Recommended language for a Nepalese privacy right
This proposal was created through international collaboration of lawyers and privacy experts who have a comprehensive understanding of the serious vulnerabilities of constitutional privacy protections. After further consultation with Privacy International’s advisory board, the strongest privacy protection provisions were selected. Based on the above, we recommend the following language for Article 28:
(1) Everyone has the right to the protection of the law against arbitrary or unlawful interferences with his privacy, home, property, communication or information.
(2) Any limitation on the exercise of this right must be provided for by law and respect the essence of this right.
This language provides the necessary flexibility to the legislative body to enact laws that enable the full realization of the right to privacy and creates a framework of effective safeguards for a modern democracy. As drafted, the text does not preclude the State from interfering with privacy in the interest of national security, public safety and other legitimate reasons, however any such interference must ‘respect the essence of the right’ This particular provision is intended to encourage Nepalese courts in finding inspiration from international human rights courts and other national supreme courts.
Recommended language for a positive obligation to protect rights
To ensure that the State protects and secures the right to privacy, we also recommend language for Article 33, Part IV on Duties of the State:
“Article 33. Responsibilities of the State: The State shall have the following responsibilities:
[...] to respect, protect, and secure fundamental freedoms and rights.”
This is a positive obligation, consistent with the International Convention on Civil and Political Rights, the European Convention on Human Rights, the European Charter on Fundamental Freedoms, and has been read into many constitutions around the world.