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
Objective

 -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.
Methodology

 Qualitative Research Method

 A desk review
 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.  
Limitation

 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
8 Characteristics around the world

 Lockdown with/without laws

 Online (virtual) Parliament meetings
 Special committee for oversight
 Optimum use of parliament
 Enactment of special law
 National solidarity
 Investment on public health
 Changes in world’s order
3 Impacts

 Democracy
 Economy
 World Order
Options for Nepal

 Constitutional Provisions –declaration of statement of emergency

 Public Health Law –declaration of state of health emergency
 Disaster risk reduction management Law-participation of all
 Infectious disease act 1964
 Nepal’s Experiences
Provinces Initiatives 
Full House, House of -Discussion and approved proposal 
Representative  (HOR)/ -Several discussion and questions answer 
National Assembly (NA)
House of -Directives to the concern ministries :
Representative  -Feb 11 2020, One point instruction has been given to the ministry to rescue student from
Education & Health China.
Committee   
-6 may 2020,two point instruction has given to the ministry, no any exam and new enrolment
of schools and collages 
-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.  
National Assembly -Increase public health budget  
Legislative Management -pre-legislative scrutiny 
Committee -Use appropriate law  
-Enact comprehensive law
Findings:
Invoking Outdated Law: Threat to Democracy
 1. HLCC & CCMC: without legal basis.
 2. Purchases of Medical Supplies: Controversy.
 3. Unnecessary involvement of Army: Threat to civilian control and democracy.
 4. Lockdown declaration: without legal basis.
 5. Reluctance to devolution: lack of resources for provincial and local bodies.
 6. Accountability is in question: lack of transparency.
 7. Reluctance to comply with international obligations: Non-complince of WHO IHL.
 Conclusion

 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.
 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.
 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. 
 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. 
 The End
Thank you for your kind
attention