Response to the COVID-19
by emergency law or inappropriate law, a threat to democracy, a case study of
Nepal with Post-legislative scrutiny of Infectious Disease Act,1964.
Khimlal Devkota
Senior Advocate/Member
of Constituent Assembly, Nepal
khimlaldevkota@gmail.com
Abstract:
This paper intends to critically examine whether
democracy has been compromised while containing the COVID-19 coronavirus in
Nepal. The government of Nepal has been trying to control the spread of the
pandemic by invoking the Infectious Disease Act 1964. As empowered by the law,
the Government of Nepal has enforced restrictive measures. Such measures have
undermined democratic values... Such activities focus on the decisions or
decision-making processes as well as the emergency measures themselves and,
therefore, does not limit itself to human rights and democratic norms, values
and principles. But it is different in reality.
The main research question of this study is,
whether democratic practices have been affected while responding to COVID-19 by
unnecessary use of power and enacting emergency laws or using inappropriate
laws in Nepal? This study is not only confined to the piece of legislation but
beyond that, this study is related with the health of the general public. The
study is a value aid in the field of democratization in legislation even in
emergency or pandemic situations. This study also presents a comparative
picture of COVID-containment measures adopted by different countries.
The Qualitative Research Method has been used in the study and has applied
broad literature review with legislative scrutiny. At the same time, the study
is trying to compare with the actions and measures taken by the government of
other parts of the world.
Critical theory has been applied for objective
assessment and recommendations for future.
Subsided rule of law by enacting emergency laws
or implementing outdated and inappropriate laws to contain the spread of the
pandemic is the major finding of the study. The decisions based on either
emergency laws or inappropriate laws are in fact the lack of laws for
legitimizing the monopoly of the executive in the specific context of Nepal.
Therefore democracy has been subsiding and will suffer further.
The study recommends updating the legislation as
per the need of time and comprehensive legislation with compilation of
scattered provisions of the infectious disease and unification of laws with
enacting umbrella act for future to respond to pandemic like COVID-19 without
any compromise of the fundamental norms, values and principles of democracy.
Key words: Legislative scrutiny, emergency
law, democracy, government and infectious disease.
1. Introduction:
Outbreak of COVID-19 was unprecedented challenges to human civilization. Due to
lack of vaccine or proven cure, nations were compelled to save the lives of
people at any cost. Therefore, most of the nation chose their own
ways to fight against the coronavirus. Such measures include enactment
of emergency laws, introduction of new comprehensive laws,
and invoking existing laws. To put this in perspective, Nepal has
chosen to invoke the existing law - Infectious Disease Act 1964- to fight
against the pandemic. Thus, this paper aims to examine the Infectious
Disease Act 1964 and the implications of its enforcement for Nepal’s democracy.
Nepal has taken several policy decisions based
on the law. But the question arises: whether such decisions conform to
the democratic values and norms. Similarly, there is also an equally important
question why Nepal did not choose the option of state of emergency to contain
the spread of the pandemic. Also, one could ask why Nepal did not opt for
introducing a separate comprehensive law that would have given more legal and
policy options to the government in its fight against the pandemic. More
importantly, whether Nepal has upheld fundamental rights of the citizens while
fighting the coronavirus. The findings of the study revealed that the outdated
law used by the government failed to properly impose the lockdown, contact
tracing, relief distribution and control the diseases and facing the charge of
corruption in procurement of medical stuff resulted in poor performance. Civil
rights have not duly protected.
Nepal’s emerging democracy is facing enormous
challenges due to restrictive measures adopted by governments in the name of
fighting COVID-19. Rights have been
curtailed, elections have been canceled or postponed (IFES, 2020). Many
governments are functioning without a proper mandate. Monopoly of the state
agencies will threaten democracy and limit civil rights (Cronert-2020).
Therefore, this study intends to make recommendations to the governments that
any containment policy should uphold civil rights and democracy. The study also
expects to contribute to enhancement of the democratic practices and protection
of civil liberty and will justify that it is a prime duty of the state at any
time and at any cost.
2. Objectives of the Study
The objective of the study is to support
efforts of the government to promote democratic accountability in Nepal even during
its fight against COVID- 19. In furtherance of this objective, review of
relevant laws on COVID- 19 in light of protection and promotion of democracy
research focusing on the functioning Modality of Response to COVID 19 and its
Mechanism within the Federal Governance System in Nepal, in the name of COVID
19 Crisis Management Committee CCMC has conducted. This paper has
following objectives:
-To analyze the legal status and institutional
mechanism and legal arrangements used to contain COVID-19 in Nepal and their
implications for democratic norms and values;
-To identify the challenges in response to the
pandemic in democratic context;
-To explore the practical [democratic] modality
for fighting against pandemic with democratic practices.
-To provide recommendations for comprehensive
law required to enhance democracy.
3. Methodology of the Study
Qualitative Research Method has been used in the study and has applied broad
literature review with legislative scrutiny, measures and action analysis taken
by concerned stakeholders. At the same time, the study intends to
compare actions and measures taken by the government of other parts of the
world.
In order to satisfy the objective of the study, the research was conducted at
the Federal, Provincial and Local Level covering all 7 provinces, to make the
research inclusive in federal context. A qualitative study methodology was
adopted to better understand the underlying reasons and challenges behind the
lack of effective operationalization of Infectious Diseases Act related to
COVID 19 and to develop appropriate recommendations for necessary legal reform
so as to ensure an effective response to the pandemic without compromising
democratic values.
A desk review was
conducted to identify and analyze the existing gaps in the legal provisions
that hinder the effective response of pandemic. The legal review explored the
Constitution of Nepal, legislations, regulations and guidelines of respective
law. In addition, research reports, articles related to COVID-19, national laws
that include provincial and local level policy and policy guidelines and other
relevant reference materials and literature were also examined. .
The study reviewed one federal law and 7
provincial procedures and number of local arrangements. As such, the study
covers the review of all the total laws policies and guidelines related to
COVID-19.
The review identified various legal
provisions concerning the responses to COVID-19 governing structure,
composition of the board, duties of functioning modalities of various types of
services, procedure the review also explored the data on legal regime. In
addition, the review also focused on the legal provisions in relation to
institutional mechanisms to provide services to the COVID-19 victims.
4. Limitation of the Study
The study has considered only one federal law
and others procedures adopted by provincial and local levels, to contain
COVID-19. , officials and civil society in federal parliament at the national
level were consulted randomly. Thus, findings of the study may be limited to
the experiences and perspective of participants of central, provincial and
locals and does not necessarily reflect the totality of 753 municipalities of
Nepal. Furthermore, the study is limited to the study and analysis of the laws,
policies and challenges related to their implementation to contain the spread
of COVID-19 in line with democratic values. A field research would have added
value to this study but it was not possible due to the pandemic. However,
a brief observation as to the impact of pandemic in democracy and response
mechanism is mentioned to allow the space for deeper analysis in the
issue.
5. COVID 19 and World Scenario
COVID-19 has threatened democracies in many
countries including those in central Europe where it is likely to further accelerate the trend towards illiberalism and test
the limits of the European Union’s principles of collective action and burden
sharing in a time of crisis. EU member countries claim that EU must be capable
of the enforcement of shared laws and regulations and respect for the rule of
law and an independent judiciary by all member states should be non-negotiable
and subject to persistent scrutiny in order to uphold democracy across the
bloc.[1]
Democracy is not only a content and process
moreover it is a culture. The culture of the civilized nation has to be
compatible with the civilization and democracy. The American Bar Association
has concluded as following:
"The COVID-19 pandemic has resulted in a
violent upsurge of discriminatory, racist, and xenophobic attacks, both
physical and verbal, against Asian Americans. The situation has been
exacerbated by the President, his administration, and other high profile
individuals, who have insisted on calling COVID-19 the “Chinese virus” “Wuhan
virus,” or “Kung Flu” to radicalize the pandemic. Racial scapegoating is not a
new phenomenon. Chinese Americans were blamed for the bubonic plague, Japanese
Americans were incarcerated by labeling them an “enemy race”, and more
recently Mexicans have been characterized as “rapists” and Muslims as
“terrorists.” This use of race as a tool to divide and divert attention from
shortcomings, together with the disregard of facts and science, has threatened
our democracy, and now threatens our safety."
The Cornell University has organized one talk
program and concluded with following statement,
"In “ Democratic
challenges in the Time of COVID-19: Global Perspectives” Cornell thought
leaders who study democracy in Asia, Africa, Europe, Latin America and the
United States addressed the pandemic’s short- and long-term threats to
democracy."
The Saharan African continent is also facing the same challenges. One of the challenges
will be negative impact on elections which means risks for democracy and
fundamental rights and freedoms in sub-Saharan Africa, with national elections
slated to be held this year and early next year in several countries. The main
challenges will be maintaining democracy, whether elections are postponed or
maintained and recalls the importance to have credible, free, transparent,
peaceful and safe elections.
Commonwealth countries
also seem worried over threat and loss of democratic norms and values. They are
really worried about to retain of democracy with following statement:
"The COVID-19 pandemic has expanded the
reach and power of the state to a degree that is unprecedented in the living
memory of most modern democracies. The consequent loss of rights and freedoms
may well turn out to be necessary. But history teaches a harsh lesson:
sacrificing liberties is a dangerous game with a highly uncertain outcome. An
informed, engaged and questioning citizenry is the best defense we have."
Election is a lifeline of the democracy. However, the COVID-19 pandemic has
triggered a number of exceptional legal responses from the government around
the world as they seek extraordinary measures to manage the threat. While there
are a series of databases which have been established to track these responses
to understand the situation fully, a more nuanced, in-depth expertise is
required, and this requires in country expertise.[2]
Countries across the
world have applied their own modalities to contain the spread of the pandemic some
countries used lockdown by invoking laws whereas lockdowns were not based on
laws. Parliaments worked their own models. Some of them conducted virtual, some
went for hybrid and others chose to close the parliament. Oversight function is
a key tool of democracy in the name of crisis some parliaments ignored it but
some have made special committees and mandated oversight of all governments'
functions. Some parliament chose to enact separate comprehensive law to deal
with the corona crisis, some go for special proposals and others opt for
existing law. Following table-1 will reflect the exact scenario of the world.
The ruling Nepal Communist Party (NCP) which
was elected democratically holds nearly two-thirds majority in the Nepali
Parliament. This makes it even more important that the Government is more
transparent in its decision-making process and is even more accountable to the
Nepalese people and democracy. It is expected from democratically elected
governments that they must protect and promote democratic values in all
of their actions, even while fighting a pandemic.
Table-1
|
S.N. |
What |
Where |
Impact assessment |
|
1 |
Lockdown |
India, china, Singapore, Thailand, UAE, Saudi,
Arab, Italy, Peru, British, New Zealand, Hungary, Poland, Russia, South
Africa, Columbia, Australia, Jordan, Argentina, Belgium, Israel, France,
Malaysia, Morocco, Kenya, Kuwait, Ireland, Norway, Denmark,
Finland, Sweden, Italy, Austria, Spain, Chez republic, Korea, Yukon,
Slovakia, Qatar, North Korea, Maldives, Lithuania, Latvia, Canada and so on
are on the lockdown around the world. Some Most of the American countries haven’t done lockdowns but they have passed
social distance maintenance guidelines. |
Most of the countries invoked lockdown without
law and some of the countries curtailed civil liberties in the name of
lockdown. |
|
2 |
Virtual parliament |
Britain, different committees, Spain, Brazil,
Estonia, Israel, Scotland, New Zealand, Germany, and Ireland, Wales,
Canada, Andorra, Argentina, Brazil, Chile, Crosio, Cuba, Chez republic,
Indonesia, Luxembourg, Maldives, Mongolia, panama, Korea, Moldova, Romania,
Slovenia, Spain, UK, UAE, Venezuela and so on countries has changed their internal
procedure. |
Virtual parliament and hybrid parliament is a
best tool to enhance democracy even in crisis. |
|
3 |
Special Committee |
In New Zealand, the special coronavirus
committee has been formed where as for the investigation of the government’s
work, an opposition committee has been formed. |
This high level of transparency means a high
moral of democracy which contributes to democracy. |
|
4 |
Optimum use of parliament |
The proposal of opposition in Pakistan, for
full use of parliament most of all parliament has its own constitution or
internal procedure which should be changed to fight against the corona and
give effort to make further plans. |
Most of the countries used parliament as a
people's representatives. |
|
5 |
Invoked special law |
Countries like Britain, France, Italy,
Belgium, Netherlands, Brazil, and Sweden enacted laws related to lockdown.
Ireland and Britain have passed the Coronavirus bill, Finance bill and Public
health bill. Andorra has a Pandemic bill, Canada has introduced an Emergency
bill, Denmark came up with a health bill, Guatemala has an Emergency bill, and
Hungary has Coronavirus law. Similarly, countries like Qatar, Maldives,
Indonesia, Timor-Leste have passed different proposals, whereas Norway,
Maldives, New Zealand have passed financial assistance bills, Korea has
passed a supplement budget for 2 times. |
Special laws invoked by democratic countries
mainly facilitate democracy but others are curtailed civil liberty. |
6. Results
6.1. Available
Options for the Nepal Government
The Government of Nepal has various options to
consider to deal with COVID-19 pandemic. The Constitution itself (Article 273)
is enough for the government to declare a state of emergency to fight a
pandemic. Public Health Act 2017 is another available option to fight
COVID-19. Disaster Risk Reduction Management Act 2017 is a third option.
In fact, this was the most appropriate law to invoke to deal with COVID 19 as
the law specifically outlines ways to handle the coronavirus pandemic. Yet the
Government chose the Infectious Diseases Act. It is because the Infectious
Disease Act empowers the government to issue orders as per its
convenience. But the application of the law does not uphold the rule
of law and democratic values. Moreover, the invoked Act was drafted by the
government under the rule of an autocratic monarchy. The law gives sweeping
powers to the government. So the intention of the GON could be questioned
in the context of protection and promotion of democratic norms and values.
The Following table (#2) reflects the reality of
Nepal.
Table-2
|
Law |
Focus |
|
|
The Constitution (2015) |
Nepal’s Constitution has the provision of
emergency accepted by all democratic parties. Under this provision, the Government has power
to declare state of emergency and issue of emergency law. Emergency has to be approved by the parliament
within 15 days by two-thirds majority. |
|
|
Disaster Risk Reduction Management Act 2017 |
The Act was passed in 2017 after the
promulgation of the democratic constitution with consensus. The law has environmental mechanisms at
all levels. Such a mechanism will also have representation from the main opposition
party and representatives from civil society. It has also envisioned a provision of Funds at
all levels of government. Pandemic flu has been defined in the law
besides defining the Natural and man-made disasters. The Act states that fighting against a
pandemic is not only the responsibility of the government, rather of the
state, including the opposition. |
|
|
Public Health Act 2017 |
The law defines the term
"Pandemic flu" |
|
|
Infectious Disease Act 1964 |
The Act limited to Control/isolation of
suspected infectious persons. GON has power to issue necessary orders to
contain the spread of pandemic. Authority has been given to the Chief District
Officer to punish those who violate the orders issued under this law. Nominal punishment is also
caused non implementation of the law A person who violates this Act or
disregards any order issued under this Act shall be liable to punishment of
imprisonment for a term not exceeding One month or a fine not exceeding One
Hundred Rupees or with both. A person who obstructs a
person authorized under this Act with the performance of his/her duties shall
be liable to punishment of imprisonment for a
term
not exceeding Six months or a fine not exceeding Six Hundred Rupees or with
both. |
Note: Government has a number of options though
the government has chosen a very easy option that has resulted into curtailment
of civil liberties during the fight against the pandemic in Nepal.
6.2. Government
Initiatives
The Government of Nepal has invoked the
Infectious Disease Act 1964. Almost all the efforts the government has
undertaken to contain the spread of the pandemic is based on this law. A
glimpse of the government initiatives is provided in the following table-3.
Table-3
|
Invoked Law |
What has done |
Impact in Democracy |
|
|
|
|
|
· High level Coordination Committee ·
Purchase of health
equipment by fast track |
· No provision mandated by law ·
Not allowed by IDA |
|
|
· No special legal provision · No provision in the law · Out of democratic practices ·
Orders contrary to the
federal constitution and laws |
|
|
· Expansion of laboratory ·
Parliamentary
Discussion has done with proposal ·
Government clarification in the
parliament from time to time. · Daily update has been made ·
The standard of
quarantine has been passed and dedicated Hospitals to deal with covid-19 |
· Duty of the government · Democratic exercises by MPs and Govt. respond · Accountability proven by and enhance democracy · Transparency matters · Obligation of the state Duty of the government has done. |
Note: GON did not invoke the existing administrative laws to
mobilize police/chief district officers in conjunction with the IDA. GON has
tried to mobilize the Nepal Army but such a move requires approval from the
President. Informally the president advised the government it is contradictory
to mobilization of the Army without declaration of state of emergency. However,
Nepal’s experience tells that the GON didn't do enough in publicizing its
decisions and helping people better understand its decisions and their
implications. This could be regarded as something contrary to the common practices
in advanced democracies.
Out of 13 actions, 7 are done without
citing a law/legal provision and this goes against democratic norms and values,
and therefore these government actions threaten or undermine democracy. Other
six actions are in line with democratic values and could help strengthen
democracy.
6.3. Oversights by Federal
Parliament
Some of the parliamentarians, mainly from the
main opposition parties, pressed for early suspension of the winter session of
the parliament which the government happily obliged. Even though it was the
opposition MPs who first raised the issue of coronavirus in parliament in
January when the first COVID-19 case was reported in Nepal and the parliament
held a robust debate on the coronavirus at a time when it was largely limited
within China. However, as the virus came to Nepal, and the country went under
an unprecedented lockdown, the parliament failed to conduct its duty of
scrutinizing the Government's actions. The Government prorogued the winter
session of parliament in early April, which prevented MPs from an
opportunity to scrutinize the actions of the government. Many MPs realized that
they had lost the important forum of oversight only when the Government ended the
winter session forcing some MPs to use the media and social media to ask
questions to the Government. When the lockdown entered into the third week,
some of the committees and MPs started to convene their meetings to comply with
the government banned gathering of more than 25 people.
Legislative Management Committee (LMC) organized a series of meetings as part
of its Post Legislative Scrutiny (PLS) inquiry and handed over its own and
other comments, suggestions and feedback it received to the government. The LMC
came in conclusion that the law is outdated and insufficient to deal with COVID
19, therefore there was an urgent need of comprehensive law. GON accepted it
and incorporated it in a policy statement addressed by the President of Nepal
on 15th May 2020. Moreover, the Education and Health
committee of the House of Representatives also instructed the GON on dealing
with COVID 19 on 7th May 2020.
Table-4
|
Provinces |
Initiatives |
Impact in Democracy |
|
Full House, House of Representative
(HOR)/ National Assembly (NA) |
-Discussion and approved proposal -Several discussion and questions answer |
-No proper follow up and no proper address. |
|
House of Representative Education & Health Committee |
-Directives to the concern ministries : -Feb 11 2020, One point instruction has been
given to the ministry to rescue student from China. |
GON had done properly and rescued the student
by chartered flight. |
|
-6 may 2020,two point instruction has given to
the ministry, no any exam and new enrolment of schools and collages |
-Very lately addressed. |
|
|
-14 jun2020, ten point's instructions
including extend test and Health workers and relief packages to needy
people. -25 jun2020, two points instructions increase
budget on Public health, -3 July 2020,eight points instructions
including proper devolution of power and resources to provinces and local
levels Increase PCR test, proper coordination between province and locals, proper management of quarantine -proper treatment. |
-No proper follow up and no proper addressed. |
|
|
National Assembly Legislative Management Committee |
-Increase public health budget -pre-legislative scrutiny |
-Incorporated in policy & program and
addressed in budget |
|
-Use appropriate law -Enact comprehensive law |
-No proper law yet -No comprehensive law |
7. Discussion:
7.1. Fundamentals of Democracy
Any discussion on COVID-19 and legal responses
by the governments leads us to ask questions: are those containment
efforts in line with democracy? Do those efforts threaten democracy? To
answer the questions we need to have confirmed ideas on democracy. The basic
ideas and principles of democracy will be the basic standard of our analysis.
The inter-parliamentary union has adopted a 27-point universal declaration on
democracy in 1997. The points made by inter-parliamentary union that can
be a basic standard of democracy. Democracy is a universally recognized ideal
as well as a goal, which is based on common values shared by peoples throughout
the world community irrespective of cultural, political, social and economic
differences. It is thus a basic right of citizenship to be exercised under
conditions of freedom, equality, transparency and responsibility, with due
respect for the plurality of views, and in the interest of the polity
(Bassiouni & Inter-parliamentary Union, 1998, p. IV).
Fundamentals of democracy are: Citizen
participation, Equality, Political tolerance, Accountability, Transparency,
Regular free and fair elections, Economic freedom, Control of the abuse of power,
Bill of rights, Accepting the results of elections, Human rights, Multi-party
system and Rule of law. Citizen involvement in decision making, system of
representation, rule of law, electoral system-majority rule, some degree of
equality among citizens, some degree of liberty, freedom granted to or retained
by citizens and education are key elements of democracy(Mona,B.2020). The
principal purposes for which the People establish democratic government are the
protection and promotion of their rights, interests, and welfare. Democracy
requires that each individual be free to participate in the political
community’s self-government. Thus political freedom lies at the heart of the
concept of democracy (Margaritatita 2016).
Democracy is a lifestyle of the civilized
society. The civilized society is functioning according to their democratic
norms and values. The norms and values are widely accepted by the people and
society. The democratic norms and values have to be respected at any cost and
at any juncture.
7.2. Different responses
During the time of COVID-19, most of the
countries chose declaration of state of emergency which curtailed the rights of
the people. Some of the countries enacted new laws to facilitate the process
and to fight against COVID-19. Some other countries have enacted new laws
without completion of the process and limiting the civil liberty. Indonesian
example is enough for this case “The
scale and severity of the COVID-19 pandemic clearly rises to the level of a
public health threat that could justify restrictions on certain rights, such as
those that result from the imposition of quarantine or isolation limiting
freedom of movement.[3] The New laws and orders also concentrated power to the
executive branches in absence of the parliament, by upsetting the established
theory of separation of power and checks and balance, other countries invoked
outdated laws to use and misuse of executive power which is also responsible to
limiting civil liberty including disinformation to the public and ultimately
threatened democracy. Some of the countries enacted new laws to respond to the
COVID-19 crisis with the following appropriate process and contents to enhance
democracy.
7.3. Nepal's Position
Nepal falls under the third category as it
invoked Infectious Diseases Act 1964. The law is considered outdated because it
is because the act is 56 years old and unable to define even pandemic forget
about COVID-19. It curtails civil liberties and its application threatens
democracy. The Infectious Disease Act 1964 was introduced some 56
years ago to control Malaria. The legislation has three pages and 5
articles legislation. It gives power to the executive to issue any orders
it wishes in response to any contagious disease the main provisions of the
act are mentioned in the box:
(Infectious-Disease-Act-1964)
|
Preamble:
Whereas, it is expedient to make provisions for the root out or prevention of
any infectious disease which spreads or is likely to spread throughout the
Nepal or any part thereof so that such disease cannot reach to its climax;
Now, therefore, His Majesty King Mahendra Bir Bikram Shah Dev has, on the
advice and with the consent of the National Panchayat, enacted this Act. |
|
|
|
2. Powers
to make special provisions: (1) Where any infectious disease develops or
spreads or is likely to spread on the ............. human beings throughout
the Nepal or any part thereof, Government of Nepal may take necessary action
to root out or prevent that disease and may issue necessary orders applicable
to the general public or a group of any persons. (2) Government of Nepal may
designate any official and confer necessary powers to such official to make
necessary arrangements in order to root out or prevent any infectious disease
that has been developed or spread or is likely to spread on the
...............human beings. (3) Without prejudice to the generality of
sub-section (1) or (2), Government of Nepal may issue necessary orders for
the purpose of conducting examination of any animals, birds being transported
on foot or by any means of conveyance or of any passengers and holding any
.............passengers by the official designated for examination in quarantine
in hospitals or other places where the official is doubtful that such
..............passengers have developed any infectious disease or of
inspecting or controlling the transportation or movement by any means. |
|
3.
Punishment: (1) A person who violates this Act or disregards any order issued
under this Act shall be liable to punishment of imprisonment for a term not
exceeding One month or a fine not exceeding One Hundred Rupees or with both.
(2) A person who obstructs a person authorized under this Act with the
performance of his/her duties shall be liable to punishment of imprisonment
for a term not exceeding Six months or a fine not exceeding Six Hundred
Rupees or with both. |
|
4. Powers
to try and settle cases: The Chief District Officer shall have powers to try
and settle cases on offenses committed under this Act. |
|
5. Saving
of act done in good faith: Where a person authorized under this Act carries
out an act in good faith in the course of performing any of his/her duties,
no lawsuit or any other legal action may be instituted or taken against such
person. |
Nepal did not choose the option of declaration
of emergency and suspend fundamental rights. Which would be more critical and
dangerous for democracy whereas it was also an available option. However, the
government of Nepal ignored to implement the newly enacted Disaster Risk
Reduction and Management Act 2017, which has incorporated pandemic flu with
other natural and manmade disasters.
The Public Health Act 2018 as per the new
constitution covers pandemic flu-like properly. The Government did not invoke
the law. Instead, the Government chose a very outdated and incomplete
legislation to monopolize the actions during the pandemic. Why did the
Government choose to invoke the Infectious Disease Act, and not the Disaster
Risk and Management Act 2017 and/or Public Health Act? It is worth quoting the
Law Secretary who spoke at a LMC programme in April. He said the Government
chose the IDC over DRRAMA because the IDC gave a blank check to the government (that
the GON could do anything it wanted by issuing executive order.
7.4. Invoking the outdated law: threat to
democracy
7.4.1. HLCC & CCMC:
Most of the countries strengthen their existing
institutions rather creating new one to fight against COVID-19, even making new
laws. However Nepal invoked an outdated law on one hand while it created
two new mechanisms, namely the High Level Coordination Committee and COVID-19
Crisis Management Committee. The High Level Coordination Committee (HLCC) has
been formed under the leadership of the deputy prime minister and comprises
selected cabinet ministers such as Health Minister and Finance Minister. The
committee is powerful in a sense that it has full authority. But it
has no legal ground. The Cabinet formed the committee to respond COVID-19
situation but was not recognized by the Infectious Disease Act. Nepal’s entire
response efforts were decided by this committee with no legal basis. Thus
Nepal’s containment efforts made by this committee posed a threat to democracy.
Authoritarian regimes could arise on this ground. Under the High Level
Coordination Committee, the crisis Management Committee has been formed. The
committee has been functioning not as legally authorized institution Legally
established institutions are created by Disaster Risk Reduction Management Act,
Committees from the center to the local levels were sidelined. Several
orders and instructions have been circulated by the HLCC and CCMC.
General public and subnational governments are also compelled to implement
whatever decisions have been made without questioning.
Several writ petitions have been filed in this
regard at the Supreme Court. For instance RDT testing was questioned by the
Supreme Court and ordered to stop it and resume PCR test which is considered
more reliable. The Court ordered the government to let people stranded at the
Nepal-India border due to the closure of the international border to enter into
Nepal after conducting proper testing and facilitating their travel to their
respective destination. In response to public interest litigations. The Supreme
Court also ordered the government to ensure proper testing at quarantine and
isolations, to provide relief to needy people with dignity and proper manners.
As questions were raised over procurement of medical stuff, the government
had to cancel the deal and the army was given the role even to procure
necessary medical supplies. It is because both the cabinet and Nepal Army
are exempted from possible investigation by the country’s anti-corruption body,
Commission for the Investigation of Abuse of Authority.
These are some instances of how democratic
principles were undermined by the Government in its efforts to contain the
spread of the pandemic. There was no reason for the GON to use the
Cabinet framework rather than other appropriate existing decision-making
mechanisms in Nepal. Orders and instructions to all levels of government were
passed without proper law and authority. Such orders and instructions are
direct threats to democracy. For instance, the fund was created in center but
responsibility to handle the cantonment and tracing, testing and treatment has
given to the local and provincial but resources were not properly distributed.
Swab collection from the local levels and sent to the center for lab testing
was a tedious task, management of more than hundred thousand returnees without
budget was a herculean task done by local governments without proper
coordination and devolution of resources and capacities.
The true story behind it is, in case of invoking
the DRRMA the whole responsibility goes to the Ministry of Home affairs but the
Prime Minister wanted to handle the pandemic situation by the DPM who is
considered close to him, then invoked IDA and created HLC and CCMC. Therefore
creating a mechanism not envisioned by any law and invoking the outdated
law were guided by vested interest of the Prime Minister. This decision
did not go with the principles of democracy.
7.4.2. Purchases of Medical Supplies
COVID-19 was an unprecedented situation for all.
No country was prepared to handle such an extraordinary situation. Medical
supplies stocks were not sufficient. Therefore purchases of medical stuff in an
emergency manner could be considered as natural. The Disaster Risk Reduction
Management Act has made the same provision to facilitate the crisis period. The
act clearly says that there is no need to follow the existing law for public procurement.
The government did not choose the option of DRRM ACT. Consequently, the
procurement of medical supplies ran into controversy. Pandemic health
emergencies provided the chance to purchase medical supplies in huge amounts
again by the same HLCC and CCMC. Questions were raised over transparency and
accountability of these procurements in the parliament and on the streets by
the general public. The Public Account Committee of the parliament has taken up
the issue for investigation. Complaints have also been registered at the
anti-corruption body seeking an investigation and punishment to those officials
involved in the alleged irregularities. When democracy is about good
governance, transparency and openness, the alleged irregularities and the
decisions made by the Government pose threat to democracy.
7.4.3. Unnecessary involvement of Army:
Pandemic is not a warlike event where arms and
ammunition and army personnel will be in the forefront. Civilian government is
sufficient to handle the pandemic situation by using and mobilizing all forces
of the country. The Army is an important organ of the country, but it doesn't
mean that they should be kept in a decision-making body. Most of the democratic
countries rightly mobilized the army as per their law. Some countries missed
mobilizing the army intentionally or not. They made mistakes, Nepal is also one
said by an independent observer. Democratic regime means it is always in favor
of civilian control of the army. However in the name of COVID crisis security
forces are included in high levels committees in decision-making rather than
implementation. Pandemic control, purchase of medical stuff, security of
quarantines and public movements everywhere giving a lead role to the Army is
against the principle of civilian government and spirit of civilian control of
security forces. Use of the army by government decision to counter COVID-19
itself is not an anti-democratic one. But intentionally invoking an improper
law, the intent to connect with the Defense minister who is close to the
PM and PM wanted to deal with the COVID-19 case under the leadership of the
Deputy Prime Minister rather than the Home Minister. With this case the
Government exposed and tried to skip from the jurisdiction of the CIAA from
investigation of corruption charges is the main, which has proven by the
government activities. The fact is that The DPM who headed the HLCC is also
Defense Minister and crucially, any action of the Army cannot be investigated
by the CIAA unlike over the government departments such as the Health Ministry
which is legally authorized to purchase medical stuff.
7.4.4. Lockdown declaration
Lockdown is a control of free movement of the
general public. Any curtailment of fundamental freedom should be based on law.
Most of the democratic countries enacted new laws related to lockdown, ban on
vehicle movements. The Nepal government declared lockdown on the recommendation
of the HLCC and CCMC and banned vehicular movement and airplanes including all
public business and people's daily life without any law. The Government has
invoked the Essentials Service Act, which ensures smooth running of public
vehicles. But the lockdown order did not conform to the provisions of this law.
These two actions taken by the government of Nepal are quite contradictory to
each other. Free movement is a fundamental right of the citizens granted
by the constitution of Nepal. But the government prohibited it in the name of
controlling COVID-19 without introducing new laws or complying the existing
laws. Lockdown has been enforced by more than 100 countries. But countries have
introduced new laws or resorted to a state of emergency to contain the spread
of the pandemic. Both measures could be questioned from the perspective of
democracy. In Nepal’s context, the GON imposed lockdown without any legal
basis. The Infectious Disease Act has provisions to only control and isolate
suspicious infected persons, besides that the law gives no authority to extend
their rights. Any order can be issued only to control and isolate suspicious
infected persons. The IDA has a very limited mandate. Specific law can be
used only within its specific mandate and jurisdiction at the same time
specific law cannot be generalized as per the jurisprudence of law. It is
argued that the spirit of the law is that any such orders should only be
limited to suspect infected people and not the general population. And that
such a short law that lacks any substantial detail cannot be reasonably used to
curtail movement of the whole society. Government offices and public and
private offices have been forcefully closed. The Government has ignored the several
court orders. In regards to court cases, dates, hearings and appeals even
limitations the Supreme Court full bench settled by declaring time zero by
court order. Even though it is also not a law rather than emergency
arrangements. The Government has shown its reluctance to enact a comprehensive
new law to address the legal vacuum and legalize the actions of the government
to contain the spread of the pandemic and abide rule of law.
7.4.5. Reluctance to devolution
Nepal is a newly declared federal country.
Nepali federalism is based on cooperation, coordination and coexistence
principle. Power devolution is the core subject of our federalism. All the
power divided from the constitution and state power uses by federal provincial
and local levels. During the time of the pandemic the federal government was
not interested in devolving the power and resources to the provincial and local
levels of government. Similarly federal units also hesitated to assert their
power as per the constitution. It is also against the existing constitution and
fundamentally against the principle of democracy. Actions against the
constitution in the name of COVID crisis are ultimately threats to democracy.
The IDC does talk about special provisions for the provincial government but
there is no instance of any Provincial Government invoking the IDC. Similarly,
there is no any instance of the federal government visibly trying to block the
provincial governments or local governments from exercising their power too. No
any attempt by the provincial governments to assert their right under the IDC.
It is also a problem of unitary mindset and highhandedness of the center in the
fight against COVID-19. It is also against the spirit of the democratic
constitution.
7.4.6. Accountability is in question
Accountability and transparency are the core tenets
of democracy. HLCC functioned as well as the Army being used to procure stuff
that civilian agencies were not allowed to do so. Democratic government always
falls under the scrutiny of the parliament. Each and every concern has to be
approved by the parliament and in an emergency the government has to report to
the [what?] at any cost and time. The plenary of the Federal Parliament and
different thematic committees have given invaluable instructions to the
government on dated 11th Feb 2020 to 3rd July 2020. The Government is reluctant to conduct virtual
meetings. The Legislative Management Committee of National Assembly has clearly
instructed to the government to enact comprehensive law to fight against
COVID-19. The Government and its agencies ignored the parliamentary instruction
and failed to own accountability. The non-implementation of parliamentary
instructions is considered as defiance of the parliament, something that could
be regarded as a direct threat to democracy. Due to the long period of
lockdown, all the businesses were shut down. The lockdown affected the lives of
people from every walk of life. Everyone expected relief packages from the
government. But the government seemed indifferent to the plights of the
general public. Health workers are in the forefront in the fight against the
pandemic. But there is no incentive for the health workers by the government.
It is yet another instance showing how the government lacked
accountability. In this challenging time, alleged financial irregularities
over the procurement of medical supplies were brought out by the media. The
lack of transparency and accountability while dealing with the pandemic posed
direct threat to democracy.
7.4.7. Reluctance to comply with international
obligations
Infectious disease and pandemic is not new to
the health sectors. The international community, and the WHO conclude that the
existing "Infectious Disease Act, 1964" is not adequate to deal
with the pandemic like the coronavirus. World Health Organization has been
asking since a long period of time to complete preparations and to ensure to
comply with your national and international commitment. The WHO general
assembly including all member states has approved and issued the International
Health Regulations (IHR) (2005) provided a legal framework for ensuring global
health security through a means to prevent and provide a public health response
to the international spread of diseases without interfering with international
traffic and trade. The Infectious Diseases Act 1964, however, does not comply
with all requirements of IHR (2005). The government response to the
international forum is "The country has already drafted new legislation in
order to comply with all IHR (2005) requirements. This document is yet to be finalized
before being placed in the Parliament for approval and adoption. Submission to
the Parliament for approval and adoption is a priority"(WHO, 2010). It was
an appropriate time to fulfill our needs and comply with international
commitment too. But the government again set aside the urgent need of the
country and international commitment at a time. It is also a threat of
democracy. National and international commitment to comply and fulfill their
commitment to enhance democracy is topmost priorities expectations of the
democratic world. Unlike it if the government is functioning then each and
every action of the government will threaten democracy. IDA is outdated law
which is not an unknown issue neither for the international community nor for
the GON. But time and again skipping and ignoring is not tolerated forever for
the cost of democracy.
8. Conclusion:
COVID-19 is an infectious disease that has swept
across the world and affected millions of people. As of today (2nd
August 2020) the number of infected in the world is 18,025,877and 688,962 lives
have already been lost in Nepal, 20,086 people are infected by the
pandemic and 56 people have died. The magnitude of the effects of the virus is unprecedented
and unexpected. Containment efforts in different countries exhibit three major
trends: 1) declaration of state of emergency, 2) enactment of new comprehensive
laws, and 3) enforcement of existing laws. Declaration of a state of
emergency definitely curtailed civil liberty, mostly in developing countries,
it seems democratic countries are cautious of democratic rights while enacting
new laws. But other countries have learned to curtail civil liberties in the
name of fighting the pandemic. Countries like Nepal are reluctant to enact
comprehensive law to combat the pandemic and are inclined to invoke existing
laws. Due to lack of completeness of such laws, monopoly of the government
actions has been legitimized. The anti-COVID-19 decisions and actions taken by
the government of Nepal are not backed by the law. More importantly, even such
decisions and actions have been questioned on ground of good governance and
accountability. This obviously is not good for democracy.
Therefore, I draw the following conclusions from
the discussion above:
1.
Mature democracies went for enactment of new comprehensive laws,
did not resort to emergencies and invoke existing incomplete laws. They seem to
be upholding democratic norms and values of democracy and thus contributing to
enhancement of democracy.
2.
Countries, which might be young democracies mostly opted for
declaration of state of emergency and invoked emergency laws. Fighting against
COVID-19 with the help of emergency and emergency definitely limits civil
liberty and undermines democracy.
3. Countries hesitate to
enact new laws and declarations of state of emergency but choose existing
outdated and laws. In the name of gaps in the laws, monopolizing the state
mechanism is also limiting the civil liberties. Nepal’s case illustrates this
conclusion.
Finally, the real test of the government and
democracy will be in crisis. If it is a realistic proverb every government and
democracies are in real test. Every democratic government has to be proven they
are accountable to the people, transparent to the society which is the real
facilitator of the democracy. Absence of accountability and transparency even
during crisis situations like those governments and their actions are always
considered to be a threat to democracy.
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