NEPAL: JUDICIAL POLITICS, POLITICIZED JUDICIARY

C O N F I D E N T I A L SECTION 01 OF 02 KATHMANDU 000864 SIPDIS USAID FOR Z. SUDA E.O. 12958: DECL: 09/15/2019 TAGS: PGOV PHUM EAID KDEM NP SUBJECT: NEPAL: JUDICIAL POLITICS, POLITICIZED JUDICIARY REF: KATHMANDU 813 Classified By: Charge d' Affaires, a.i., Jeffrey A. Moon. Reasons 1.4 ( b/d). ¶1. (C) Summary: Key judicial leaders in Nepal are deeply concerned about Maoist-supported constitutional proposals on the judiciary, which would empower parliament to appoint and remove judges, and interpret the constitution. The Supreme Court Chief Justice and others are actively lobbying the Constituent Assembly members against the plan, and planting sympathetic stories in the media. If the Maoist proposal becomes part of the final constitution, it would be a blow to judicial independence and Nepal's long-term democratic development. End Summary. ¶2. (SBU) The report draws on Charge's and USAID Director's September 11 meeting with Chief Justice of the Supreme Court Min Bahadur Rayamajhee and Supreme Court Registrar Ram Krishna Timalsena, as well as P/E Chief's September 14 meeting with Judicial Counsel Secretariat Joint-Secretary Nahakul Subedi. Constitutional Proposal Pinging Alarm Bells -------------- ¶3. (C) Chief Justice Rayamajhee and Registrar Timalsena expressed deep reservations about the Maoist-supported Constituent Assembly (CA) committee report on the judiciary. Under the proposal - tabled in the full CA on September 13 - Parliament would have the power to appoint and fire judges, as well as "interpret" the constitution. Timalsena called the proposal a violation of "core democratic values" and "separation of powers." He urged the international community to support the "accepted principle" of judicial independence. ¶4. (SBU) Behind the Maoist proposal is a belief that the Nepali judiciary has been heavily dominated by men from the upper castes (Brahmin/Chhetri),the Judicial Council's Subedi observed. (Note: Under the current system, the largely-independent Judicial Council, not parliament, picks and disciplines judges. End note.) The Maoists argue that only the parliament - as the "people's representatives" - has the legitimacy to make judicial appointments. Subedi defended the current system, arguing that the pool of qualified judicial appointments in Nepal is quite small making it difficult to identify strong women candidates or candidates from traditionally-disadvantaged ethnic or caste groups. He noted that the latest judicial appointments included one Dalit ("untouchable"),several women, and "six or seven" Madhesi. ¶5. (C) According to Subedi, the Maoists successfully pushed their proposal through the constitutional committee by cobbling together votes from the various Madhesi parties, who were sympathetic to the diversity argument and annoyed with the Supreme Court's recent decision on the Vice President's oath. (Note: Vice President Jha, who is originally from Nepal's Terai region, took his oath of office in the linga franca of the Terai, Hindi, on July 23, 2008. After numerous legal challenges, the Supreme Court ruled on August 28 that Jha is required to take the oath in the Nepali language, which he has refused to do (reftel). End note.) Fighting Back -------------- ¶6. (C) The Chief Justice has been actively lobbying the CA to preserve the principle of judicial independence in the new constitution. He invited a group of key CA members to his chambers to meet with senior Supreme Court judges. The Judicial Council's Subedi has separately given confidential background papers to allies in the CA and met with the committee regularly. The Chief Justice and Registrar also have been providing "background briefings" to the press - highly unusual for the Nepali judiciary. Nearly all opinion pieces in the mainstream Nepali press have criticized the KATHMANDU 00000864 002 OF 002 Maoist constitutional proposal. Other Worries -------------- ¶7. (SBU) When asked about the constitutional federalism debate, the Chief Justice said he was concerned about proposals that would allow municipal courts to apply "local law" in a unified federal system. While individuals could appeal these cases to district court, the jurisdictional lines and administration of justice could become difficult and confusing. The Chief Justice also highlighted enforcement of judges as a major challenge for the Nepali legal system and expressed hope that the recent creation of a judicial enforcement directorate would address the problem. Appreciation for U.S. Support -------------- ¶8. (SBU) The Chief Justice and Registrar Timalsena expressed their deep appreciated for the support of USAID, particularly the case management program. In part because of the USAID support, the case backlog has dropped from 22,000 to 10,900. USAID also funded a pilot project on mediation, which the Ministry of Justice is now implementing across the country through its own funds. ¶9. (C) Comment: Post agrees that the Maoist proposal on the judiciary raises serious concerns about Nepal's democratic future. If implemented, judges would be beholden to politicians for their jobs, further compromising an already-weak institution. While the Maoist concern about the lack of diversity on the courts is legitimate, there are other ways to address that issue without undermining judicial independence. We are encouraged by the vocal criticism of the Maoist proposal in the press, and remain hopeful that the key political parties, including the Nepali Congress and UML, will stand firm on this issue in the final constitutional negotiations. End Comment. MOON