Security or espionage?

A new draft counter-intelligence bill is raising fears that Big Government wants to constrict constitutionally-guaranteed freedom of expression and individual privacy.

This comes even as the UML-NC coalition is trying to push through the Media Council Bill that would increase government interference in the media.

The counter-intelligence bill harks back to the Panchayat absolute monarchy days and also 2014-15 when a repressive anti-corruption agency listened in on citizens and tracked them.

The government says the National Intelligence Act is outdated because of advances in private messaging apps with end-to-end encryption, and needs to be regulated. But after the Prime Minister’s Office released a draft, it has sparked debate even before reaching Parliament.

Civil rights activists have particular objection to a provision in the Bill for ‘interception’ — allowing authorities to monitor, surveil, or record communications, audio, video, or electronic signals from suspected individuals or organisations.

Section 15 of the draft bill states: ‘…If it is not possible to collect information through other means, and if immediate collection of such information is necessary to prevent serious harm to the country, the Inspector General of Police, upon being convinced, may issue a written order to any officer under their direct supervision to monitor or surveil communications, audio, video, or electronic signals or data from any suspected individual, organisation, or institution, or to intercept and record such information.’

Such surveillance is deemed necessary for ‘internal and external intelligence and investigative work and to protect and promote the country’s independence, sovereignty, territorial integrity, national security, national interest, unity, and autonomy’.

Experts say such a provision could be misused as has happened in the recent past when such unchecked authority falls into the wrong hands.

“It is not that such powers should not exist, but other safeguards are necessary which are missing in this draft,” argues constitutional expert Bipin Adhikari, adding that these should include safeguards against the blatant and arbitrary misuse of surveillance powers.

Read also: Spooking Nepalis by snooping on them, Mukesh Pokhrel

During the investigation into the murder of Acting Supreme Court Justice Ran Bahadur Bam in 2012, the police collected call details from 500,000 mobile phones and 30,000 SMS messages. Many of the messages that were unrelated to the investigation were reportedly used by officers for entertainment, with sexual content being the most widely shared. This was exposed by an investigation in Kantipur with the headline एसएमएस अरूले हेर्लान् नि! (Others might see your SMS!).

In 2016, a motion for impeachment was filed in Parliament against Lokman Singh Karki, the vicious head of the Commission for the Investigation of Abuse of Authority (CIAA). Although he was appointed by the same politicians who wanted him out, one of the reasons for the move was Karki’s abuse of surveillance powers, including phone tapping and spying on political leaders, security officials, judges, civil society leaders, journalists, and administrative officers. The phones of 293 individuals were later found to have been tapped.

‘NATIONAL INTEREST’

This is not the first attempt such legislation has been pushed, ostensibly in the ‘national interest’. In 2019, a bill consolidating and amending the law on Nepal Special Services included similar provisions, which passed the National Assembly despite opposition. 

After committee deliberation, it was approved in May 2020 but became inactive in September 2022 when the term of the House of Representatives ended.

“Globally, provisions like this are used to protect sovereignty and independence, territorial integrity, and national unity. This is standard policy worldwide and is not unique to Nepal,” says Deviram Sharma, the former head of the National Investigation Department.

He adds, “I do not see a need to oppose a provision that has already been approved by an elected body.”

The current draft bill further states that the Inspector General of Police’s order would be sufficient to monitor, surveil, or intercept the communications of a suspect.

Taranath Dahal, former president of the Federation of Nepali Journalists, warns that arbitrary surveillance could violate fundamental rights and create an atmosphere of fear. 

“Investigators need data and information, but the right to intercept should only be exercised with court approval. Without this, it will lead to a climate of fear, anyone can be kept under surveillance.”

During the investigation of Justice Ran Bahadur Bam’s murder, concerns about the exposure of collected SMS data led lawyers Baburam Aryal, Tankaraj Aryal, Santosh Babu Sigdel and Taranath Dahal to file a writ petition in the Supreme Court in 2012 to restrict access to private phone and SMS records.

In 2016, the bench of then Chief Justice Kalyan Shrestha and Justice Devendra Gopal Shrestha ruled that access to phone and SMS records must be approved by the district court until a law governing the matter was in place. 

The ruling stated: ‘Unless otherwise provided by law, permission for access to information necessary for criminal investigations must be obtained from the relevant district court.’

Constitutional expert Bipin Adhikari adds that the law should not infringe on constitutionally guaranteed freedom of speech, press, or the right to privacy: “There must be a provision to obtain orders from an impartial authority to prevent the state from using such powers arbitrarily.”

All rights activists and lawyers interviewed for this report unanimously agreed that a citizen’s right should not be compromised in the name of facilitating a broader investigation, and that any information collected by any authority during these should not be misused.

Dahal is confident that the controversial provisions will be removed before the bill reaches Parliament, and sees this early discussion as a positive sign: “I hope none of the clauses that undermine our constitutionally guaranteed fundamental rights make it into the bill.”