US embassy cable - 04KATHMANDU1717

C O N F I D E N T I A L SECTION 01 OF 03 KATHMANDU 001717 
 
SIPDIS 
 
DEPT FOR SA/INS, DRL 
DEPT PLEASE PASS TO USAID 
 
E.O. 12958: DECL: 08/27/2014 
TAGS: PGOV, PHUM, KWMN, NP, Nepali Government Policy 
SUBJECT: NEPAL: JUSTICE SECTOR AND RULE-OF-LAW UPDATE 
 
REF: A. KATHMANDU 1406 
     B. KATHMANDU 1193 
     C. KATHMANDU 1226 
     D. KATHMANDU 1583 
 
Classified By: Ambassador James F. Moriarty; Reasons 1.4 (b/d). 
 
======= 
SUMMARY 
======= 
 
1. (C) Nepal's legal institutions are making some progress 
despite the difficulty of operating in an insurgency.  The 
courts, led by a reform-minded Supreme Court Chief Justice, 
are attempting to reform from within, even though they are 
still plagued by corruption and traditional societal 
expectations.  The anti-corruption watchdog, the CIAA, has 
recently had some startling successes, earning it increasing 
respect from the Nepali public.  In short, Nepali legal 
institutions appear to be slowly evolving away from their 
historical functions of safeguarding vested interests.  END 
SUMMARY. 
 
========================= 
CHALLENGES FOR THE COURTS 
========================= 
 
2. (C) Nepal's court system, led by the Supreme Court, faces 
a number of significant challenges.  The judiciary remains 
vulnerable to influence peddling and corruption, and suffers 
from an insufficient budget and lack of training across the 
sector.  (NOTE: While the judiciary,s budget was reportedly 
increased by NRs 590 million over the last year, at less than 
.4 percent of the national budget, it remains precariously 
low by international standards. END NOTE.) Chief Justice 
Gobinda Bahadur Shrestha and Justice Hari Prasad Sharma 
admitted to the Ambassador recently that they were concerned 
about corruption of judges.  Consequently, the Court's 
judicial reform planning included creating a new 
inspectorate-type organization.  Chief Justice Shrestha 
welcomed any possible technical assistance for creation and 
institutionalization of this new organization.  (NOTE:  The 
legislation that created the CIAA does not give the 
Commission clear authority to investigate judges or the 
military.  The CIAA has told the Embassy that the judiciary 
has "blocked" their attempts to investigate judges.  The new 
judicial "OIG" could conduct routine tribunal inspections and 
also special investigations of allegations of judicial 
corruption. END NOTE.) 
 
3. (C) In addition to concerns about undue influence on the 
courts, many Nepalis simply do not believe that they can get 
recourse to the law.  Extremely long dockets (some cases have 
dragged on for 20 years) do not build public confidence.  The 
Supreme Court is aware of the problem and in the past year 
its administrative arm, in cooperation with the Judicial 
Council, evaluated and removed scores of unproductive 
lower-court judges.  To ensure that the Supreme Court is able 
to keep its own docket moving, the Supreme Court is 
attempting to focus on only those cases that could have a 
significant impact on nation-wide jurisprudence, Shrestha 
told the Ambassador. 
 
4. (C) Complicating delivery of speedy justice, the judicial 
summons system in many parts of the country is ineffective 
and in many cases, non-existent, making it virtually 
impossible for courts to notify parties of summons to 
proceedings.  Nepal's terrain and insurgency complicate the 
summons mechanism, making solutions difficult to achieve. 
Adding to court delays and problems is the difficulty of 
simply operating during an insurgency that affects most of 
the country.  The impact of the Maoist insurgency on judicial 
operations is significant.  "Maoist Peoples' Courts" operate 
in some areas and provide an alternative to the State, 
although in most anecdotal reports kangaroo justice is the 
only real product of these "alternative courts."  The larger 
impact of the insurgency is the unwillingness and/or 
inability of judges to work in conflict-affected 
jurisdictions.  Security for judges, as for many civil 
servants, is a significant concern. (NOTE:  Maoists attempted 
to assassinate Chief Justice Keshab Prasad Upadhyay in 2001. 
END NOTE.)  Some judges operating in Maoist-affected areas 
reportedly change houses and beds nightly.  In some 
districts, courts simply do not operate frequently enough to 
provide citizens with any real sense of recourse to the law, 
and as a result, citizens have stopped bringing cases. 
 
5. (C) The Chief Justice recently expressed concern to the 
Ambassador that Nepal's security forces were not yet 
sufficiently responsive to judicial orders (e.g., writs of 
habeas corpus, court orders to find or release detainees held 
under the Terrorist and Destructive Acts Act (TADA)).  There 
were still occasional incidents of non-compliance (Reftels). 
However, it remains unclear whether non-compliance stems from 
willful disobedience or is simply a byproduct of the security 
forces' disorganized and disjointed detention systems, which 
make it difficult to find detainees in the system and comply 
with instructions in a timely manner.  The justices also 
acknowledged that cases have occurred in which suspects were 
released as a result of court orders only to be rearrested by 
security forces within moments of being freed.  (NOTE:  Under 
the TADA Act, security forces, when granted authority by a 
Home Ministry officer, can arrest and detain for up to 90 
days anyone who "has to be prevented from doing anything that 
may lead to a terrorist or destructive act." END NOTE.) 
 
6. (C) Chief Justice Shrestha has been a supporter of court 
reform.  The Supreme Court developed an ambitious 5-year 
reform and modernization agenda for the judiciary, which was 
published in July.  The Chief Justice recently told the 
Ambassador that he had designated his number two, Justice 
Sharma, as the coordinating justice for the judicial reform 
and modernization program, hoping to ensure continuity of the 
process. (NOTE: Chief Justice Shrestha is scheduled to step 
down in January 2005 upon reaching the mandatory retirement 
age of 65.  Justice Hari Prasad Sharma is the most likely 
candidate for appointment as the next Chief Justice, but 
because of his age, he will also have to retire after little 
more than a year in the position.  The prospects for reform 
after these two justices are less promising, according to 
legal experts.  END NOTE.) 
 
7. (SBU) Through administrative management of the courts, the 
Supreme Court is working to improve the disposition of 
commercial disputes.  Because of delays and insecurity in the 
current system, the commercial sector had traditionally shown 
a preference for alternative dispute resolution over formal 
litigation of commercial cases.  Moreover, many Nepali judges 
were simply ill trained to handle commercial cases.  The 
Supreme Court is considering a system whereby judges with 
more expertise on commercial matters at the appellate court 
would hear appeals of commercial cases from the district 
courts. 
 
============================================= ===== 
COMMISSION FOR INVESTIGATION OF ABUSE OF AUTHORITY 
============================================= ===== 
 
8. (SBU) Chief Commissioner of the Commission for the 
Investigation of the Abuse of Authority (CIAA) Surya Nath 
Upadhyay told the Ambassador on August 4 that the work of the 
CIAA was not just about investigations and prosecutions, but 
changing national expectations regarding the impunity of 
government officials.  Upadhyay expressed the view that 
convincing the public that corruption was decreasing was 
critical to the Commission's mission.  To reach this end, he 
stated the CIAA was working to be responsive to legitimate 
complaints and to bring strong cases to the Special Court. 
In 2003, for example, the courts acted upon 55 CIAA cases (as 
opposed to only 73 corruption cases between 1990 and 2000), 
with the CIAA earning an 85 percent conviction rate (47 of 55 
cases filed resulted in guilty verdicts). 
 
9. (C) Meanwhile, strong public support has invigorated the 
CIAA staff, Upadhyay stated.  The CIAA,s aggressive 
enforcement (i.e., in one night, the CIAA raided 22 
government agent revenue houses) has garnered favorable 
public perception and recent high level corruption cases have 
strengthened its standing in the eyes of the Nepali public. 
In recent days, the CIAA has brought corruption charges 
against three former Inspector Generals of Police.  The 
CIAA's work has also generated powerful adversaries.  (NOTE: 
A recent national poll in Nepal found the CIAA enjoyed the 
highest rating among 21 Nepali institutions such as the army. 
 The same poll found that the three top concerns of Nepalese 
were jobs, security and corruption.  END NOTE.) 
 
10. (SBU) Despite the success thus far, the Chief 
Commissioner argued, there remained a need to train not only 
CIAA staff, but also the judges of the Special Court on 
corruption issues.  There remains a lack of sufficient 
understanding of national and international law on 
corruption, understanding of the various modalities of 
corruption as well as the functional skills needed by judges 
and prosecutors to handle high profile cases involving 
powerful personalities.  (NOTE: USAID, through its rule of 
law program, and possibly INL through a technical advisor, 
are working to expand and deepen the capacity of the CIAA to 
investigate and prosecute cases.  END NOTE.) 
 
============================================= ============= 
Ministry for Law, Justice and Parliamentary Affairs (MLJP) 
============================================= ============= 
 
11. (SBU) Minister for Law, Justice and Parliamentary Affairs 
Minister Tek Bahadur Chokhyal and Ministry Secretary Kul 
Ratna Bhurtel told the Ambassador on August 2 that ongoing 
efforts to amend ordinances in the absence of a Parliament 
had recently been the Ministry's primary workload.  Such 
actions were required, for example, to accommodate WTO and 
other regional trade accessions.  Law Secretary Bhurtel 
explained that for Nepal to become a party to any 
multilateral treaty, declaration or convention, the Treaty 
Act of 1990 required the approval of both the Lower House of 
Parliament and the King.   Since there had been no sitting 
Parliament to ratify the WTO treaty by the deadline of March 
30, the King had amended these clauses through an ordinance 
to enable the cabinet to approve such treaty in concurrence 
with the King.  (NOTE:  As soon as a parliament is convened, 
these ordinances will become null and the treaty will have to 
be acceded to through the constitutional process. END NOTE.) 
 
12. (SBU) Chokhyal explained that new appointees to the 
judicial service ostensibly receive pre-service training from 
his Ministry's "Judicial Service Training Center."  However, 
training has been largely inadequate.  While in-service 
training programs were occasionally provided, the Minister 
hoped the new judicial academy would assume the functions of 
the old training center, and better meet the needs of the 
country's judicial system.  (NOTE:  USG and other donors are 
providing support to stand-up the new Judicial Academy. 
However, the academy does not yet have a staff or curriculum. 
 END NOTE.) 
 
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COMMENT - SOME CAUSE FOR OPTIMISM 
================================= 
 
13. (C) Nepal's justice system hobbles along, constrained by 
corruption, a lack of resources, antiquated systems and a 
lack of general access.  Despite these realities, justice 
sector reform efforts, particularly when viewed through the 
optic of recent Supreme Court actions and decisions, appear 
serious (Reftels B/C/D).  These reform and modernization 
efforts suggest judicial independence and rule-of-law 
standards could improve in the next few years, if the efforts 
are sustained. 
 
14. (C) Recent major successes by the CIAA in the Special 
(Anti-Corruption) Court, and the CIAA's willingness to 
prosecute former senior public officials have earned the CIAA 
a good deal of public respect, a rare thing for a Nepali 
government institution. More than a score of high-profile 
investigations are reportedly in the prosecution pipeline; in 
the last few days the CIAA announced new cases against three 
former Inspector Generals of Police.  Growing non-partisan 
civil society activism and support for justice sector reform 
and anti-corruption initiatives are positive signs of the 
public's reaction to these efforts. 
MORIARTY