NEPAL: IS THE STATE OF EMERGENCY NECESSARY?

C O N F I D E N T I A L SECTION 01 OF 03 KATHMANDU 001255 SIPDIS STATE FOR SA/INS LONDON FOR POL - RIEDEL E.O. 12958: DECL: 06/24/2012 TAGS: PGOV PTER PHUM NP GON SUBJECT: NEPAL: IS THE STATE OF EMERGENCY NECESSARY? REF: A. (A) KATHMANDU 1007 ¶B. (B) KATHMANDU 0695 ¶C. (C) KATHMANDU 0540 ¶D. (D) KATHMANDU 0968 ¶E. (E) KATHMANDU 740 ¶F. (F) KATHMANDU 731 Classified By: DCM ROBERT K. BOGGS. REASON: 1.5(B,D). -------------- SUMMARY -------------- ¶1. (C) When Prime Minister Sher Bahadur Deuba decided to dissolve Parliament, he cited MPs' refusal to extend the state of national emergency as a primary reason (Ref A). Legal experts and others, however, hold different opinions on the continued need of the state of emergency, as Parliament passed legislation granting the security forces many of the emergency powers to fight the Maoists--minus restrictions on civil liberties. End summary. -------------- -------------- SAFETY AND SECURITY UNDER THE STATE OF EMERGENCY -------------- -------------- ¶2. (SBU) The state of national emergency, first declared by King Gyanendra November 26 after Maoist insurgents unilaterally broke a four-month cease-fire, has been in continuous operation in Nepal (minus a 24-hour lapse in mid-May following the dissolution of Parliament) for nearly seven months. The ROYAL Nepal Army (RNA) has undoubtedly made gains against Maoist insurgents since November, and its deployment has boosted casualty statistics steadily upward. Residents of Kathmandu generally feel that security in the city--after a precipitous dip from December-April--has improved markedly. Businessmen report a decline in extortion attempts, and the incidence of urban bomb-blasts, a staple of the December and April general strikes, has dropped off sharply. More and more people are out on the streets at night, and businesses are open later. Other major cities also report a lessening of tension. Not far from the Kathmandu Valley, however, the situation can be vastly different, where some communities outside heavily fortified district headquarters are largely left to fend for themselves against marauding Maoists, especially at night. Many police posts in more remote areas have been abandoned, as the police consolidate their positions in more populated areas, often side by side with Army positions. Curfews are selectively applied on a district-by-district basis. At least two people have been shot and killed in the troubled district of Dang in southwestern Nepal for violating the curfew there. Kathmandu, on the other hand, has no official curfew, although most residents, shopkeepers and businesses observe, by tacit consent, an unofficial curfew of 9:00 p.m., although, as mentioned above, this appears to be being relaxed. Members of Kathmandu's business elite--many of whom faced threats and extortion before the emergency--generally approve of the clampdown, although some grumble that curfews and ubiquitous check-points cut into the tourism and entertainment industries' profits. The state of emergency has the full backing of Kathmandu's business leaders, as exemplified by the heads of the Chambers of Commerce and Industries. -------------- -- DO YOU NEED AN ORDINANCE WHEN YOU HAVE AN ACT? -------------- -- ¶3. (SBU) After ratifying the state of emergency in February, thereby ensuring its continuation until May 25, Parliament passed the Terrorist and Destructive Activities Act April 4, that codified into law many of the emergency provisions contained in the ROYAL ordinance (Ref B). The Act was intended to allow the Government to continue the fight against the insurgents without continued imposition of the state of emergency and to fulfill commitments under UN Security Council Resolution 1373 to take steps to combat terrorism (Ref C). Both the Act and the ordinance maintain the same definitions of "terrorist" and "terrorist activities," grant sweeping powers to members of the security forces, including the Army, to arrest without charge and/or hold in preventive detention suspected terrorists, and reserve the same penalties for commission of terrorist acts. (Note: While both the Act and the emergency ordinance allow the military to detain people, neither explicitly permits the army to hold detainees for extended periods. Instead, the military is supposed to turn over detainees to civilian authorities within 24 hours, according to the Ministry of Law and Justice. We have learned, however, that in many cases the military sidesteps this requirement either by ignoring it completely or by obtaining notification from the relevant civilian authority--often the Chief District Officer--that the jails are full, which, unfortunately, they often are. End note.) ¶4. (U) The Act does, however, differ from the ordinance in some procedural aspects, according to Dili Raj Ghimire, Under Secretary at the Ministry of Law and Justice. For example, SIPDIS the Act stipulates that suspects should be arrested only if there is "reasonable grounds" for suspicion of guilt, although the law does not define "reasonable grounds." The Act allows members of the security forces to "search any house, shop, warehouse, transport vehicle or any other place belonging to any person whomsoever at any time" or "any person or goods that the person is carrying with him" as long as "notice"--not necessarily a warrant--is given (whether before, during or after the search is not stipulated). Suspects arrested under the Act must be produced before the court within 60 days (although they can be held in preventive detention for 90 days, as long as the place of detention has the basic amenities of light, water, sufficient air, etc.). The ordinance, on the other hand, places no limit upon the time before a suspect's first court appearance, and allows the period of preventive detention to be extended for an additional 90 days. For the most part, provisions of the Act provide greater safeguards for the rights of the accused, Ghimire emphasized. Perhaps the most significant difference between the Act and ordinance is that the Act, according to Law Secretary Udaya Nepali Shrestha, does not abridge basic civil liberties, such as freedom of press and freedom of assembly, and the right to pursue judicial remedy. Sindhu Nath Pyakurel, Chairman of the Nepal Bar Association, echoed the Secretary's interpretation, adding his view that imposition of a state of emergency is not necessary to enforce the provisions of the Act. -------------- THE PM DOES -------------- ¶5. (C) At some point, Prime Minister Sher Bahadur Deuba seems to have shared the view that the emergency ordinance had been made largely redundant by passage of the Act. Upon his May 15 return from his headline-grabbing visits to the U.S. and UK, he was quoted by local reporters as asserting the emergency--due to expire a mere ten days later--"isn't necessary to combat terrorism." Within a week, however, and after extensive discussions with the security chiefs (and, some believe, the Palace),Deuba reversed his public position radically, and was pushing, against the apparent opposition of most MPs in his party, for a six-month extension of the emergency. Deuba subsequently asked the King to dissolve Parliament and call fresh elections (Ref A). Although Deuba confided to the Ambassador that his primary motive in moving against Parliament was to avert a no-confidence motion (Ref A),the PM's May 24 public address to the nation focused on extension of the emergency--and the danger that would befall the nation in its absence--as his most important reason. He told the public he wanted to extend the emergency to "keep morale high and continue the successes achieved by the security forces against the terrorists and continue the campaign against terrorism." Continuing the emergency was important "for the protection of democratic system and the strengtheninng of national security to defeat the terrorists." The ruling party's failure to support extension, on the other hand, "boosted up the morale of the terrorists"; those opposed to extension "were working for the fulfillment of the terrorists' wishes." ¶6. (C) In spite of the importance the PM publicly claimed to attach to extension of the emergency, he has never discussed in detail the perceived deficiencies of the Act in prosecuting the insurgency. One former member of the PM's Cabinet, while acknowledging the PM's legitimate fear of a no-confidence motion, commented that the PM should have been more willing to give the Act "a chance" to determine its effectiveness in countering the insurgency before insisting on the emergency. Deuba's about-face, his former colleague observed, puts him in the paradoxical position of arguing on the one hand that conditions in the country are so dangerous that extension of the state of emergency is necessary while positing on the other that conditions in the country are safe enough to hold national elections. Other observers have criticized the PM for calling national elections at the same time that the Government opted to postpone local body elections--due to have been held in May--for security reasons. -------------- THE ARMY'S ARGUMENT -------------- ¶7. (C) Given the compressed sequence of consultations following Deuba's return to Nepal in May, some observers have speculated that the military influenced the PM to insist on the emergency. (Comment: Another scenario is that the PM, convinced that his political rivals would persist in trying to unseat him, chose extension of the state of emergency--an issue on which he was certain of support from the Army and the Palace--as a pretext to stage a showdown. End comment.) Maj. Gen. Rukmungud Katuwal told the Ambassador that RNA leadership had asked for extension, after exchanging frank views with Deuba on the security situation. Many other members of the military leadership have told us they favor extension of the state of emergency for a variety of reasons. Chief of General Staff Lt. Gen. Pyar Jung Thapa told the Ambassador he favors retaining the emergency because it is useful in partly controlling the press and politicians and because he believes the Act weakens security forces' ability to perform search and seizure. He said he would support greater flexibility in the state of emergency, making it applicable selectively on a district-by-district basis. According to Col. Deepak Gurung, head of the RNA's Office of Public Affairs, imposition of the emergency makes the Army's task easier by prohibiting meetings of more than four persons, eliminating the possibility of strikes, allowing extended periods of detention and permitting searches without warrants. (As noted in Para 4 above, the Act grants extensive powers of search to security forces.) A civilian Ministry of Defense spokesman, speaking off the record, agreed that the Act and the emergency contain nearly identical provisions, and speculated that the RNA wants continuation of the emergency as a way of suppressing unfavorable coverage in the press. Law Under Secretary Ghimire commented that, absent the emergency, the security forces "would have a lot of trouble" from people pressing cases in court against illegal detention, false arrest, etc. -------------- COMMENT -------------- ¶8. (C) While the Prime Minister moved to dissolve Parliament to avoid a vote of no confidence, he has gone on record as citing the need for an extended state of emergency as his principal motivation. This emphasis has resulted, not surprisingly, in heightened scrutiny of the emergency's protracted restictions on civil rights. The simultaneous suspension of civil rights and dissolution of Parliament--complicated by the uncertain prospect of elections occurring on schedule--put Nepal's already fragile democratic institutions under significant strain. MALINOWSKI