COVID 19 Crisis Management Ordinance
Khimlal Devkota Senior Advocate
Start:
The Crisis Management Ordinance was issued to manage the crisis of COVID 19. The ordinance, published in Additional Gazette 16 of the Nepal Gazette on June 20, 2078 BS, was issued on a regular basis, when the policy program was to be discussed in the Parliament, but in an emergency, on the eve of the dissolution of the Parliament. Basically, this ordinance seems to have been issued to manage the crisis posed by COVID 19. This article has been prepared for the purpose of examining various aspects of this ordinance.
Subject of the Ordinance:
In the rule of law, the rule should be according to the law. The law is passed by the people’s elected body, the parliament. The government will use this facility of the ordinance only if it is necessary to do something immediately when the parliamentary session is not in session. Running a country through an ordinance is not a good sign for democracy. In any case, after so many comments, let’s discuss about this ordinance. In the preamble of the ordinance, it has been stated that there is an urgent need to make legal arrangements for the integrated, systematic operation of prevention, control, diagnosis and treatment of COVID 19 and as there is no session of the federal parliament at present. The preamble seems to have sought to justify the ordinance. Similarly, one-fourth of this ordinance, collected in paragraphs 6 and 42, has been miscellaneous and legal provision has been made in that part to facilitate the procurement process. In addition to this, provision of health emergency, closure or control, appointment of Chief District Officer as response officer, Central Hospital, Board of Directors chaired by the Prime Minister, Management Committee exercising subordinate but full powers, operation of security agencies and strict punishment system are the main themes of this ordinance. .
Emergency declaration:
It is clear that the main purpose of this ordinance is to declare an emergency so that it cannot be equated with COVID 19 in general. In case of emergency, any health institution should be asked to diagnose and treat the infected, control and operate the health institution as per the need, employ health workers at any time, use any materials including government, public, privately owned houses, land structures, vehicles, transportation, transportation. The ordinance empowers the government to close down or take control of all government and public and private transactions, including regular activities. The ordinance intends to use the emergency as an emergency by giving additional powers to the Chief District Officer as a response officer for the purpose of controlling and shutting down emergency and public and private activities. He has been appointed as the Chief Executive Officer of the well-known CCMC and has been given the authority to mobilize the army. He has also been appointed as the Executive Officer of COVID 19 Central Hospital. The ordinance also clarifies that all these efforts will be limited to the control of COVID 19.
Easy to purchase
Another important aspect of the ordinance is that the ordinance provides for facilitation, expeditiousness, removal of the obligation to complete the regular process and not to raise any legal question in such arbitrary process. For this, the government has given exemption so that there is no need to follow the procedure in the prevailing law for purchasing directly from any government or company. The government has also given the facility to the government to fix the rate as per the specification and rate of the goods. As the prevailing law has made provision for advance payment up to a maximum of 20 percent, this ordinance has now given additional power to the government to make the provision null and void without any collateral to pay the entire amount in advance. Not only this, no purchase master plan or annual purchase plan is required for this purpose. In addition to this, no matter what is written in the prevailing law, it has been made clear that the procurement under this ordinance for the prevention, control, diagnosis and treatment of COVID 19 is not in accordance with the prevailing procurement law.
New structure:
For the purpose of combating COVID 19, a powerful steering committee has been set up under the chairmanship of the Prime Minister comprising ministers of key ministries, Chief Secretary, Chief of Army Staff, members and Chief Member Secretary of the Center. Arrangement has also been made to invite officials and experts of the concerned bodies to the committee. The Board of Directors is to formulate policy and make policy decisions regarding COVID 19. Similarly, the COVID 19 Crisis Management Center has been renovated, leaving the post of Deputy Prime Minister under the chairmanship of the Chief Minister appointed by the Government of Nepal. The ordinance has made it clear that the head of this center will implement the decision of the Board of Directors. Similarly, the concept of a central hospital has been put forward for the purpose of combating Kovid 19 with a one-sided policy and it has also been mentioned that the head of the hospital will be an officer appointed by the Government of Nepal.
Comment on Ordinance:
Fighting Infectious Diseases Nepal’s legal framework is 58 years old. The five-page one-page law issued in the year 2020 BS for the eradication of whiff has remained in force till date. If the government resorted to the same to deal with the first wave, it could not replace the act this time as well. For nearly two decades, the World Health Organization (WHO) has said that Nepal’s legal framework to fight infectious diseases is inadequate and that its request to upgrade that framework has not been met. Since this ordinance is only related to COVID 19 and the ordinance will become inactive with the end of this crisis, there is still a danger that Nepal will fail in its strategy including the legal framework to fight infectious diseases. Even during the first wave, even the parliamentary committees did not mention the need for a new and unified law, but the ordinance could not come up to meet the lack of an unified umbrella act. This shortage will continue. Similarly, if the ordinance is mainly focused on control, detention, mobilization of army and use of force through the Chief District Officer, then the ordinance will not include any criteria of public procurement and will not raise any legal question about procurement. The positive message could not be sent.
Another aspect of the ordinance is related to time limit and period management. This provision does not replace other laws nor does it amend those laws but repeats the application of the prevailing laws. In such a situation, the provision of such a weak ordinance does not seem to solve the issue of time limit, but there is also a danger of creating trouble in the future due to it.
The ordinance seems to focus on crisis management out of fear of punishment. Recalling Nepal’s own experience, it does not seem that the crisis can be solved easily with the help of strict laws, nor has the culture of following the law developed out of fear of punishment. Law enforcement agencies need to pay attention to these and similar cases.
Finally:
It is important for everyone to pay attention to the fact that the proposed ordinance to solve the COVID 19 crisis, based on their own experience of crisis resolution and the standards and measures developed globally, does not create further complications. From the point of view of the rule of law, running the country through an ordinance cannot be considered correct under any circumstances.