US embassy cable - 04KATHMANDU1193

S E C R E T SECTION 01 OF 02 KATHMANDU 001193 
 
SIPDIS 
 
E.O. 12958: DECL: 06/24/2014 
TAGS: PHUM, PGOV, MOPS, NP 
SUBJECT: NEPAL: SUPREME COURT ISSUES ORDER TO ARMY ON 
DETAINEES 
 
REF: A. KATHMANDU 500 
 
     B. KATHMANDU 591 
 
Classified By: CDA Janet Bogue; Reasons 1.5 (a), (b) and (d). 
 
1. (S) SUMMARY:  For the first time, Nepal's Supreme Court 
has issued a "show cause" order to the Royal Nepal Army (RNA) 
Chief of Army Staff (COAS) instructing the RNA to respond 
within specified timelines on habeas corpus petitions. 
Nepal's moribund judiciary and understandably frightened 
judges offer no means to appropriately prosecute Maoist 
suspects, or even keep them in legal and transparent civil 
detention.  Meanwhile, the RNA's unwillingness to repond to 
court orders and widely-suspected (and quietly confirmed) 
denial of due process to suspects damages the RNA's public 
image (critical to countering the insurgency), and denies 
Nepali citizens their civil liberties.  While the COAS 
reportedly met with Nepal's Attorney General to discuss 
habeas corpus writs on June 24, no specific cases were 
reviewed.  If the security forces were willing to provide 
protective services to a judge or judges hearing Maoist 
terrorist cases through the Special Court process (under the 
Terrorist and Destructive Acts Act), this impasse might be 
broken.  END SUMMARY. 
 
2. (U) On June 21 Supreme Court Chief Justice Govinda Bahadur 
Shrestha issued a "show cause" order to Chief of Army Staff 
Pyar Jung Thapa to instruct battalions and other Royal Nepal 
Army elements under his command to respond to writs of habeas 
corpus.  (NOTE:  A "show cause" order instructs the addressee 
to explain why a court order or law has not been complied 
with.  END NOTE.)  The order instructed Gen. Thapa to ensure 
that battalions and other RNA elements named as respondents 
in habeas corpus petitions reply in writing within specified 
deadlines.  (NOTE: While show cause orders have often been 
issued to ministries and various other government agencies, 
the Supreme Court has never before issued a show cause order 
to a COAS.  If General Thapa fails to respond, he could be 
cited for contempt of court.  END NOTE.)  On June 24, 
according to press reports, COAS Thapa and and Attorney 
General Sushil Kumar Pant met to discuss the processing of 
writs.  Following the meeting, Brigadier General B.A. Kumar 
Sharma, Chief of the Army's Legal Unit stated, "Army 
personnel do not have that much knowledge regarding legal 
issues, and because of that they may have made mistakes.  But 
we are ready to correct those." 
 
3. (SBU)  During FY 2004, the Supreme Court processed 189 
habeas corpus petitions naming various battalions within the 
RNA as respondents, with another 35 naming the police. 
(NOTE:  Nepal's fiscal year ends on July 15.  END NOTE.) 
According to Ram Krishna Timilsena, Spokesman and Joint 
Registrar for the Supreme Court, no RNA battalion or brigade 
has ever responded directly to a writ of habeas corpus. 
Instead, RNA Headquarters responds--typically in the 
negative.  The negative responses from headquarters foster 
widespread suspicion that the RNA is not being fully 
forthcoming with the Court, Timilsena indicated. 
 
4. (C) COMMENT:  No one knows the exact number of Nepalis 
being held in preventive detention (by the army or police) as 
suspected Maoists.  Some human rights groups claim to have 
been contacted by relatives of as many as 800-1,000 Nepalis 
who have "disappeared" in police or Army custody since 2000. 
(NOTE:  These tallies typically reflect the total number of 
claims ever filed and often do not take into account those 
subsequently released.  END NOTE.)  Because Nepali law does 
not require arresting authorities to notify family members or 
legal counsel of a detainee's whereabouts, habeas corpus 
petitions are often the only legal recourse available to 
family and friends seeking confirmation of their loved ones' 
whereabouts.  The Nepali security forces have been sharply 
criticized by domestic and international human rights groups 
for their lack of transparency regarding detainees in their 
custody.  Although former Prime Minister Surya Bahadur Thapa 
on March 26 issued a public reaffirmation of his Government's 
human rights policy, including a commitment to instruct its 
agencies to honor habeas corpus writs (Ref B), no visible 
improvement has occurred.  (Current PM Deuba echoed this 
statement in a June 21 meeting with families of suspected 
detainees, according to press reports.) 
 
5. (S) COMMENT CONTINUED: While the RNA refuses to admit 
publicly that it holds defendants in secret custody, senior 
Army Officers have admitted to the Embassy that they do.  The 
RNA cites the 2003 release of "thousands" of suspects by the 
government during the last cease-fire as one reason against 
handing over suspects to civil authorities.  The RNA also 
knows that, under the 2002 Terrorist and Destructive Acts 
(TADA) Act, those who have "to be prevented from doing 
anything that may lead to any terrorist and destructive act" 
can be held in preventative detention for a maximum of 90 
days, after which they must be charged for acts committed or 
released.  The Nepali judiciary is notoriously moribund, 
inefficient and corrupt.  More important, no judge, either in 
Special Court or at the District Appellate level, has shown a 
willingness to hear a terrorist case to conclusion out of 
fear for his/her life.  The Army argues, therefore, that it 
is left without a means to keep suspected Maoists off the 
street; if they release detained suspects, they argue, no 
working infrastructure exists to bring them to trial. 
Meanwhile, families of those "disappeared" have no means 
except the thus far ineffective habeas corpus writs to locate 
their relatives, and Maoist suspects in secret detention have 
no access to due process protections. 
 
6. (C) COMMENT CONTINUED: To date, the RNA has shown little 
inclination to respond to Court queries, while the civilian 
leadership in the Government has shown even less inclination 
to pressure the RNA to do so.  The Court's decision to 
confront the RNA leadership directly and publicly about its 
record of non-compliance may be an attempt to reverse that 
public perception.  While unprecedented, the Court's move is 
likely to do little in the short term to improve the Army's 
responsiveness. 
 
7. (C) COMMENT CONTINUED: The TADA Act contains a clause 
allowing for the creation of a Special Court to try terrorist 
cases.  If the Supreme Court could identify a judge or judges 
willing to try such cases to conclusion provided they were 
given physical protection, and the security forces were 
willing and able to provide such protection services, it 
might be possible to break this impasse.  Though in many ways 
not ideal, a special court process might resolve at least the 
issue of Nepali citizens being held incommunicado.  Embassy 
is prepared to explore this possibility with Nepal's Attorney 
General.  END COMMENT. 
 
8. (S) DAO COMMENT:  While it is clear the army is holding 
suspected Maoists, with some likely being innocent, the lack 
of a civilian judicial system able to process cases of 
suspected Maoists to conclusion is the crux of the problem. 
In a recent discussion, the Nepali Attorney General told the 
Defense Institute of International Legal Studies that judges 
do not prosecute Maoists because they feel they have no 
protection.  Army interlocutors regularly complain to RO 
that, despite provisions in the TADA Act for Special Courts 
to try Maoists, the judiciary refuses to use the provision. 
Army officers also explain that, when Maoists are captured 
without the knowledge of their leaders, they provide 
intelligence of high value on ongoing Maoist operations. 
Further, RNA officers claim that the detained Maoists giving 
intelligence themselves do not want their names released 
publicly.  They fear Maoist retaliation against their 
families for compromising Maoist plans now, and against 
themselves once they are ultimately released. 
BOGUE