Curtailing civil liberties in Nepal, one legislation at a timeThe KP Sharma Oli-led government has been repeatedly criticised for trying to curb dissent through its laws and policies.
Here are five bills from 2019 that will have far-reaching consequences, if passed in their current form, on the liberties of Nepalis in the years ahead.
Information Technology Management Bill: A new Information Technology bill proposed in the beginning of 2019 and was passed this week marked the beginning of an onslaught of stern laws tabled in Parliament throughout the year. The provisions in the IT bill, which gives sweeping powers to authorities to criminalise social media interactions has raised alarms, as rights advocates say it curtails freedom of speech online and increases surveillance of personal data.
The comprehensive nature of the proposed bill, which will replace the existing Electronic Transaction Act (ETA), lumps together every cross-cutting sector that relates to information technology and could push sweeping changes on everything from social media use to surveillance, e-commerce and tech innovation.
The broad definition of “social network” in the bill includes all information and communication technology-based platforms where people and organisations interact or share content. This would include everything from Facebook, Twitter, Instagram to messaging services like Viber. Even the more secure platforms like WhatsApp and Wire could fall under the purview of the laws enacted through this bill. The government has prescribed a fine up to Rs1.5 million and/or five years imprisonment for individuals who post online contents that sexually harass, bully or defame others.
The government has repeatedly said this bill will not stifle freedom of expression online and is only aimed at regulating tech companies. But the very nature of the bill, which is bent on criminalising social media interactions—those could be deemed illegal based on the vague language of the provisions—puts the users at high risk of being penalised for online posts that “offend” politicians or bureaucrats.
Media Council Bill: Less than three months after the IT bill was tabled, the government tabled the Media Council Bill, which aims to replace the existing Press Council Act. The provisions in the bill will give the Press Council more authority to issue hefty fines and give the government more say in the hiring and firing of council members.
The drafting of the bill started last year and had generated controversy when the government quietly moved the bill to Parliament in May, bypassing a critical consultation phase with stakeholders and the public. The consultation phase, which has been in practice for a long time, is considered a critical element of the democratic exercise of lawmaking.
The bill has raised fears of more sanctions on press freedom, as the existing laws are already being used to stifle journalists and the media. A recent Freedom Forum report pointed out how this government is increasingly using legal channels to circumscribe freedom of the press.
Journalists and information rights activists say the government can use the agency to misuse their power because of the ministry’s role in recommending—and firing—the council members. They also say the freewheeling provisions in the bill allow anyone who feels that a report violates press ethics—not just the person or organisation about whom the report is— to file a complaint against the reporter, editor or publisher.
Earlier, the council could ask for clarification, apology, blacklist certain press organisations, direct to the court for compensation, but now the bill aims to give the council authority to issue monetary punishment ranging from Rs25,000 up to one million. The provisions in the proposed bill will also give the council greater power to write to the concerned authority to take action against media organisations if they violate press ethics as defined by the government.
Bill to amend the National Human Rights Commission Act 2012
Despite serious reservations from the constitutional rights watchdog, the government forwarded the bill to amend the National Human Rights Commission Act-2012 in April. Human rights defenders have said that some provisions in the bill undermine the commission’s authority.
The bill has made it mandatory for the commission to recommend cases against human rights violators—individuals or institutions—to the attorney general.
Human rights activists say that the new provision of authorising the attorney general to decide whether a case should be filed or not would undermine the constitutional body.
As per the existing Act, the human rights body can directly write to the Cabinet for action against human rights violators. Experts say the government has severely impaired the autonomy and independence of the constitutional rights watchdog with the proposed legislation and such a move could defeat the whole purpose of holding human rights violators to account, especially when government authorities themselves are involved in the offences.
There has been a dismal record when it comes to implementation of the rights watchdog’s recommendations by the government.
“If we see the status of implementation of the recommendations made by the commission between 2001 and 2017, only 12.5 percent of the total 810 recommendations were fully implemented, 48.3 percent were partially implemented and 39.2 percent recommendations are under consideration,” states the rights body’s annual report for 2017-18.
Tightening the noose on civil society
The government’s increasingly tighter control of Nepal’s NGO and INGO led to sharp criticism at home and abroad in 2019. Human Rights Watch in November said that the Nepal government is restricting social organisations through legislation. It raised concerns over a Cabinet decision to authorise the Ministry of Home Affairs to prepare a draft of a new law to regulate and supervise social organisations. The details of the bill have not been made public yet.
In October, the Cabinet rejected the Ministry of Women, Children and Senior Citizens’ proposal to draft regulations for non-governmental and social organisations, arguing that the Home Ministry had already been given approval to draft the new law.
Earlier, both ministries were working independently on draft laws on social organisations, but the Home Ministry got the Cabinet approval first.
The fear among civil society organisations in Nepal also stems from the government’s efforts last year targeting the NGO sector.
The government’s National Integrity Policy 2018 had courted controversy for aiming at tighter controls over non-governmental space. The proposed policy had provisions requiring INGOs to take approval from the Finance Ministry for their annual programmes, including funding. It also barred INGOs from sending reports about Nepal to countries where their headquarters are located without the government’s permission.
Throughout 2019, the government was criticised for bulldozing countless bills in Parliament, which has stringent provisions allowing the state to crackdown on civic space and individual freedom. Except for the Guthi Bill, the government hasn’t changed its stance on any of the proposed legislation, and has defended all the bills. So it came as no surprise, when the government, despite the backlash, capped off the year with a bill which could turn Nepal into a surveillance state. Earlier this month, the KP Sharma Oli administration drafted a bill allowing intelligence agencies to surveil citizens, raising concerns among rights defenders and civil society members.
The Nepal Special Service Bill, registered at the National Assembly, which has been distributed to members of Parliament for study, authorises intelligence departments to intercept “the conversation of the suspects”.
In its preamble, the bill says it is necessary to control acts of secession, espionage, sabotage and subversion and protect national sovereignty, national integrity and communal harmony.
The bill registered by Prime Minister KP Sharma Oli envisions to have a specialised office for the intelligence under National Investigation Department and form a nine-member committee led by the prime minister to draft the necessary policy, coordinate and provide the needed guidance.
The bill is being criticised because of the vagueness of its provisions. Clause 10, for instance, states that ‘audio or audiovisual conversation at the individual or institutional level that are suspicious can be kept under surveillance, monitored or intercepted’. Similar to the vague language of the IT bill, such an ambiguous statement can have the provision apply to any person, since it doesn’t specify the meaning of the word “suspicious”.
Such controversial laws have been repeatedly exploited by the state agencies in the recent past. The year 2019, in particular, was marked by arrests of journalists as well as singers and comedians, under the provisions of the Electronic Transaction Act.
Bhrikuti Rai is an investigative reporter for the Post, covering technology, environment and human rights. She loves all things audio, and is co-creator of Boju Bajai podcast.