Kathmandu, December 16
Rights activists and lawyers say the Bill to Amend and Integrate Laws related to Constitution and Operation of Nepal Special Service violates citizens’ fundamental right, as it proposes to give powers to National Investigation Department to wiretap phones and to intercept digital communications of individuals.
Executive Director of Freedom Forum Taranath Dahal said if the bill was enacted into law, it could give sweeping powers to NID to collect individuals’ private data on flimsy grounds. “No state institution has the power to encroach on people’s right to privacy,” he said.
The Supreme Court has set a precedent whereby investigative agencies can collect individual’s private data in the course of investigation only with the court’s permission and the court may give permission only when investigative agencies file a case against the individual, Dahal added. He said new privacy law had already been enacted and hence a new law could not override the provisions of the Right to Privacy Act.
Human rights lawyer Dinesh Tripathi said the bill violated the constitutional provision that guaranteed right to privacy and was dangerous for democracy. “Police can collect individuals’ personal data only after convincing the court that it has compelling reasons for doing so in the course of investigation of a crime, but this bill allows authorities to collect individual data, tap phones and intercept individual’s communication without a court’s approval,” Tripathi added. He said right to privacy was sacrosanct.
Nepali Congress lawmaker in the Upper House Prakash Pantha registered a motion in the Upper House saying that the bill violated people’s right to privacy and fundamental rights of citizens and should be stalled. Pantha told THT that if police or any investigating agency wanted to see anybody’s digital communications or call details, they could do so with a court’s permission under the existing laws and there was no need for a new law to govern these processes. “This bill can be used by the government to increase surveillance against its opponents, rights activists and civil society members. The government can use it to instil fear in the minds of the public,” Pantha said.
Advocate Raju Prasad Chapagai said the bill’s provisions were not in harmony with the right to privacy law. “All governments have the right to defend national sovereignty and public interests but the states cannot ignore human rights while protecting sovereignty and public interests,” Chapagai said. He added that the government should have held broader consultation with all stakeholders before bringing the bill. “Even now the government can consult stakeholders and amend the bill to ensure that it does not violate people’s right to privacy and freedom of expression,” he added.
Chapagai said the UN had passed a resolution in 2013 urging member states to review their laws so as to ensure that their domestic laws did not violate right to privacy guaranteed by international law.
The bill stipulates that the government may designate NID to collect information against persons/organisations it suspects of spying against the state of Nepal or working against public interest. NID can monitor any suspected individual and organisation’s communications and can monitor and intercept digital exchange of information. The bill stipulates that service providers shall have to provide information to NID if it seeks details of any individual and organisation’s communications that they have exchanged using telephone, mobile phone or computer.
The bill allows NID to gather information on any attempt to raise arms against the state, incite communal hatred and any act of espionage, sabotage and subversion. The bill also proposes that NID can gather information on any attempt to provide any kind of help to foreign organisations and individuals whose acts are against the state.
A version of this article appears in print on December 17, 2019 of The Himalayan Times.