US embassy cable - 05KATHMANDU2699

C O N F I D E N T I A L KATHMANDU 002699 
 
SIPDIS 
 
SIPDIS 
 
DEPT FOR SA/INS, S/CT 
 
E.O. 12958: DECL: 12/05/2015 
TAGS: PTER, PHUM, PGOV, KCRM, NP 
SUBJECT: ANTI-TERRORISM ORDINANCE CHANGED 
 
 
Classified By: Charge Elisabeth Millard. Reasons 1.4 (b/d). 
 
Cases to be Heard In-Camera, 
Denying Defense Lawyers Documents 
--------------------------------- 
 
1. (U) The government changed legal procedures relating to 
anti-terrorism legislation when it most recently renewed the 
Terrorist and Disruptive Ordinance (TADO) 2005 for six 
months.  The Courts will now hear all anti-terrorist cases 
in-camera.  Under existing law, cases relating to "vulnerable 
groups" such as women and children, could request closed 
hearings, but those involving terrorism had hitherto not been 
included.  Another new provision limits legal documentation 
to only the defendant and plaintiff, and not to defense 
lawyers.  Additionally, the burden of proof will now be on 
the accused to show innocence, as is the practice with those 
accused of drug and human trafficking. 
 
New Provisions Applied to Trial of Maoist Leaders 
--------------------------------------------- ---- 
 
2. (U)  As the TADO is an ordinance, it must be renewed every 
6 months.  Changes made in the mid-September renewal of the 
ordinance came to light on December 1, when the government 
applied the new provisions for the first time in the cases of 
two Maoist leaders on trial.  Matrika Prasad Yadav and Suresh 
Ale Magar appeared before the Patan Appellate Court on 
charges of "supplying and possessing explosives."  Surensra 
Mahato, the defendants' lawyer, said "I was not allowed to 
have copies of legal documents of my clients."  Earlier in 
the month the government began trying the same two 
individuals under TADO for the January 26, 2003 murder of 
former Inspector General of Police, Krishna Mohan Shrestha. 
This murder case is ongoing. 
 
Mixed Reaction 
-------------- 
 
3. (C) Human rights activists accepted the need for in-camera 
hearings and were not troubled by shifting the burden of 
proof to the defendants in terrorism cases.  Kedar Prasad 
Poudel, Acting Secretary of the National Human Rights 
Commission and a lawyer, told Emboff that it was common 
international practice for in-camera hearings and for the 
burden of proof to rest with the accused in cases of 
terrorism as long as the government presented specific 
evidence.  As in trafficking cases where the burden of proof 
was on the person accused of trafficking, Poudel argued this 
provision in the TADO must be specific and limited.  Sambhu 
Thapa, President of the Nepal Bar Association agreed, saying 
the government must provide "real evidence" against the 
accused.  For example, the accused could be called to show 
why the socket bombs the police found in the accused's 
custody were not meant for terrorist uses. 
 
4.  (C) Civil society took a dim view of the new provision 
denying attorney's access to legal documents.   Human rights 
lawyer Bhimarjun Acharya said the denial of legal documents 
to lawyers of the accused was not in tune with the 
International Covenant of Civil and Political Rights (ICCPR), 
that "stresses fair trial, which has been subverted by this 
amendment."  Thapa noted that it was "totally absurd and 
foolish on the part of the government," not to provide 
evidence and documents to the defense lawyer. 
 
Comment 
------- 
 
5. (C) We have long been discussing with His Majesty's 
Government of Nepal the need to incorporate provisions that 
would allow the government to prosecute Maoists rather than 
detaining them for years on end.  TADO's new provision for 
in-camera hearings should increase government prosecutions of 
suspected Maoists as security concerns, including threats to 
witnesses, prosecutors and judges, have prevented courts from 
hearing cases of terrorism suspects held in long-term 
custody.  However, the provision denying defense lawyers 
access to documents makes any trial a mockery of justice. 
Given the government's poor record of human rights, the lack 
of transparency and the lack of legal representation together 
weaken the rule of law. 
MILLARD