Mukunda Kattel

A couple of weeks ago, a former secretary of the government was reportedly detained for social media posts abusive to ministers and high-ranking government officials of the day. News of arrests on cybercrime charges have been on and off for sometimes now. However, the secretary’s detention drew much public attention, probably because of his rank-status. It has also stirred a debate on the scope of ‘free speech’ and the potency of the cybercrimes act that sanctions such arrests. Nepal Tarun Dal, the youth wing of the main opposition party, called the arrest a breach of the freedom of expression guaranteed by the constitution of Nepal. So was the opinion of some human rights advocates. While the former secretary has been released on bail, his detention reminds me of the perplexing question besetting the discipline of human rights as a whole: how free a particular freedom can be.
The right to freedom of expression is a fundamental human right, with both a personal as well as a social dimension. It arms a person with the freedom to voice and articulate, and claim their stake in social and political collectives. To voice something, one requires the freedom to think critically, imagine creatively, argue logically and dissent constructively. Freedom of expression thus serves as a laboratory of ideas and opinions that are needed for the development of a person’s faculty of reasoning and objective understanding of the world.
Freedom of expression lays the foundation for other rights and freedoms, such as the right to organise and unionise, the right to participate in political processes, and the right to mobilise for good governance and in defence of other human rights. Smooth interplay of a plurality of voices contributes to the health of democracy. By the same token, democracy ails in the absence of an environment, and ability to, communicate freely. Freedom of expression is, therefore, essential for the future of democracy as well.
As Nobel laureate Amartya Sen emphatically demonstrates in “Development as Freedom,” freedom of expression is also the bedrock of social and economic development of a society. Sen argues that a country with a democratic government and a free press can protect its people from such a calamity as famine, not to speak of other low-scale socio-economic distresses. By bringing imminent crisis such as starvation and epidemics, to the attention of the people at large and the government, a free press becomes a partner in crisis mitigation.
However, freedom of expression is not an absolute human right, like most other human rights. Such acts as defamation, incitement of violence, hatred, slander and sedition, which freedom of expression is inherently susceptible to, do not fall within the scope of the freedom of expression. And, as such, such acts of expressions in any form can ‘reasonably’ be suspended and restricted.
The Universal Declaration of Human Rights (UDHR), a milestone document that sets out the rights and freedoms to which every human person is equally entitled universally, declares in Article 19 that every person has the right to freedom of opinion and expression, including the “freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” The International Covenant on Civil and Political Rights (ICCPR), which operationalises the ‘civil’ and ‘political rights,’ including the freedom of expression, provided for in the UDHR, sets out two conditions, under Article 19 (3), in which this freedom can be limited. These conditions are “the respect of the rights or reputations of others” and “the protection of national security or of public order, or of public health or morals.” Put simply, an expression that violates the rights of others and undermines national security or public health is not a free speech.
Article 17 (2) of the constitution of Nepal guarantees the freedom of expression and opinion, among other rights and freedoms, in line with the UDHR and the ICCPR. It also sets out conditions under which the freedom can be reasonably restricted by making appropriate legislation. Among the conditions are acts that “undermine the sovereignty, territorial integrity, nationality and independence of Nepal … defamation … or any act which may be contrary to public decency or morality.” These limitations are within those recognised by the ICCPR.
The restrictions allowed by the international human rights law must, however, pass what is known as a ‘three-part test’ of ‘legality’, ‘legitimacy’ and ‘necessity’. The first test requires a proper law – adopted by parliament – to authorise such restriction. The law should have clear-cut provisions and be accessible to the public. Restrictions cannot be imposed on the basis of administrative orders or other means. The second test requires restrictions to be limited to the two legitimate aims: respect for the rights of others; and, protection of national security and public health, as reviewed above. The test of ‘necessity’ – the third test – requires that a restriction is reasonably justified and proportional to the aberration committed.
These tests are strict and mandatory, designed to make sure a restriction on freedom of expression is applied as exceptionally as possible and only as the last resort. A restriction becomes a violation of human rights if it does not outweigh the value of the right being restricted. The tests suggest that public authorities do not have a free hand to impose restrictions. Their acts must be extremely cautious and measured.
‘Rights claim’ and ‘rights delivery’ have inherent subtleties and nuances. They are balanced by the notion of ‘rights’ and ‘obligations.’ While we, the rights holders, have the right to express and claim, every claim we make does not qualify to be a human rights claim in itself. When we claim our rights, we have the obligation to make sure our claims do not trespass the rights areas of others. The human rights regime does not give us the freedom to hurt the sentiment and worth of others while enjoying our rights. Let us all be reminded that our freedoms are limited by the freedom of our fellow beings.

(A PhD on human rights and peace, Kattel is a human rights professional who writes on political and social issues.)