How a pandemic law would have helped fight the virus effectively and strengthened federalismNepal has resorted to the six-decade-old Infectious Disease Act, which does not talk about people’s rights, but empowers bureaucrats to punish citizens.
After the government lifted the four-months-lockdown imposed to contain the spread of the coronavirus on July 21, the country suddenly started to see a rapid surge in the number of Covid-19 cases. In its confused response to the pandemic, the government instructed District Administration Offices to “take measures” by assessing the situation in their respective regions. Technically, the government invoked the age-old and outdated Infectious Disease Act, formulated almost six decades ago.
Just as district administrators were issuing prohibitory orders in various districts, in the first week of August, the Supreme Court directed the government to draft an integrated law on pandemic by evaluating the existing legislation.
The court order came in response to a petition filed by advocates Roshani Poudyal and Saroj Krishna Ghimire, who had demanded that the court issue an order of mandamus to the authorities to enact pandemic laws, arguing that existing laws on infectious diseases are insufficient and inadequate to address the situation brought about by the coronavirus pandemic.
The petitioners had also demanded that the court order the government authorities to be sensitive about the families of those who died of Covid-19, protect the Covid-19 patients’ safety and ensure mechanisms that are inclusive and gender-sensitive.
In its order, the court said that an integrated law is necessary to combat the pandemic and to address its negative effects, to reduce hatred and create a cordial environment for the affected people and recovery plan in the society.
Legal experts say a lack of integrated law on the pandemic not only weakens the response to the disease but also puts human rights in peril.
The four-month-long lockdown imposed by the government in a bid to fight the pandemic put tens of thousands of people’s right to life and livelihoods, individual liberty and right to food and shelter in suspension.
The current prohibitory orders in various districts, including Kathmandu, Lalitpur and Bhaktapur, imposed under the Panchayat-era Infectious Disease Act 1964 falls short of making the government responsible for guaranteeing food and shelter to the underprivileged.
“A comprehensive law on the pandemic would not only mean granting authorities to sub-national governments but also would mean a clearly laid out system to address the concerns related to human rights in the pandemic situation,” said Chandra Kanta Gyawali, a senior advocate who specialises in constitutional law. “The top-down approach that has been in practice in Nepal since the country was under a unitary system continues even today despite the country adopting a federal system.”
The federal government has gathered enough criticism for empowering chief district officers in the fight against the pandemic, ignoring provincial and local governments that have been in place since the 2017 elections.
“There clearly seems to be reluctance on the part of the federal government and politicians in Kathmandu to work on the comprehensive pandemic law,” said Gyawali. “The centralised mindset is so deeply entrenched that they are afraid to devolve power to sub-national governments.”
Any democratic state in the fight against the pandemic puts people’s welfare at the centre-stage, according to experts. But the current Act that the state has invoked does not provision people’s welfare.
As the virus spread across the globe, countries like the United Kingdom, Germany and New Zealand were quick to pass their pandemic laws, which were aimed to fight the virus while keeping the rights to life, food and shelter and welfare of the people, especially the underprivileged, at the centre.
In the full text of its judgment which was released on Friday, the Supreme Court said the existing laws are insufficient to address multiple issues surrounding the Covid-19 pandemic, different authorities of the government have been setting different standards and issuing different orders.
The court has stressed proportional inclusion in the government’s mechanisms to fight infectious diseases, coordination among the three tiers of government, right to privacy of the infected, ending domestic violence, regulation on reproductive rights and employment opportunities for women who have lost their jobs during the pandemic, among others.
"Though it is the prerogative of the legislature to draft laws, if there is a demand for necessary laws, such calls should be duly addressed,” reads the full texts.
Even lawmakers, including those from the ruling Nepal Communist Party, admit that the authorities in Kathmandu are by and large reluctant to draft some urgent and necessary laws.
“Why can't the government which does not hesitate to introduce unnecessary ordinances issue an ordinance to bring laws on the pandemic,” said Rekha Sharma, a ruling party lawmaker and former minister. “It has now become clear that politicians in Kathmandu still function with the centralised mindset and are not keen on empowering the local and the provincial governments.”
The Infectious Disease Act-1964 does not give powers to the provincial governments.
The Act was revised two years ago to make it compatible with the new constitution including some rights of provincial governments. But Clause 2 (a), the same clause diminishes their role saying, if the federal government takes any decision related to the disease, provincial governments need to abide by it.
The current prohibitory orders were issued as per Clause 2 of the Act which says that the federal government can give power to any authority to take steps to check the spread of infectious disease, leaving the provincial and local governments without any say.
According to Krishna Prasad Sapkota, former chairman of the National Association of Rural Municipalities in Nepal, a comprehensive law with a clear division of roles of all three tiers of government would have helped accelerate the fight against Covid-19 and uphold people's rights that are at risk due to the disease.
“It has been clear by now that local levels are the ones who actually work— they are making quarantine and isolation facilities and holding centres, and at places, even hospitals, but there are no clear legal provisions that define their roles,” Sapkota told the Post.
Lawmakers say defining clear roles for sub-national governments through an integrated law on the pandemic also would have been in line with the spirit of federalism.
About three months ago, the Legislative Management Committee of the Upper House had discussed the need of an overarching pandemic law.
“How can laws drafted in the times of kings be compatible today?’ said Parshuram Meghi Gurung, chair of the Legislative Management Committee of the Upper House. “We had about three months ago directed the government to bring an integrated law to deal with a pandemic. But there has been no progress.”