US embassy cable - 05KATHMANDU2453

C O N F I D E N T I A L SECTION 01 OF 02 KATHMANDU 002453 
 
SIPDIS 
 
DEPT FOR SA/INS 
NSC FOR RICHELSOPH 
 
E.O. 12958: DECL: 11/14/2015 
TAGS: PGOV, PHUM, NP, Nepali Government Policy 
SUBJECT: NO STAY ON MEDIA ORDINANCE 
 
REF: A. KATHMANDU 2229 
     B. KATHMANDU 2318 
     C. KATHMANDU 1690 
 
Classified By: Ambassador James F. Moriarty. Reasons 1.4 (b/d). 
 
Summary 
------- 
1. (C) On November 11, the Supreme Court declined to issue a 
stay order on the implementation of the controversial media 
ordinance (ref A).  The Court also refused to continue the 
interlocutory stay order issued on October 27 ordering the 
government not to take further action against Kantipur FM, a 
private radio station (ref B).  While the Court issued no new 
ruling on the issue of whether FM radio stations could 
broadcast news (ref C), the Court has bundled the three media 
issues of the media ordinance, the Kantipur FM seizure, and 
the FM radio newscast together and has asked all parties to 
submit written documentation and information to the Court by 
November 28.  The Court can then rule on that day, issue a 
ruling in the future, or set a date for another hearing in 
the three cases individually or as one issue together.  In 
protest against the Supreme Court's decision not to issue an 
interim stay order, the Nepal Bar Association staged a 500 
lawyer strong sit-in at the Supreme Court on November 13 and 
announced a country wide boycott on November 16.  End summary. 
 
Court Declines to Issue Stay Order 
---------------------------------- 
 
2.  (U) On November 11, the Supreme Court declined to issue a 
stay order on the implementation of the government's 
controversial October 9 media ordinance, and refused to issue 
an interim stay order against the government's October 21 
actions towards Kantipur FM's simultaneous broadcasting which 
His Majesty's Government of Nepal (HMGN) claimed violated the 
media ordinance.  The Court issued the judgment after an 
eight-day hearing on three separate cases challenging the 
ordinance and HMGN's action against Kantipur FM.  The Court 
said that the questions raised during the hearing on the 
constitutionality of the media ordinance would be settled in 
the final decision in the case, on a date to be announced. 
 
Free Speech Proponents Pan Court 
-------------------------------- 
 
3. (C)  Plaintiffs' lawyers argued that the Court should 
issue an immediate interim order against the ordinance as 
failure to do so would cause irreparable damage not only to 
FM radios but to all media consumers.  Lawyers also argued 
that the writ was "directly related to freedom of 
expression."  Claiming that the ordinance was against Nepal's 
constitution, the attorneys asserted that "people's 
sovereignty cannot be excluded from freedom of expression." 
They also noted that hundreds of journalists would lose their 
jobs as a result of the ban on news broadcasts.  However, the 
Court ruled that the plaintiffs had failed to make a case 
that immediate action by the Court was necessary.  Following 
the Supreme Court ruling, the Nepal Bar Association staged a 
500 lawyer strong sit-in at the Supreme Court on November 13, 
and announced boycott action across the country on November 
16.  Front page media coverage also criticized the Supreme 
Court for failing to protect freedom of speech. 
 
News Broadcasts on FM Radios Continue 
------------------------------------- 
 
4. (SBU) The Supreme Court's ruling had an immediate chilling 
effect on Kantipur FM, which ceased broadcasting news. 
However, according to Bishnu Nisthuri, President of the 
Federation of Nepalese Journalists, other FM stations that 
began broadcasting news in August, following the Supreme 
Court's stay on the government's February 1 ban on all FM 
radio news broadcasts, continued to broadcast news. 
 
5. (SBU) The Supreme Court Registrar plans to submit to the 
bench the FM news ban case on November 28, along with the 
media ordinance and Kantipur FM seizure cases.  The Court 
could then rule on that day, a future date, or choose to hold 
a further hearing.  Three Embassy contacts reported HMGN's 
actions appeared specifically targeted at the Kantipur media 
group, the largest private media company in the country. 
Following the government's seizure of satellite uplink 
broadcasting equipment on October 21, Kantipur FM continued 
broadcasting in the eastern region by using local stations 
individually. 
Court Decision Derided But Institution Upheld 
--------------------------------------------- 
 
6. (C) Ram Krishna Timalsena, Acting Registrar at the Supreme 
Court, told Emboff that since the Court would rule on the 
constitutionality of the media ordinance in the final 
verdict, the Court saw no need to issue an interim stay.  He 
said that no date had yet been set for the final ruling.  He 
noted that the Supreme Court had asked the parties to submit 
a written reply by November 28, after which the Court would 
set a date for the final hearing.  Lawyer Agni Kharel 
speculated to Emboff that the Court would delay at least six 
months before issuing a final ruling, allowing the ordinance, 
which is only in force for six months, to expire, thus 
relieving the Supreme Court from the need to issue a 
decision.  He said that the ordinance was detrimental to all 
media, and noted that many journalists would lose their jobs 
as a consequence of the ordinance.  Bishnu Nisthuri told 
Emboff that not issuing a stay order indicated the "malafide 
intentions" of the Supreme Court.  Nevertheless, he stated 
that "we have to respect the decision of the court." 
 
Comment 
------- 
 
7. (C) The Supreme Court's decision to postpone a decision on 
these highly politicized, civil rights issues does not bode 
well for the rule of law in Nepal.  The Court has started to 
hear the case questioning the constitutionality of the Royal 
Corruption Control Commission (RCCC).  While people still 
view the Court as an institution to protect the constitution, 
there is increasing concern that, in the end, the Court will 
bow to pressure from the Palace. 
MORIARTY