Problem with the Passport Bill is not with power of the executive to deny or cancel passport but with absence of clear grounds on which the executive can write for denial and cancellation
A bill to repeal Passport Act (1967) was tabled for discussion in the Parliament on September 27, 2018. However, the President has refused to endorse it and the bill is likely to be reviewed before it is tabled again. So what is wrong with the bill?
The most problematic provision that has resulted in public outcry is the vast discretionary power conferred to the executive to deny, withhold or cancel passports. According to the bill, “any government authority” can write to withhold or not issue passport to any person (duty to provide reasons is not provisioned). The bill also endows power to the government in equal footing of the courts to order to forbid a person from travelling abroad, withhold issuance of passport or cancellation of issued passport. This provision has raised serious concerns that shifting of such power to the executive may and will be exploited by the government against its critics such as human rights defenders and political opponents.
Executives around the world claim they have unlimited discretion to deny passports. They argue that the executive has the inherent power to act independently with regard to foreign affairs and passport regulation is a legitimate exercise of executive’s powers on foreign affairs. But are “unlimited” powers to deny or withhold passport peculiar to Nepal? If not, how do other countries keep this executive power in check so as to protect exploitation of the citizens at the hands of the government?
International practice
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Passport Act (1926) of the United States allows the Secretary of the State to deny issuance of passport. The Secretary of State can deny passports merely on the grounds of “best interest” of the US. In one instance, Dr Walter Briehl, a psychiatrist was denied renewal of his passport after he failed to provide affidavit regarding his past and present membership of communist party. Even when he brought the case before the court, the court held that Briehl had disqualified himself to obtain passport by failing to fetch the affidavit required by Secretary of State.
In the case of Krauss vs Dulles, the courts held that it was unlawful for the Secretary of State to deny passports on mere grounds of membership to any organization improperly listed as subversive by “a state authority”.
In the case of Briehl, American Supreme Court stated that the Secretary of State does have the power to determine eligibility but only to the extent that it doesn’t violate the constitutional rights of the individual. The court also denied the absolute nature of such power and established the fair hearing of denial cases at courts. These instances show a mechanism of check and balance to the power granted to the executive.
In Canada, Canadian Passport Order (1981) endows the executive with the right to deny passport based on certain grounds—such as lost Canadian citizenship, being charged of indictable offence in or outside Canada, in parole or judicial interim release, owing debt to the crown for repatriation, having the possibility of committing terrorist acts so on. This demarcation of clear grounds of refusal creates a check and balance on the power to refuse passport granted to the executive. This ensures that the denial and revocation of passport by the executive is not politically motivated but based on legislative grounds. On the other hand, Passport Act of India (1967) provides authority to the executive to deny, withhold or revoke passports on various grounds without clearly indicating the grounds of denial.
Nepal’s Passport Bill is built on this particular Indian Act. The Indian Act and Nepal’s Passport Bill are comparable in many ways. Passport Act of India gives an unlimited power to the Central Government to refuse a citizen’s visit to any country if it deems that his/her presence in that country is not in public interest. The government can refuse issuance of passport or cause the passport to be revoked without any provision for check and balance. More importantly, Indian Passport Act states that the passport authority has the right to refuse passport if it believes that the issuance of passport will be against the sovereignty, integrity and national security of India. This allows the executive to exercise power to refuse or repeal passports and also limit a citizen’s visit to another country.
Faulty provisions
Nepal’s Passport Bill allows the government to reject or cancel the passport of an individual if the executive writes for such refusal or if “any government authority” writes for such refusal. There are trends of endowing the executive with power to deny or cancel passport, like in the cases of the US, Canada and India. But in Nepal, where the constitution has guaranteed the citizen the right to move freely, there should be clearly demarcated grounds on which passports can be denied or cancelled, as in Canada.
Problem with Nepal’s Passport Bill is not with the power of the executive to deny or cancel passport but with the absence of clear demarcation of the grounds on which the executive can write for such denial and cancellation. The absence of such explicit grounds creates an environment where people can be exploited at the hands of the government for just holding differing or critical views against the government. Besides, the Bill does not ensure the person to whom the passport is denied or whose passport is canceled, the right to appeal to the courts for a fair examination of the grounds for such refusal or cancellation. This contradicts the notion of due process of law, which is one of the fundamentals of Nepal’s constitution.
Another controversial provision of the bill is the provision of “travel permission”. There is no clear definition of “travel permission” which can be interpreted to mean that every citizen needs permission from the government to travel abroad. This can be vaguely interpreted to mean that the government is restricting fundamental rights of movement of citizens.
Elsewhere, the term “travel permission” is used to refer to the permissions required by the minors to travel with people other than their parents or legal guardians. In this sense, permission to travel is a travel document required for dependents. However, there is no such clear indication in the bill. The Indian Passport Act, on our Passport Bill is largely built, has a provision for “travel document” referring to documents which allow persons to travel with documents other than passport. Probably, “travel permission” is similar to India’s provision of “travel document”. But again, given the use of term “permission”, it can be subject to exploitation by the government to restrict movement of people or activists who raise voices against the government unless there is a clear definition and delimitation of “travel permission” in the bill itself.
We need new legislation to regulate passports. Passport Bill is welcome in the sense that it will repeal decades-old outdated Passport Act. Such legislation is necessary to regulate not only ordinary passports but also diplomatic, service, special passports etc. But fundamental changes, with clarifications, should be made to this bill before it is taken to open public discussion or re-tabled in the parliament. The bill should ensure that when it comes to right of any individual, balance is maintained between the executive power of the state to regulate and the citizens’ right to exercise fundamental constitutional rights and also that, where dispute arises, the courts have authority to review the power of the executive.
The author is an attorney at law
