Spooking Nepalis by snooping on them

25 December 2019

On 11 December, the Prime Minister and Cabinet's office tabled the 'bill to amend and integrate laws relating to the constitution and operation of Nepal special service' in the parliament secretariat.

Prakash Panta, member of the National Assembly from the opposition Nepali Congress has requested the parliament to take the Special Service Bill (SSB) back. With allegations that the bill restricts the fundamental rights of citizens, there is concern that provisions of SSB will violate citizens’ fundamental right to privacy.

NC parliamentarian Radheshyam Adhikari says this is a direct threat to citizens' fundamental rights like privacy and freedom. "This bill shows that the government is against democracy and an open society, and does not believe in transparency and accountability. It will allow the government to snoop on anyone it does not like, and use the information to threaten or blackmail them.”

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The SSB will allow the National Investigation Bureau (NIB) to collect any information on anyone without a warrant. The Act's Section 10, subsection 6 states: ‘In the course of information collection or counterintelligence, the Bureau can monitor, intercept, or record the conversations of people or organisations under suspicion or monitoring, made in public, or through any other audio visual or electronic medium.’

The Bill also defines interception as the act of monitoring communication channels and gathering data. Though the Bureau has in the past spied on individuals, it is not authorised by law to do so. Now, the bill gives it the right.

The Bill makes it compulsory for people to give up any information an investigation officer requires, and if they refuse the investigators can acquire the information by spying on them if necessary.

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Critics say this has created the fear of misuse and breach of privacy in the name of investigation. It could also lead to leakage of information and violate fundamental freedom in direct contravention of the constitution.

Article 8 of the Constitution states that information regarding a person’s residence, property, documents, statistics, correspondence, or character, cannot be violated unless otherwise required by law.

Former Chief Justice Kalyan Shrestha says the bill increases the chance of misuse of power. "There should be clear provisions about where the right to privacy can be breached with monitoring and where it cannot. And there should also be provisions for legal redress if someone's privacy is breached when the government uses this right," he says.

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Constitution expert Bipin Adhikari goes further, stressing that the law will endanger the country’s democratic polity itself. "A person at the highest level of government may use these provisions to undermine the system itself," he says, referring to how the former king Gyanendra Shah used Article 123 to take power.

There is also precedent set by the former head of the Centre for the Investigation of the Abuse of Authority Lokman Singh Karki, who in 2013 operated a state within a state and regularly tapped the phone calls of 293 critical politicians, security officers, civil society leaders, judges and journalists. When Parliament decided to impeach him in 2016, the phone tapping was prominent in the list of reasons.

However, there are some who say the danger to democracy has been blown out of proportion. The former head of the National Investigation Bureau Deviram Sharma says, "This law is not meant to snoop on ordinary citizens' phone conversations. It intends to monitor terrorism, antinational activities, and the activity of dubious foreigners. A draft of the bill was actually prepared 17 years ago, and it has been tabled with timely amendments."

In fact, the draft bill does state that the law is needed to control ‘spying, armed insurgency, coup, inciting others to violence, aiding foreign countries or organisations, breaching the harmony between people of different classes, races, ethnic groups, religions and communities, secessionism, spreading hate and violence, armed and underground groups, illegal activities on border areas, etc.’

But that is precisely what worries rights activists, who say that the definition of whom the state is allowed to spy on is so vague and broad that anyone in authority can use it to snoop on political or business rivals, the media or critics of the government.

Government across the world have intelligence agencies that are given powers to spy on their own citizens, but these powers are strictly limited by law. Even so, some democratic states like India, the US and UK have made it easier for intelligence agencies to spy on their citizens, especially when it comes to terrorism. But even there, there have been widespread complaints of misuse.

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The government tried to pass a similar law to allow surveillance in the last days of the Panchayat in 1990, citing heightened activity of foreign spy agencies. But the Panchayat system collapsed, and with it the first attempt to allow the government to spy on its citizens.

The law was discussed again during the Maoist war, and a draft was even drawn up in 2001, but it was not tabled. Even today, snooping on private citizens is barred by law, but that has not stopped the National Investigations Bureau and others to snoop on calls and messages.

Security agencies in Nepal regularly use call/sms data in their investigations, which is actually illegal. Some have even made private information public. After Advocate Baburam Aryal and four others filed a case against the practice in February 2016, then Chief Justice Kalyan Shrestha and judge Devendra Gopal Shrestha had ruled that a person's right to privacy was "entirely private and fundamental" and limited the practice.

The verdict stated that since there was no law which allowed security officers to tap phone calls or look at sms, the officers would have to take permission from the District Court before doing so.

"That is a temporary provision. In the long term, there needs to be balance between individual's right to privacy and the state's need to investigate. A full-fledged law is the permanent solution," says ex-Chief Justice Shrestha.

The NIB was previously under the Home Ministry, but in February 2018 it was brought under the purview of the Prime Minister’s Office and Cabinet Secretariat. Although the Bureau’s main duty is to safeguard national security, the proposed bill expands its area of work to include human trafficking, drug trafficking, illegal wildlife trade.

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"The objective of the Bureau is to protect the national interest. Giving it unlimited powers increases chances of misuse, especially since departments under the PMO are not accountable to any other government department," says Hemanta Malla, former DIG of Nepal Police.

There is still time for parliamentarians to debate the Bill and change its provisions if required, but the government appears to be intent on using its majority in Parliament to ram it through. Experts say the bill should have provisions for legal redress, and provisions against transfer or sale of information collected.

NC MP Radheshyam Adhikari concludes: "The way it is reads now, it lets the government pry into people's lives, intimidate them and threaten to disclose their private details if they don't obey."

"The government is pushing through a law that is above the constitution. The law will grant extraordinary powers to the Bureau any time, which are to be used only in emergencies. But there is not enough awareness in civil society about this. Yes, security forces should have powers, but there should also be check and balance. The law should provide for investigation of the Bureau, as government investigation will not be enough."

"The Bill is meant to restrict undue activity from foreigners. For example, then chief secretary of the government Lilamani Pudel made a 9-point code of conduct about officers meeting foreigners. That angered them. Baburam Bhattarai had promised to not transfer any secretaries, but transferred one of them within 18 days of becoming PM. We need to stop this kind of meddling. The current protests against the Bill is instigated by such foreigners."