Click baitThe Electronic Transactions Act contradicts the constitution
Blogs, emails and social media sites represents technological advances of that were unthinkable till the 1970s. The widespread use of these marvels has called attention to how freedom of digital expression in Nepal needs to be examined. The arrest of Janajati leader Aan Kaji Sherpa back in early September, who allegedly posted objectionable matter on Facebook, should be examined in this context. Does it fall under freedom of expression guaranteed by the Interim Constitution under which Nepal was being governed at that time? Do we need to re-examine it in view of recent advances in information technology?
Freedom of expression
The 1990 Constitution that replaced the statute of the Panchayat period and restored multiparty democracy included freedom of opinion and expression as fundamental rights. It included a section titled ‘Press and Publication Right’ which stated that there would be no censorship, and that no press would be closed or seized for printing any news or reading material. However, it stated that laws could be made to impose restrictions on this right for materials that undermined Nepal’s sovereignty and integrity or jeopardising amicable relations among various castes. The restriction would also apply to any act of sedition, defamation or contempt of court or any act that goes contrary to decent public behaviour or morality.
Nepal is a signatory to the Universal Declaration of Human Rights, and has been a member of the UN since 1955. It is also a signatory to UN covenants such as the International Covenant on Civil and Political Rights (ICCPR) dealing with freedom of expression. In the early 1990s, Nepal’s Parliament passed a law called Treaty Act which stated that if there was a conflict between a national law and a treaty which Nepal had signed, the treaty would supersede the national law. However, Nepal’s Supreme Court ruled in a recent case (Chandra Kanta Gyawali et al vs Cabinet Secretariat, 2057 BS, Writ Number 3668) that the Treaty Act would not apply in the case of the constitution. In other words, any treaty which Nepal has signed cannot supersede anything written in Nepal’s constitution.
The new constitution
The Interim Constitution was promulgated in 2007 after Jana Aandolan II that abolished the monarchy and made Nepal a republic. It guaranteed the right to freedom as a fundamental right including freedom of opinion and expression.
However, it stated that laws could be made to impose reasonable restrictions on any act that may undermine sovereignty and integrity of Nepal or jeopardise harmonious relations among people of various castes, tribes, religions or communities, any act of defamation, contempt of court or incitement to offence, or any act which may be contrary to decent public behaviour or morality.
The third section of the recently promulgated Constitution of Nepal on fundamental rights and duties guarantees freedom of thought and expression, and states that laws can be formulated to impose reasonable restrictions as above. The section on right to communication prohibits any restriction on the electronic transmission of any news, editorial or article, or on the publication or transmission of audio-visual material. However, laws can be made to restrict this freedom in case of acts that undermine national integrity or amicable relations between different communities. The first draft of the new constitution had given sweeping powers to the courts regarding contempt of court. The penalty for contempt of court included fine and judicial custody. An amendment to the Constitution would be necessary to protect international covenants such as the ICCPR which protects freedom of expression.
A writ of mandamus was filed in the Supreme Court in November about two months after the promulgation of the new constitution to nullify Clauses 1 and 2 of Article 47 of the Electronic Transactions Act. It alleges that the article curtails fundamental rights and can be used by the state to prosecute innocent citizens. Terms such as ‘public morality’ and ‘decent behaviour’ in the act are not defined and are open to interpretation. It alleges that the article in is conflict with Article 17 of the new constitution which grants freedom of opinion and expression.
Raj is the secretary of the Nepali chapter of International PEN