Abstract:
This paper intends to critically examine whether democracy has been compromised while containing the COVID-19 coronavirus in Nepal. The political leadership 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 political leadership and the Government of Nepal has enforced restrictive measures. Such measures have undermined democratic values. Such activities focus on leadership’s decisions or their 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Subsided rule of law by enacting emergency laws or implementing outdated and inappropriate laws to contain the spread of the pandemic is the major finding of the study.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 leadership 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: Political Leadership, 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, leadership 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, Nepali political leadership 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.
Nepali Government and political leadership have 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 as well as political leadership 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 and political leadership 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 political leadership and 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 and democratic leadership.
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 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.
Political leadership, Decision making process and 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 political leadership of 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.
The political leadership of 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.”
For political leadership, election is a lifeline of the democracy. However, the COVID-19 pandemic has triggered a number of exceptional legal responses from the political leadership 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.
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 then 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 and political leadership 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 leadership 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 and political leadership 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
Infectious Disease Act 1964
• Declaration of lockdown
• Without law, IDA is only allowed to GON to control and isolate suspicious infected people but no lockdown.
• High level Coordination Committee
• Purchase of health equipment by fast track • No provision mandated by law
• Not allowed by IDA
• Relief distribution standard
• Activated Essential service Act
• Parliament session has closed due to COVID-19.
• COVID-19 Fund Created and Government has issued different orders • 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 last 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. 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 57 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 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 and political leadership 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 with efficient political leadership 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 mistake; 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 was 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 and political leadership 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 around the world. 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 are 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, huge number of infected and precious lives have already been lost. 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. The political leadership misused the events to continuation of their authoritarian decisions one after another including dissolution of the house of representative which is entirely against the fundamentals of democracy. It is well challenged to the political leadership and revealed serious leadership crisis.
Finally, the real test of the leadership, government and democracy will be in crisis. If it is a realistic proverb every political leadership, government and democracies are in real test. Every-one 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.
9. Selected References:
Axel, C. (April 28, 2020) Democracy, State Capacity, and COVID-19 Related School Closures, Department of Government, Uppsala University Retrieved from; https://preprints.apsanet.org/engage/apsa/article-details/5ea8501b68bfcc00122e96ac
Bassiouni, M. C., & Inter-parliamentary Union (Eds.). (1998). Democracy: Its principles and achievement. Inter-parliamentary Union.
CEPPS, (2020), Strengthening Democracy through partnership Mitigating the Impact of COVID 19 through Democracy Human rights and Governance(DRG) Assistance
Democracy Resource Center (June 2, 2020), Management of Nepali Migrants Returning from India during the Lockdown.
Government of Nepal, COVID 19 Coordination and management Committee, Quarantine standard, 2020, Singh durbar Kathmandu.
Government of Nepal, COVID 19 Coordination and management Committee, Relief distribution standard, 2020, Singh durbar Kathmandu.
Government of Nepal, Council of Ministers, Essentials goods and services supply order, 2020, Singh durbar Kathmandu. .
Government of Nepal, Council of Ministers, Travel restriction order, 2020, Singh durbar Kathmandu.
Hilde Holsten (2020) How much are we willing to sacrifice to protect ourselves against COVID-19? How do we battle the virus while minimizing the consequences? , University of Oslo. Retrieved from; https://partner.sciencenorway.no/crisis-epidemic-politics/the-politics-behind-the-covid-19-responses/1662531
International Foundation for Electoral System: Elections Held and Mitigating Measures Taken during COVID-19 – As of May 27, 2020, retrieved from: https://www.ifes.org
International Foundation for Electoral System (2020) COVID 19 and Corruption: Key risks for Democratic Institutions. Retrieved from; https://www.ifes.org/news/covid-19-corruption-key-risks-democratic-institutions.
Infectious Disease Act (1964), Government of Nepal, Ministry of Law and Justice, Law Book Management Committee, Kathmandu, Nepal
International foundation for electoral system (July 31, 2020) Elections Postponed Due to COVID-19 – As of July 31, 2020.
Retrieved from; https://www.google.com/search?q=Elections_postponed_due_to_covid-19.pdf.+(n.d.).&oq=Elections_postponed_due_to_covid-19.pdf.+(n.d.).&aqs=chrome..69i57.1103j0j4&sourceid=chrome&ie=UTF-8
International IDEA. (2020) COVID 19 and Democracy Retrieved from; https://www.idea.int/our-work/what-we-do/covid-19-and-democracy
Ottavio Marzocchi (2020), Impact of COVID 19 Measures on Democracy, the Rules of law and the Fundamental Rights in the EU Policy Department for Citizens’ Rights and Constitutional Affairs, European Think Tank for parliament. Retrieved from; https://www.europarl.europa.eu/thinktank/en/document.html?reference=IPOL_BRI(2020)651343
Solidar foundation (2020), the lockdown is no excuse to bypass democracy, Briefing Note 2020 retrieved from, https://reliefweb.int/report/world/briefing-note-civic-space-lockdown-no-excuse-bypass-democracy
United Cities and Local Governments (2020) COVID-19 AFTERMATH Decalogue for the post COVID-19 era an opportunity to take responsibility towards future generations. Retrieved for: https://www.uclg.org.
USAID (April 2020), covid-19: democracy, human rights, and governance issues and potential USAID responses. Retrieved from; https://www.usaid.gov/democracy/documents/covid-19-democracy-human-rights-and-governance-issues-and-potential-usaid-responses
WHO, Regional Office for South East Asia. (2010) Implementation of International Health Regulation 2005, Report of the third regional Meeting of National IHR, focal points Bangladesh Dhaka.
