PRO-PALACE SUPREME COURT APPOINTMENTS

C O N F I D E N T I A L KATHMANDU 002939

SIPDIS

SIPDIS

DEPT FOR SA/INS

E.O. 12958: DECL: 12/28/2015
TAGS: PGOV PREL NP
SUBJECT: PRO-PALACE SUPREME COURT APPOINTMENTS

REF: A. KATHMANDU 2654


B. KATHMANDU 2649

C. KATHMANDU 2885

Classified By: ADCM Robert Hugins. Reasons 1.4 (b/d).

Summary
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1. (C) On December 28, the King appointed four pro-Palace
judges to the Supreme Court, including former Attorney
General Pawan Kumar Ojha who resigned his post on December 25
to accept the Supreme Court nomination. Supreme Court judges
must retire at age 65, but there were no new vacancies or
expected retirements, so the new appointments were in
addition to the twenty current judges, and were appointed to
serve a fixed term in an ad-hoc capacity. The Nepal Bar
Association (NBA) strongly opposed the appointment of judges
loyal to the Palace and current government and warned that
they would not accept such people as judges. Newspaper
editorials supported the NBA's call for judicial
independence, urging the government to appoint judges who
could "defend the supremacy of the Constitution and uphold
the dignity of an independent judiciary." The appointments
came at a time when the Supreme Court continued to issue stay
orders on government actions, such as the order issued on
December 26 staying implementation of the government's NGO
Code of Conduct. End Summary.

Attorney General Ojha Resigns
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2. (C) On December 25, the King accepted the resignation of
Attorney General Pawan Kumar Ojha and appointed senior
advocate Laxmi Bahadur Nirala as the new Attorney General.
Nirala was viewed as a royalist because he argued on behalf
of the government before the Supreme Court on June 2,
supporting the constitutional legality of the establishment
of the Royal Commission on Corruption Control (RCCC) and last
year was chief of the civic committee formed to welcome the
King to Janakpur. However, Yubaraj Ghimire, Kathmandu School
of Law, told Emboff that Nirala was a well respected lawyer,
and "a good choice."

Ojha Nominated As Ad-Hoc Supreme Court Appointee
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3. (C) Shortly after his resignation, the Judicial Council
recommended Ojha and three other pro-palace people to the
King for appointment as Supreme Court ad-hoc judges. The
four new ad-hoc justices, Ojha, Bipulendra Chakravarti, Tahir
Ali Ansari, and Rajendra Prasad Koirala, were sworn in on
December 28. A December 27 Kathmandu Post front page article
reported that the Judicial Council had rejected the names of
two of the appointees in the past, but the Minister of Law
and Justice urged their inclusion this time. The article
noted that Ojha, as the Attorney General, had defended the
King's actions, including the controversial RCCC, and quoted
anonymous sources who said that "efforts were underway to
appoint lawyers who defended the RCCC at the Supreme Court as
judges at appellate courts." A bureaucrat at the Judicial
Council explained to Emboff that Article 93 of the
constitution provided for the Chief Justice to chair a
Judicial Council, composed of the Minister of Law and
Justice, the two senior Supreme Court justices, and an
eminent legal personality, to suggest names to the King for
appointment to the Supreme Court. Supreme Court Joint
Registrar Durga Prasad Dawadi told Emboff that the
constitution provided for fourteen permanent Supreme Court
Judges in addition to the Chief Justice. If needed, other
Supreme Court judges could be added on an ad-hoc basis, for a
fixed term, usually two years, to handle an increasing number
of cases. He noted that while Supreme Court judges must
retire at age 65, there were no new vacancies or expected
retirements, so the new appointments were ad-hoc additions to
the previous 20 Supreme Court judges, bringing the number of
present judges to 24.

Bar Association Opposes Pro-Palace Appointments
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4. (C) The NBA issued a press release on December 26,
strongly opposing the Judicial Council's preparations to
appoint judges loyal to the Palace and current government.
"We will not accept as a judge someone who wants to curtail
the fundamental rights of people as guaranteed by the
constitution and who does not recognize the fundamental
supremacy of the judiciary," said the NBA statement. NBA
General Secretary Madhav Banskota said that the NBA had
suggested the names of five senior advocates at the request
of the Chief Justice. Noting that none of NBA's suggested
names appeared on the Judicial Council recommendation list,
Banskota alleged that the Chief Justice was "trying to
appoint such unfit persons even after our criticism."

Newspaper Editorials Call for Judicial Independence
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5. (U) Newspaper editorials in vernacular and English papers
called for judicial independence. The December 28 Kathmandu
Post editorial entitled "Protect Judiciary" said "the
government should appoint Supreme Court justices on the basis
of merit and not on the basis of political affiliation." It
warned, "if the government neglects the concern shown by the
lawyers and general public, it will definitely make things
worse." It concluded, "the Post urges the government to
appoint those who can defend the supremacy of the
Constitution and uphold the dignity of an independent
judiciary." Similarly, the December 28 Himalayan Times
editorial said, "the impending announcement of the
appointment of four judges to the Supreme Court includes
people who are perceived to bear prejudice against the 1990
Constitution and to be supporters of the widely criticized
royal steps of October 4, 2002 and February 1, 2005." It
noted that "nobody who is seen to be too close to the palace
or the political parties or to any vested interests should be
thought fit to become a judge." It concluded, "the current
appointments would hardly do credit to the already eroding
public image of the apex court."

Supreme Court Stays NGO Code
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6. (U) The appointment of new ad-hoc judges comes as the
Supreme Court continues to issue stay orders on controversial
government actions. On December 26, the Supreme Court
ordered the government not to enforce the controversial NGO
Code of Conduct until the Court received written replies from
defendants in the case. This ruling followed Supreme Court
orders staying government action against the media (ref A),
and promoting the rights of women and children (ref B and C).


Comment
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7. (C) The King appears displeased with the independence of
the judiciary. Appointing pro-monarchy judges to Nepal's
highest court is yet another sign that he is determined to
follow his own path and timeline to try to restore Nepal's
political stability and thwart the Maoist insurgency.
MILLARD