations of a democratic society. Offending someone is not against any laws but inciting them to act in an illegal manner or threatening them are against the notion of right to speech.

If someone is offended over someone else's expression, then he/she should again opine against such expressions and voice a counter-thought. Isn't that supposed to create reasonable debates? And isn't this the very notion of democracy?

Unless the media personalities/Youtubers/comedians/social commentators are not inciting violence and are not threatening or deliberately hiding facts so as to twist the issue, they do not have to worry about crossing any lines.

Barun Ghimire:

There must be limitation and line need to be drawn. For instance, hate speech, racial abuse, content aimed at disturbing public order, undermining national sovereignty etc. and sort of content restricted under domestic and international law must be complied with. Media personalities are not above law and must comply with legal standards.

Ram Tiwari:

Yes! Before we do something on public, we certainly should be mindful of its consequences. The same rule applies to the government.

What do you think is the long term solution to this problem?

Apekshya Niraula:

As a restorative justice enthusiast, I think the longer term solution to the problem is a broader dialogue with the involved parties of this incident where the needs of the both parties should be understood by each other and let them seek the solution by themselves. Since, we are only relying on the assumptions and other news coverage, we aren’t in the position to state who or what is wrong. Both of the parties should be aware about not jeopardizing the rights of each other 

Atit Rijal:

In the specified case, the district court order can be challenged instantaneously with higher courts that have the right to intervene over such orders. These successful applications could act/serve as precedents for protection of freedom of opinions and expression. Also the judges must interpret statutes in harmony to the Constitutional guarantees and international democratic principles.

Barun Ghimire:

  1. Awareness and clarity on the content of law
  2. Training of law enforcement officials on new form of crimes
  3. Holding those who misuse legal system accountable
  4. Vigilance while drafting of laws

Ram Tiwari:

Creating spaces for diversity and difference is important. This needs both short- and long-term engagement from the government and civil society.

Building capacity for grant proposal writing in Nepal

By Sudeep Uprety

Writing comes naturally to some while others think it is a struggle for them. As development communicator, I was frequently consulted by students and early career development professionals to help them in developing grant proposals to raise funds for their organisations and business ventures. This led to the birth of Grant Proposal Writing Training Series, initiated by Nepal Institute of Research and Communications (NIRC), a research and communications training institute. Through this initiative, we have successfully completed five batches of training to over 100 participants since September, 2018 in Kathmandu, with the last training held in January 19-20, 2019.

Our two-day training programme has been designed with a mix of both conceptual and practical sessions. Our sessions comprise of introduction to grant proposal writing; key elements of a bid document and things to consider before preparing for bid development; components of a Technical Proposal (such as background, understanding of the context and Terms of Reference, study design, implementation plan, team composition and project governance, quality assurance mechanism, risk assessment and mitigation strategies, monitoring and evaluation framework and annexes); and Financial Proposal (such as implementation budget, human resource budget, budget summary and financial justifications).

We also had practical sessions for participants about developing conceptual framework about the scope of work, developing project implementation plan and human resource mobilisation plan, risk assessment and mitigation strategies.

Likewise, understanding that calls for proposals not just limit to developing technical and financial proposals, we also oriented the participants briefly about the styles and samples of developing responses to Expression of Interest (EoI) and Concept Note.

Finally, we also discussed with the participants about effective bid packaging – reminding minute details such as submission formats, deadlines, writing in Plain English, email etiquette and file size limitations for online submission, proper addressing in the cover letter, among others.

Apart from our flagship training programme, we have also provided proposal writing trainings for other organizations such as World Vision International, Mercy Corps and Kamal Rural Municipality in Province 1.

Based on our experience of developing grant proposals for different agencies, some of the top tips:

Do’s

  • Digest the call for proposal properly – understand the objectives; scope of work; expectations from the funding agency; scope of work; deliverables; evaluation criteria and administrative requirements (technical and financial proposal guidelines; submission format and deadline, documents to submit)
  • Identify your team members – who could contribute to proposal development relevant to the nature and subject matter of the call for proposal
  • Develop a proposal plan – devise a strategy to engage your team members to contribute in developing the proposal and provide them a deadline well ahead of the final submission deadline leaving enough time for compilation and review
  • Develop a review team comprised of subject matter and language experts to polish the proposal
  • Have a check list to ensure that all required documents are completed before submission
  • Submit the proposal in time in order to avoid any last minute accidents (such as problems in uploading large files and no/weak internet connection)

Don’ts

  • Apply a blanket approach – explaining similar sort of competencies in all kinds of calls
  • Have a massive team – having a lot of discussion and very less time to come up with a unified strategy
  • Have many writers – making many people write will make it difficult to compile the write-up and ensure coherence of ideas; also makes it difficult to standardise the language
  • Start writing before having a clarity of ideas – writing while you are confused makes your strategy weak and does not convince the funding agencies that you are well prepared to carry out the task
  • Submit in haste – submitting well ahead of the deadline doesn’t give an edge over the other applicants and moreover increases your chances of missing some important points that you would have wanted to include

Easier said than done, writing a successful grant proposal requires clarity of thoughts in terms of proposed strategies; dedicated team; and the sensibility to understand the priorities and expectations of the funding agency. Our experience of conducting these workshops have also been documented in a short video.

https://www.youtube.com/watch?v=9PKLfOAK7hw&t=9s
Sudeep Uprety is a development communications professional and is Co-Founder and CEO at NIRC. Tweets @UpretySudeep

Communicating effectively as policymakers: Some tips

By Sudeep Uprety

Policymakers as public figures hold great responsibility and accountability in what they say. To give some context, some months ago, Law Minister in Nepal had to resign from his post after his controversial remark regarding Nepali medical students studying abroad. Likewise, Minister for Industry, Commerce and Supplies Matrika Yadav was heavily criticised in social media for his inability to converse in English during the Investment Summit that took place in April, 2019.

In another gathering of a policy discussion workshop with policymakers in Nepal which I attended, one speaker was slotted thirty minutes for his presentation. He spent the first fifteen minutes addressing the dignitaries and welcoming them. For the next half of his presentation, he had about forty PowerPoint slides which he just read through facing towards the screen and with his back towards the audience. The entire slides were about chronological history of evolution of a policy. He continued this narration till the last “Thank You” slide and then just ended his presentation. As an audience, I couldn’t understand what message he wanted to convey, if at all.       

In this light, it is important for public figures such as policymakers to learn and practice effective communications skills.

Here are my seven tips:

  1. Know the occasion: It is important as an invitee to understand the purpose of an event – why are you invited there and what are you supposed to speak. Sometimes, these things are mentioned in the invitation letters but also better to clarify with the organiser(s) about what is expected from you. It makes your life much easier, to prepare for the event accordingly.
  2. Presentation is not karaoke singing: Presentations or written speeches are not meant to be spoken like how you are waiting for the words in the video screen while doing karaoke singing. It makes your audiences totally disinterested and shows you are ill prepared. So, it becomes very important for you to spend some time reading through and understanding the content that you are going to deliver.  
  3. Avoid unnecessary addressing: Especially in political gatherings, policymakers spend unnecessary extra time on addressing to ‘please’ some powerful political figures present at the event. It would be better to avoid these unnecessary addressing which will save precious time for important discussions – for which the event is organised.  
  4. Focus on key messages: In most cases, you have around 15-30 minutes to speak. So, better to talk about the most important issues that you feel needs to be covered and the ones could be left out. For instance, you need not put up a slide with an entire paragraph about provisions of a certain policy but just include in bullet points about key highlights from that policy that also only if relevant to be discussed for the event.  
  5. Presentation as storytelling: It is important to think yourself as an audience and present your ideas/opinions that would interest your audience. So, considering the multiple learning capabilities (visual, auditory or kinesthetic) of diverse audiences, you need to ‘style’ your content accordingly - emphasising on important words while you speak, using relevant photos/videos and bodily movements.
  6. Enrich your knowledge banks: As policymakers, you need to have good advisers who are knowledgeable or can extract information/evidence about issues that concern you. As a public figure, every word you say would be interpreted as voice from an ‘authority’ and therefore, it is important to understand the value of evidence to put forward your arguments strongly. A fact sheet to carry during any public event would come handy for you to present your arguments/opinions that are well informed.
  7. Follow up on what you say: Often as politicians/policymakers, there is a tendency to go by a popular opinion. With omnipresent media and civil society, it is also important to follow up on your commitments through action and during your next presentation/speech on the same issue, your reflection about the actions would give an impression to the people about your seriousness regarding the issue.

Cover Image Credit: https://www.interviewstrategies.com/wp-content/uploads/2015/09/communications.jpg

Sudeep is a development communicator and he is Co-Founder and CEO at NIRC. Tweets @UpretySudeep