Upper House endorses Bill on Special Service allowing phone tapping without court orderLegal experts say the provision could be misused by the government to silence dissidents.
The National Assembly on Wednesday endorsed the Bill on Special Service allowing the intelligence agencies to intercept the conversations between the ‘suspects’ using electronic medium, which the legal experts have criticised saying it is the breach of the right to privacy.
The bill now needs approval from the House of Representatives before it comes to enforcement. Registered by the Prime Minister’s Office in the federal parliament on December 15 last year the government says the bill is necessary to control acts of “secession, espionage, sabotage and subversion” and “protect national sovereignty, national integrity and communal harmony”. It envisions a specialised office for intelligence gathering under the National Investigation Department and the formation of a nine-member committee led by the prime minister to draft the necessary policy, coordinate and provide guidance.
The law allows the intelligence officials to serveil, monitor and intercept the suspicious audio or audiovisual conversation at the individual or institutional level. The Nepali Congress had strongly objected to the bill arguing the state machineries can misuse and target the dissents if they are allowed for the surveillance.
The lawmakers from the main opposition even had demanded that it should be rejected from being introduced in the parliament. However, they supported the bill after the government agreed to introduce a stern action if the officials in the intelligence service are found misusing the surveillance provisions.
The bill includes a provision of a seven-year jail term for any officials who misuse their authority and listen in on conversations at the individual and institutional levels without justification.
The proposed office, under the Prime Minister’s Office, can only intercept calls after the head of the intelligence has issued a written document explaining a legitimate reason as to why the move was necessary.
The bill also offers a person who feels is being spied on by the intelligence a recourse to the law.
The bill was discussed for over two months in the Legislation Management Committee of the Upper House where the government agreed to incorporate the provisions for the actions.
“The bill is very important to strengthen the state’s intelligence service,” said Minister for Law and Justice Shiva Maya Tumbahamphe while presenting the bill for endorsement. “The bill was discussed thoroughly in the legislation committee to have common positions among the lawmakers.”
The opposition lawmakers say the bill was revised from its original version following their pressure and it gives no scope for misuse. “We believe the provisions for the actions will ensure against its misuse,” Prakash Pantha, a Nepal Congress lawmaker who is a member of the House committee, told the Post. He said as the intelligence official found misusing the law could face seven years of jail term and along with loss of the job, s/he would be careful before recording and using the recordings of the conversations.
Legal experts, however, say it is wrong to allow the intelligence agencies to allow the tapping without permission from the court. Sher Bahadur KC, former chairperson of the Nepal Bar Association, said the bill violates the Right to Privacy. He said even today the phone tapping is allowed in the serious criminal and corruption cases only after the permission from the court.
“Allowing the intelligence agency to decide on recording and listening to conversation always gives room for misuse,” he told the Post. “I urge the Lower House to reject the bill.” He says as the intelligence agency directly functions under the executive, those in power can always use it as a tool to target their opponents.
The experts say as revelation of personal information could lead to an irreparable loss of an individual, there must be a proper rule to guide surveillance. Advocate Baburam Aryal, who specialises in cyber law, it is the general rule that by no means the right of people can be curtailed. However, there are exceptions when the state can curtail those rights but that shouldn’t be the usual phenomenon.
The legal experts say the provisions of seven years of imprisonment will make the investigating officials accountable and compel them to think twice before deciding to record the conversations though there are challenges for the general public to fight legal battles against the government officials. “However, the recent authoritative moves of the incumbent government gives us room to doubt on the motive behind the law,” advocate Mohan Lal Acharya, who worked as a legal adviser to the Constituent Assembly, told the Post. He said many laws drafted by the KP Sharma Oli government are intended at curtailing the right to freedom and special service law might have the same intention.
Ever since coming to power, the Oli administration has introduced around half a dozen bills that could be used to shrink civic space, and curtail freedom of expression and press freedom.
It introduced Media Council and Information Technology bills with the hefty fines and imprisonment for what the government deems “improper content”. Though the Media Council Bill has been revised following criticism, the IT bill is still in consideration in the parliament.
The government is also in the final stages of readying the mass media bill, which too has provisions aimed at controlling the media.
The amendment bill to the National Human Rights Commision Act too has also been dragged into controversy as some of the planned provisions treat the constitutional body like the government’s subordinate when the commission is a constitutional body.