Nepal: Amend Intrusive Intelligence Bill

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(New York) – Nepal’s Special Service Bill risks giving the national intelligence agency unlimited surveillance and search powers, Human Rights Watch said today. The proposed law, which permits communications interception without judicial oversight, should be revised to safeguard Nepalis’ vulnerable civil and political rights and their privacy.

Together with other laws submitted to parliament by the government, including the Media Council Bill, the Information Technology Bill, and the Mass Communications Bill, which contain numerous loosely defined and draconian measures limiting freedom of expression, this proposed bill will have a chilling effect on speech. In addition, a proposed amendment to the National Human Rights Commission Act seeks to curtail the commission’s autonomy, even as the government has repeatedly attempted to constrain nongovernmental organizations, including human rights defenders.

“Several bills that would extend the Nepal government’s ability to intercept communications without a warrant or use its powers to crack down on speech and dissent are awaiting parliamentary approval, and should be withdrawn and revised,” said Meenakshi Ganguly, South Asia director. “The Nepali people have fought long and hard for their democratic rights, so it’s bitterly ironic that elected politicians are introducing measures to curtail basic rights such as privacy and freedom of expression.”

Under the Special Services Bill, Nepal’s intelligence agency, the National Investigation Department (NID), will operate under the authority of the prime minister’s office and receive direction from two committees, one composed of senior ministers and chaired by the prime minister, and one composed of top bureaucrats from the same ministries.

The agency’s function is described as gathering intelligence on national security threats and crime, as well as spying on “various contemporary issues, events and activities and issues of public interest and importance that the Nepal government wants information about.”

The bill gives the NID’s staff the authority to “enter any office, organization or privately owned place, building, house or vehicle by showing their identity card” and after giving “notice in writing.” Furthermore, “while conducting counter-espionage work in accordance with this law, the department can monitor, observe, and intercept, as well as document any conversation carried out through public or other means of communication, along with audio, visual, or electronic signals or details transmitted by any person or organization that seems suspicious.” The only authorization required is “the permission of the chief investigation director.”

The government has the responsibility to protect its citizens, but any security measure should be proportionate and uphold international human rights standards, Human Rights Watch said.

Senior Nepali lawyers have raised objections to the lack of safeguards. “The government wants to tap conversations without permission from the courts, and that is illegal under our constitution because we have a right to privacy,” Sher Bahadur KC, a former chairperson of the Nepal Bar Association, told Human Rights Watch. “Without the court’s permission no one should listen to our telephones.” He said that the courts typically grant official requests for electronic surveillance under the existing law.

Mohan Acharya, a legal adviser to Nepal’s constitution drafting process, told Human Rights Watch that “in the constitution there are a lot of fundamental rights, including freedom of speech.” Yet, he said, “there are so many bills by which it seems the government is trying to control the voice of the people.”

In recent years the government of K.P Oli has repeatedly abused powers under the Electronic Transactions Act, a law purportedly designed to combat online fraud, to detain people making allegations of corruption, or even for publishing rap songs or film reviews that angered officials.

“Nepal’s elected representatives should not enact a law that gives the authorities the power to spy on citizens, without any accountability or oversight,” Ganguly said. “Considering the other steps by the current government to roll back civil and political rights, this will place fundamental freedoms at serious risk in Nepal.”