Nepal’s Futile Attempt to Limit Free Speech

Many people in Nepal seem to believe that it is important to outlaw ‘hate speech’. But this is a slippery slope. Who is to judge what constitutes hate speech? And how do you suppress it without inviting a terrible backlash?

May 30, 2016

Nepal is no Bangladesh; you don’t get shot there for expressing your views. The public space is vibrant and every shade of opinion, however extreme, gets ample space in Nepali media outlets. But this does not mean there is no restriction on free expression in the country.

In Nepal there are authorities you can criticise at your peril. The recently promulgated constitution also has some vague clauses on press freedom, giving the state a lot of discretion over their interpretation and making them rife for abuse. For foreigners, it is tougher still, with a new government directive preventing them from speaking their minds.

According to the new directive, foreign travellers are forbidden from engaging in anything even remotely political while in the country. The ruling comes after Robert Penner, a Canadian living and working in Nepal, was recently deported for tweets that were deemed to be against ‘national interest’. The government, it appears, also did not take too kindly to his suggestion that the deaths in the recent protests in the Tarai belt be properly investigated.

Similarly, Martin Travers, a British national was sent packing — after being fined Rs. 50,000 and handed a 10-year ban from travelling to Nepal — for participating in a recent anti-government protest in Kathmandu. Before him, veteran Nepali journalist Kanak Mani Dixit was jailed on what many believe were trumped up charges. His crime? Vocal opposition to a high-level political appointment.

Cases of concern

Penner had a valid permit to work with a Kathmandu-based technology company called Cloud Factory, unlike many other foreigners who routinely overstay their visa and work in the country illegally (mostly out of love for Nepal rather than with an ulterior motive). Penner liked to tweet and engage in vigorous debates on the new constitution online, and was known as being combatively “pro-Madhes,” not afraid to openly challenge anyone whom he deemed “anti-Madhes”.

Penner had his critics. He was too abrasive for some. (This writer has himself often clashed with him on social media on some issues.) But even his worst critics in Nepal — some of whom claim to have been harassed and trolled online by the Canadian — don’t believe he should have been deported for his tweets and his inquiry about the deaths in Madhes if he had not violated any visa rules. It says a lot about the level of tolerance in Nepal when people can’t even tweet freely.

Penner’s case is sub judice in Nepal’s Supreme Court right now as he has challenged the grounds of his deportation.

Before Penner, it was Dixit who was jailed by the country’s main anti-corruption body, the Commission for the Investigation of Abuse of Authority (CIAA). Dixit had strongly opposed the appointment of Lokman Singh Karki — a person implicated in the suppression of the 2006 movement for democracy — as the head of CIAA. Karki is well-known for changing his political colours: once a diehard royalist, he swiftly jumped ship to the side of the democratic parties when it became clear that the Nepali monarchy was a spent force.

The grounds for Dixit’s prosecution were flimsy, as proven by the Supreme Court order to release him. According to the apex court, there was no evidence that he had abused his powers as the chairman of Sajha Yatayat, a widely-praised public bus service. It was a clear case of personal enmity.

Then came the arrest of Travers from a demonstration in Kathmandu. All available evidence suggests that he had joinedthe protest out of curiosity and that he had no political agenda. This was also why he was promptly released, but not without first paying a hefty fine and agreeing to a lengthy travel ban to Nepal. The British government subsequently issued a warning to its citizens travelling to Nepal to not get involved in any kind of political activities.

Indeed, the government has every right to formulate laws on what a foreigner in Nepal can and cannot do. But what are the standards it is aiming for? Is it looking to be North Korea or Syria or does it want to be a progressive country that is at ease with constructive criticism?

As Dixit’s case shows, such restrictions are not applicable only to foreigners. On May 23, another Nepali journalist, Shesh Narayan Jha, was arrested for taking photos of the government secretariat in Kathmandu. Jha happened to be outside the secretariat when a Nepali youth decided to smear the front of secretariat building with red colour resembling blood, an act Jha managed to capture. The youth, Ishan Adhikari, who was also taken into custody, was protesting what he termed the government’s reluctance to address the concerns of the protesting Madhesi and Janajati communities. Both were later freed but there have since been similar copycat acts of daubing red on the walls of the secretariat in support of Adhikari’s bold act of defiance.

Prime Minister K.P. Oli, it appears, is simply not bothered by the backlash against his recent efforts to control free speech. He is immune to such criticism. After all, he is someone who openly advocated enlisting goons into his party — the Communist Party of Nepal (Unified Marxist-Leninists), or CPN-UML — saying they deserved an opportunity to “correct themselves”. Nothing seems to bother him. This is why he has no hesitation in trying to limit the freedom of speech to serve his political agenda. The publicity stunts that he uses to whip up jingoistic nationalism among Nepalis seem to be working. Recently #ISUPPORTKPOLI became the most popular hashtag on Twitter in Nepal.

Restrictive Constitution

But it is not just Oli and the CPN-UML that wants to limit freed expression in Nepal. The Nepali Congress and the Unified Communist Party of Nepal (Maoist), the first and the third biggest parties in Nepali parliament respectively, also agreed on a constitution that in a roundabout way circumscribes press freedom.

For instance, the new constitution guarantees “full freedom of the press” in the preamble. But Article 19 (1) presents an extended list of restrictions on free speech. It bans material that is deemed to infringe upon “territorial integrity, nationality and harmonious relations between the federal units,” and those the state sees as abetting “hatred to labour and incitement to caste- and gender-based discrimination”. These restrictions were notably absent in the 1990 Constitution as well as the 2007 Interim Constitution. Likewise, Article 19 (2) introduces a restriction, also missing in the previous Constitutions, allowing the government to “make laws to regulate radio, television and online content”.

It is important to unreservedly condemn any such attempts to restrict free speech, the cornerstone of any functioning democracy. Many people in Nepal seem to believe that it is important to outlaw ‘hate speech’. But this is a slippery slope. Who is to judge what constitutes hate speech? And how do you suppress it without inviting a terrible backlash?

C.K. Raut — a Madhesi academic who advocates the secession of the entire Madhes region – started getting some traction among common Madhesis only after he was jailed. Before that he was just a firebrand radical whom very few people took seriously. The same is true of Penner, who was relatively unknown except among a small online community before his arrest and deportation. Penner now seems determined to use his new-found celebrity online — with no less than The New York Times writing an editorial on his behalf — to hound the Oli government and to continue his fight against what he believes are discriminatory provisions in the new constitution.

In these times of great political churning in Nepal, we need vigorous debates on all contentious issues, not the policing of free speech.

By Biswas Baral

The Writer is a Kathmandu-based journalist who writes on Nepal’s foreign policy.