By Jivesh Jha*
Ever since the deadly coronavirus commenced the journey from the Hubei province of China in December 2019, a global war is being waged against a pandemic that has changed the world order. Thousands of people have already lost their lives and the death tally is surging up by the hour. The biggest catastrophe of the contemporary world has neither spared the world’s mightiest economy and military powers nor the developing and developed states. It has devastated the world without any distinction. This unprecedented disaster called for the activation of lockdown measures and quarantine laws. It was imperative for countries that observe the rule of law to implement the epidemic and disaster management laws to stem the transmission of the coronavirus. Nepal was no exception to it. The government of Nepal executed the Infectious Disease Act, 2020 BS (1964) to impose a uniform lockdown across the country.
Although, the Himalayan republic witnesses fair corpus of laws to curtail the outbreak of a pandemic, they have obvious gaps. It appears these laws are neither up to date nor comprehensive. Our law aims to punish the outliers but fails to guarantee the fundamental rights (relating to life, liberty, food, shelter, or others) to the underprivileged section of society.
In this respect, the K P Sharma Oli-led government has clarified that an outlier, i.e., the person who wilfully disobeys the lockdown, would be punished with imprisonment of either description for a term which shall not be more than one month; and/or also liable to fine of NPR 100 (Section 3, Infectious Disease Act, 1964). All the 77 District Magistrates have been delegated the responsibility of implementing the decision taken in line with the Infectious Disease Act, 1964 (Section 4). The Chief District Officers (i.e., District Magistrates) can implement the local administration Act, if required, to enforce the government’s decision.
Moreover, Section 104 of Country Criminal Code, 2074 (BS) envisages for up to 10 years’ jail sentence and a fine of up to NPR 100,000 against a person who intentionally spreads the infectious disease. The provision also allows the judicial department to inflict jail sentence of up to five years and a fine of up to Rs 50,000 on a careless person and up to three years of imprisonment and a fine of up to NPR 30,000 on negligent ones who indulge in spreading infectious diseases.
No obligation to the poor
The Infectious Disease Act, which was enacted by then Nepal King Mahendra, nowhere prescribes for welfare functions to be carried out by the state for the welfare of the vulnerable citizens amid health emergency-like situations. The regal law does not necessarily oblige the government of Nepal to ensure the arrangement of food or compensation or financial assistance to the daily wage earners, migrant labourers, informal sectors or poor and needy ones who would not have suffered otherwise.
The 1964 Act, which has as many as five sections, in its Section 2 provides ample power on the government of Nepal to apply all necessary measures to curtail the outbreaks. It allows authorized government officials to issue orders, whichever required, to control or abate the outbreak of infections. The officials are permitted to check or inspect any person, pedestrian, goods, or vehicles if they suspect the person or goods may be carrying infections.
This way, the legislation confers blanket power on the state to curtail the outbreak of infection but it does not necessarily explain the duties of the government towards its vulnerable citizens. Nor do the laws explicitly and authoritatively recognize the rights of citizens during the outbreak of any disease. Also, the epidemic laws don’t oblige the state to adopt scientific measures required to curb the spread of infection.
Nevertheless, the observance of lockdown, social distancing, or quarantine measures is certainly in the interest of people. Eventually, people started observing preventive measures to curtail the transmission of deadly viruses. This way, the national population started believing that the non-observance of the guidelines issued by the World Health Organization (WHO) or the department concerned about the state could contribute to the exponential growth of the virus and finally harm the society at large.
Duguit, a French jurist of the Sociological School of Jurisprudence, believes that if the state acts in a way that promotes social solidarity it is entitled to be upheld and encouraged. The move of the state to impose a coronavirus lockdown certainly promotes social solidarity, for the decree of the government aims to defeat the deadly virus. So, lockdown is encouraged and people wholeheartedly favoured its extensions.
Arguably, the existing law of the land fails to direct the state to set up a common forum comprising of bacteriologists, virologists, biomedical scientists, and among other healthcare professionals to conduct research on antibodies of pandemics. In fact, it would be an uphill task for the state to combat outbreaks unless there is a specialized research centre to study the causes, symptoms, prevention, and cure/treatment of the diseases.
In the UK, the Coronavirus Act, 2020 obliges the state to provide compensation to the victims of COVID-19. The newly enacted special law succeeds to strike a balance between the rights and duties of the State during the COVID-19 outbreak. It has a provision that seeks to register health workers, volunteers, or other persons or organizations engaged in serving the people and society. Regrettably enough, we lack such welcome provisions in our part of the world. It is advisable for the governments – of both Nepal and possibly India – to take a leaf from the UK Coronavirus Act, 2020 which was enacted for defeating COVID-19.
The current epidemic law may fall short on punishing an outlier who commits theft of swabs/samples collected to test COVID-19.
The poor and underprivileged section of society suffers the most with the loss of wages, unemployment, and lack of access to welfare policies of the state. It’s imperative to ensure the portability of benefits, such as the provision of food and relief materials to the needy ones through the public distribution system.
The State should adopt a long-term strategy to attract the greater number of workforce from the informal sector that would ensure them social security. As the workforce in the informal sector does not have safety nets, a drop in their income due to lockdown, disaster or health emergency-like situations can push them into poverty.
The probability of the emergence of many new viruses cannot be ruled out as the world is yet to curb deforestation and climate change. Viruses will stalk humanity unless and until we develop a robust strategy against environmental degradation. Infectious diseases can bring about both biological and social consequences. It would be disastrous to ignore one at the cost of others.
Nepal needs to augment medical education with more healthcare professionals and standard medical facilities. The landlocked state also needs to give a push to medical research. Research is not only needed in the field of allopathy but also in the field of disaster laws. There should be a comprehensive code to deal with all issues connected with the pandemic.
Also, there should be robust research in the field of ayurveda, homeopathy and traditional knowledge to expedite a fight against contagious diseases. Together, the three can prepare us for the challenges of the days to come. The government could achieve wonders if it succeeds to ensure the equal growth of allopathy and ayurvedic medicines. No one can turn a blind eye to the vital role of ayurvedic medicines in enhancing immunity.
Nepal’s epidemic law regime would have strengthened the federal spirit had the legislation incorporated provisions allowing the states to adopt plans and policies at their discretion, not at the sweet will of the Centre. It seems the State is heading towards quasi-federalism or federalism with strong centralizing tendency even after the abolition of monarchy, a unitary system of governance.
Nepal’s political parties – irrespective of their ideology and party line – should stand together to devise a uniform and updated law and policy to accelerate a fight against disasters that know no boundaries. After all, a pandemic cannot be battled with outdated and non-comprehensive legislation in hand.
*About the author: Jivesh Jha is Judicial Officer, Janakpur High Court (Birgunj Bench), Nepal. The views expressed are personal. He can be contacted at [email protected]
Source: This article was published by South Asia Monitor