NEPAL: SUPREME COURT ISSUES ORDER TO ARMY ON

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