NO STAY ON MEDIA ORDINANCE

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 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