Jivesh Jha
(https://english.lokaantar.com/news/detail/14633/)
Of late, the rulings of the courts in Nepal could be regarded as the most important pronouncements in the country’s constitutional jurisprudence. They have enhanced the scope of right to life with dignity using international human rights law and a bunch of clear and binding directions to the appropriate governments to compensate or support the persons affected due to the Coronavirus.
Still, a few rulings alone will not be enough to address the complexities associated with the governance which has, at times, failed to guard the rights of the subjects living under the constitution. However, the implementation of the rulings of the courts will certainly be a step ahead in right direction in practical realization of the right to life and liberty embodied under Article 16 of the Constitution of Nepal. Article 144 of the Constitution authorizes the High Courts to pass orders to enforce fundamental rights.
In this context, in a petition--Advocate Sudhir Kumar Karna v. Office of the Chief Minister and Council of Ministers, Province-2--, the Birgunj High Court on Friday (July 31) issued a big innovative ruling in order to step forward in humanising the administration of pandemic justice by asking the state instruments to expedite welfare functions and respect fundamental rights of every person.
In this respect, the Birgunj High Court ordered Narayani Sub-regional Hospital to resume the Out Patients Department (OPD) and normal services at the hospital so as to ensure medical treatment to all. “The decision to shut other services and OPD in Narayani Sub-metropolitan Hospital for other patients to focus on emergency services and those infected by the COVID-19 has caused an adverse impact on peoples’ right to healthcare,” held the Single Bench of Judge Dilliraj Acharya.
The bench was of the view that the hospital shall coordinate with provincial and central governments for the arrangement of necessary resources, if so required, to provide medical treatment to all. The people’s right to easy access of healthcare has been compromised with the closure of all other services, except that of emergency treatment.
Undoubtedly, people’s right to healthcare ought to be protected and promoted in a country that observes rule of law and international human rights, argued learned advocate Sudhir Kumar Karna.Appearing as a custodian of fundamental rights, the High Court then went on to held that the right to decent burial commensurate with the dignity of a person which is recognized and protected as a legal right under Section 37 of the Country Civil Code, 2074 BS. The learned judge Acharya observed, "It's the collective responsibility and accountability of the authorities concerned to ensure that an individual who dies during this period of crisis because of Coronavirus infection receives facilities s/he would have otherwise been entitled to receive."
The bench further held that the government agencies concerned are under an obligation to assure that the funeral rites of those succumbing to COVID-19 are protected and that the last rites should be in compliance with cultural tradition of the Coronavirus victim.
As dignity in death is universally recognized as a human right, the body of a COVID-19 patient can either be buried or cremated in consideration of cultural tradition or the belief of the pandemic victim.
The court directed the Social Development Ministry of Province-2 to ensure arrangement of electric crematoriums or other designated locations for the final rituals— burial or cremation.
It is disappointing to see that the Coronavirus pandemic has brought not only health and economic crisis but also a crisis of religious and cultural belief in the final journey of persons, who become victim of this contagion, argued learned advocate Sudhir Kumar Karna during the proceeding.
The war against the Coronavirus pandemic cannot be battled unless the instrumentalities of the state, including that of enforcement agencies, gear up with comprehensive plans and directives.
The war against the Coronavirus pandemic cannot be battled unless the instrumentalities of the state, including that of enforcement agencies, gear up with comprehensive plans and directives. “The District Administration Office (DAO), Parsa and District Police Office, Parsa shall endorse a directive to impose fine on anyone caught not wearing a mask outside their homes, disobeying social distancing and other measures required to combat the COVID-19 outbreak,” held the court.
As there is fear of community spread of Coronavirus in Parsa (Birgunj) and adjoining districts, increased testing capacity and intelligent data-driven decisions could act as the mitigation strategies. The court was of the view that at least one house, one representative swab collection and testing should be done effectively in close coordination with the provincial government, Crisis Management Centre, Parsa and Birgunj Metropolitan.
At a time when the COVID-19 cases started soaring up by the hour, the DAO, Parsa has imposed indefinite curfew in Birgunj Metropolitan City effective from July 25. However, the DAO, Parsa is yet to issue any guidelines as to the timing in which shops, including ration shops dealing with food, groceries, fruits or vegetables, could be made available at the disposal of the people, the bench observed. The court directed the DAO, Parsa to bring a directive as to the timing in which curfew would be eased for the shops providing essential services.
As the media outlets could play a creative and constructive role in fight against the global pandemic, the bench, in its order, was of the opinion that the Birgunj Metropolitan City should make people aware from the preventive measures required to be taken to win a war against the Coronavirus. For this, they could use audio-visual information, documentaries, pamphlets or messages through mikes for effective dissemination of information in society at large.
Most importantly, if anybody, despite all precautions, becomes COVID-19 positive, then it's not their fault. In such situation of grief and pain, the patients and their family members deserve support and cooperation from the society and the government. “No COVID-19 patients (in isolation centres) shall be discriminated or humiliated. Nor would s/he be discharged unless s/he is found COVID-19 Negative upon successful recovery,” further held the court.
Above all this, the entry of people from India through proxy border points could increase the risk of spread of the deadly virus. The border control should be made stricter and all the security apparatuses should step up their vigilance, held the court.
At this backdrop, it can be argued that the concept of judicial review is a sacrosanct principle embodied under the constitution which gives a spacious room for the judicial department to act freely for maintaining constitutionalism in the state. It has been hailed as the basic structure of the constitution (L.Chandra Kumar v. Union of India AIR 1997 SC). In fact, the doctrine is the most potent weapon in the hands of the judiciary for quickening the pulse of rule of law.
Not only the High Courts, Supreme Court of Nepal too appeared as the protector of fundamental rights and issued plethora of guidelines in number of writ petitions to accelerate pandemic justice.
In a groundbreaking verdict, the apex court in the case of Gajendra Thakur and Ors v Office of the Prime Minister and Council of Ministers and Ors on July 30 directed the landlords to neither ask the tenants vacate the premises nor seek rent immediately for the period of the COVID-19 lockdown.
The highest court of appeal clarified that an aggrieved person can approach his respective ward office of the local bodies with a complaint at the instance of non-compliance of the July 30 order, meaning thereby, the local bodies’ can take action against the arbitrary and unlawful action of landlords instantly demanding rent from tenants for the period of COVID-19 lockdown.
Likewise, the Supreme Court on May 31 held that the government is under an obligation to provide essential medicines as well as masks, sanitizers and among other required materials free of cost to the needy people by virtue of a mandatory legal arrangement provisioned under Public Health Service Act, 2075 BS (2018). The writ petition was filed by advocate Dr Punya Prasad Khatiwada.
Image credit: chronicleofsocialchange.org
This way, the SC has clarified that free PCR Test for COVID-19 at the cost of the state is fundamental right of a person kept in quarantine. After all, this requirement is implicit in the requirement of a due process (just, fair and reasonable) procedure prescribed by Article 16 of the constitution.
More so, the apex court on April 23, in a writ petition filed by advocate Ajay Shankar Jha and others, directed the state to ensure special care and protection to citizens during the Coronavirus pandemic. The court wrote, “No government officials or persons holding public office shall endeavour to harm the rights, interests and dignity of the persons.”
These instances prove that there is an increasing trend of judicial creativity (not amounting to judicial overreach) and public interest litigation (PIL). The developing trends as to and in regards to PIL has unfolded landscapes for interpreting law in the light of existing social needs. Of late, PIL has been used as a potent weapon to spearhead social justice. In the landmark case of Indira Sawhney v. Union of India (AIR 1993), Justice P.B. Sawant observed: The Constitution being essentially a political document has to be interpreted to meet the felt necessities of time.
The judicial department during COVID-19 outbreak succeed to advance the notion of judicial review, for the courts have adopted utilitarian approach while interpreting the laws of the land.
The writer is a Judicial Officer with Birgunj High Court and author of “Socio-legal Impacts of COVID-19: Comparative Critique of Laws in India and Nepal” (2020)]
Published on 2 August 2020
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