The Death Penalty in South Asia

Nepal, Bhutan, and Sri Lanka have effectively abolished capital punishment. The rest of South Asia hasn’t.

 By Jivesh Jha

May 18, 2017 (The Diplomat)

“Many that live deserve death. And some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgment.” So wrote English author JRR Tolkein in his popular Lord of the Rings series. India’s Mahatma Gandhi put it this way: “An eye for an eye makes the whole world blind.”

Although much of the world has come around to a similar view — that one killing cannot be avenged with another — most South Asian states maintain a fondness for capital punishment, with Nepal, Bhutan and Sri Lanka as the exceptions.

The constitutions of Nepal (Article 16), and Bhutan (Article 7-18) both prohibit the death penalty. Interestingly, though the death penalty has a legal foundation in Sri Lanka there have been no executions in the Buddhist state since 1976. Legal practice shows that the state has moved a step toward abolition, following the global trend.

Conversely, the South Asian states of Afghanistan, Bangladesh, India, Maldives, and Pakistan all firmly believe that the death penalty can deter people with evil intent. In this context, the Indian legal system fails to buy into the words of Gandhi, who is considered to be Bapu (founding father) of the world’s largest democracy.\

The Indian Penal Code (IPC)-1860 (amended in 2013) prescribes the death penalty for as many as 11 offenses, including waging war against the government, abetting mutiny by a member of the armed forces, acid attack, murder, rape, and criminal conspiracy. Similar legal frameworks for the death penalty (save for acid attack) have been provisioned under the Bangladesh Penal Code.

In Pakistan, capital punishment is provisioned for no less than 27 different offenses, to include blasphemy, sexual intercourse outside of marriage, outraging the modesty of a woman, and smuggling drugs.

In Afghanistan, various crimes — murder, apostasy, homosexuality, rape, terrorism, drug trafficking, adultery, treason, or desertion — are punishable by death based on Islamic jurisprudence. The Maldivian legal position on the death penalty is similar to Afghanistan’s.

Generally, an accused merits the fate of legal death in India, Pakistan, Bangladesh, Maldives, and Afghanistan when the crimes committed meet the threshold of “most serious crimes.” Blasphemy, adultery, or drug trafficking do not necessarily meet the threshold of “most serious crimes” but are still punishable by death in Pakistan and many other Islamic countries, including Maldives and Afghanistan.

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India’s Supreme Court, in the landmark case of Bachan Singh vs.State of Punjab (1980), forwarded the doctrine of “rarest of rare,” arguing that life imprisonment is the rule while a death sentence is the exception. The top court held that the death penalty could be imposed “when [society’s] collective conscience is so shocked that it will expect the holders of the judicial power center to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty.”

Even though there is no statutory definition of “rarest of the rare” cases, its widely believed that the pre-planned, brutal, cold-blooded, and sordid nature of a crime, without giving any chance to the victim, is taken into consideration to decide whether a particular case falls within the purview of “rarest of the rare.” India’s Supreme Court recently used this metric to award the death penalty to the accused in a high-profile 2012 gang-rape case.

The “collective conscience” metric for awarding the death penalty is problematic. If a judge feels that the collective conscience is so shocked that it’s desirable to inflict the death penalty on the accused, then can he or she hear the case entirely on merit? Will the judge ensure a fair trial and presume the accused innocent until proven guilty?

Additionally, in the 21st century world we live in — fully equipped with 24-hour TV and social media on tap — outrage can be manufactured and reality can be distorted.

“The collective conscience doctrine is not a very clear-cut concept and its in want of a healthy debate in India,” opines Dr. Nidhi Saxena, a faculty member in international law at Sikkim Central University, India. She adds that the judicial pronouncements may not address the collective conscience, as public participation was not ensured in the entire decision making process.

Beyond the specific issues with the “collective conscience” rule, many believe that the taking of a life by the judiciary is simply unjust and inhuman and its continued practice is a stain on a society standing on humanitarian values. Beyond this, the death penalty regime is a clear violation Article 6 (right to life) of the International Covenant on Civil and Political Rights (ICCPR) and Article 3 of the Universal Declaration of Human Rights. And, interestingly, India, Pakistan, Maldives, and Afghanistan are signatories to these conventions.

Although the task remains unfulfilled, the second optional protocol to ICCPR was introduced in 1991 with the aim of abolishing of the death penalty globally. However, the instrument only succeeded in imposing an obligation on the international community to disallow capital punishment in the case of minors and pregnant women.

Despite this, the Maldivian parliament recently enacted a law that confirms death penalty can be applied to a minor who commits an intentional murder or any serious crime.

A UN resolution that called for a global moratorium on the death penalty was passed by the General Assembly on December 19, 2016. It was supported by 117 states; 40 voted against it and 31 abstained.

Moreover, the International Criminal Court, which is situated in The Hague, also slams the death penalty and favors life imprisonment even for crimes against humanity, such as genocide.

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Even as the global trend roots for abolition, the states imposing the death penalty justify their slated position. They appeal to each state’s sovereign rights to determine its own law (as enshrined under Article 2 Paragraph 7 of the UN Charter, i.e., the principle of non-intervention in the domestic affairs of a state). They also argue that the death penalty is exercised in rare cases and insist their legal systems guarantee rule of law and ample procedural safeguards for a fair and speedy trial.

However, “abolition is now entrenched in human rights discourse and it cannot be limited to national criminal jurisprudence. If one makes the ‘sovereignty defense’ then its simply a frivolous justification,” says Saxena.

Ultimately, the “death penalty is not a strong enough deterrent; rather effective laws and order are,” Saxena argues. Though a section of the population in India favors the death penalty for crimes involving women and children or terrorism,  she believes“the move towards a more enlightened approach (i.e., abolition) could be initiated in Parliament.”

The criminal jurisprudence of most of South Asia on death penalty falls short of international obligations and its high time to rethink their stand on the death penalty.

As per the reports of Amnesty International, around 140 countries — more than two-third of the world — have abolished the death penalty in law or practice. The South Asian states, except Nepal, Bhutan, and Sri Lanka, are out of step with this global trend.

The Diplomat 

Available at: https://thediplomat.com/2017/05/the-death-penalty-in-south-asia/

Nepal Leads South Asia in Women’s Political Representation

Nepal’s Constitution ensures 33 percent of parliamentary seats are reserved for women 

Jivesh Jha 

November 11, 2016

“In politics, if you want anything said ask a man, if you want anything done ask a woman.”

—Margaret Thatcher

Although inequalities and special treatment for the privileged persist as a widespread and divisive issue in South Asian countries, the constitutions of the member states of the South Asia Association for Regional Cooperation (SAARC) include a host of measures to abolish all forms of gender disparities, to create mechanisms of enforcement, and to enact policy to combat discrimination against the vulnerable groups of societies in government spheres, the workplace, and education.

Various legislative acts formally abolish inequalities on the grounds of sex, prohibit gender discrimination, and expand the system of reservations for women. In addition, the South Asian constitutions have enacted a number of provisions in response to pressure from disadvantaged groups, increasing protections and expanding reservations systems. As a result, small but significant gains have been made; a slight percentage of women have been benefited from educational opportunities, become wealthier, and risen to high government positions. Yet for many, George Orwell’s words — all are equal but some are more equal than others — are still relevant.

The newly enforced constitution of Nepal was heavily criticized for not addressing the concerns of Madhesis and not allowing women to confer citizenship onto their children. However, the charter does include positive elements for the mainstreaming of women in all spheres, making it more progressive than the constitutions of Nepal’s regional neighbors.

The cornerstones are set by two arrangements in particular. First, the constitution from the very initial stage ensures the rights of women as a fundamental right (FR) under Article 38. This is already a step ahead of many other constitutions, including those in South Asia.

Second, Nepal reserves for women 33 percent of positions in all of Nepal’s state institutions, including the legislature, under Article 84(8). 

This is a major breakthrough on an arrangement other South Asian states, including India, have also been discussing.

India has been considering adopting a similar constitutional amendment since 1996. The 18-year journey of the Women’s Reservation Bill, which is still pending in the Lok Sabha (Lower House), was marked by high drama during parliamentary discussions last year. India still has a long way to go to ensure the reservation of one-third of seats for women in legislative bodies due to the lackadaisical attitude of the major parties represented in the parliament.

However, 33 percent of seats are reserved for women in local bodies as per 73rd and 74th constitutional amendments adopted in 1993. Relevant articles provide that one-third of seats shall be reserved for women in gram panchayats (village government organizations), cooperative societies, and municipalities. Over the years, 16 states out of 29 have increased the quota for women from 33 percent to 50 percent. The current government says that enhancing the quotas for women in local bodies and Panchayat Raj bodies are high on its priority list for the winter session of parliament, beginning in November this year. The ministers represented in Narendra Modi’s cabinet have expressed that, though some states have already provided a 50 percent reservation for women in local bodies, the increased quota will be implemented uniformly throughout the country through a constitutional amendment.

Meanwhile, Pakistan, despite claims that the maximum efforts would be made to uplift women, reserves just 17 percent and 15 percent of parliamentary seats for women in the Lower House and Senate, respectively. Similarly, Bangladesh ensures 14 percent of seats for women in parliament.

Afghanistan, after Nepal, reserves the highest number of seats for women in parliament. The 2004 Afghan constitution, under Article 84, ensures that the state shall ensure 27 percent of parliamentary berths in the lower house are held by women, along with 50 percent of seats in the House of Elders.

Bhutan, the smallest country in the region, believes that such a quota system is undemocratic. The 2008 constitution simply provides for a 25-member National Council under Article 11, while Article 12 says there shall be a 55-member National Assembly, with no quota for any section of society. Maldives and Sri Lanka stands on similar footing with Bhutan in rejecting a quota system. These countries believe such quotas would go against constitutional provisions against discrimination on the basis of gender.

Women’s rights activists argue that gender discrimination affects all of society, not just women. And the cause of women cannot be served unless women from underprivileged categories are allowed to raise their concerns in policymaking apparatuses and the parliament, the highest law-making authority of any sovereign country.

The dreams of Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) would not come true unless and until we succeed to end all forms of violence perpetuated on women and ensure the fair representation of women at private, non-private, and governmental spheres. Nepal’s Constitution, which reserves the highest percentage of seats for women of any country in South Asia, is a step in the right direction.

Published in: The Diplomat 

https://thediplomat.com/2016/11/nepal-leads-south-asia-in-womens-political-representation/

Nepal’s democracy deserves development and prosperity

 

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Jivesh Jha - 24 April, 2021

 @NepalLiveToday

• Read Time 4 min.

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Mere enactment of constitutions does not serve the cause of democracy unless the provisions therein are implemented in both letter and spirit.

Benjamin Franklin said of America, it’s a “republic if you can keep it.” The remark stresses on the need of enforcement more than enactment. A democracy is easy to declare but difficult to uphold in letter and spirit.

As we are celebrating the Loktantra Diwas today, commemorating the victory of people against autocratic monarchy in April, 2006, we should make a solemn commitment to behave and act in accordance with the constitution which unites the population of over 30 million. The constitution of Nepal, the precursor of new Nepali renaissance, entered into force on September 20, 2015 laying down the new political structure to address the needs and aspirations of the citizens who are united for the purpose of resisting external intervention, upholding rule of law and preserving sovereignty and integrity.

Democratic transformation
The 2015 constitution transformed Nepal from a constitutional monarchy into a republican state, a federal democracy from a unitary system of governance, and a secular structure from a Hindu character. Unlike the constitution of the United States and Australia, which provide only for the federal government, the Constitution of Nepal provides for federal, provincial and local (Village Councils and Municipalities) governments. Special provisions have been made for advancement of weaker sections of society. The preamble itself has set the goal to that effect.

All the governmental organs and institutions derive their powers from the constitution itself. Like India, the constitution of Nepal mandates that the powers of the state must be exercised within the bounds of the constitution. Our constitution established dual polity much like in India but unlike in the United States. In the US, federal and state governments do not seem hierarchical in nature. In Nepal, provincial governments (state governments in case of India) seem to be subordinates of the federal governments as the latter often have a final say in the matters with far-reaching consequences.

Thus Nepali federation departs from the constitutional norms of the United States but has a lot in common with the framework of many democratic constitutions, including India’s. The Indian constitution provisions that Parliament is composed of the President, House of the People and Upper House. But, in the US and Nepal, the President is not the integral part of Parliament. The parliamentary composition of Nepal is more comparable to the US than India. In both India and Nepal, the President is the final authority to certify bills into laws.

Positive indicators
Nepal stood at 112th place out of 180 countries on the Press Freedom Index for 2020 released by Paris-based Reporters Sans Frontiers. In South Asia, Afghanistan stood at 122nd, Sri Lanka 127th, India 142nd, Pakistan 145th and Bangladesh 151st positions. In the 2021 World Press Freedom Index, Nepal’s situation has further improved with the ranking of 106 out of 180 countries. This shows Nepal stands at a better pedestal than India, Pakistan, Sri Lanka, Bangladesh and Afghanistan.

Likewise, in the 2020 Human Development Index (HDI), unveiled by the United Nations Development Program (UNDP), Nepal ranked 142nd out of 189 countries with HDI value of 0.602 for 2019. This takes Nepal into the medium human development category.

Constitutionally, Nepal’s is the first constitution in South Asia to include an explicit mandate of one-third representation of women in the legislative spectrum. India has been considering similar provisions since 1996. Also, it’s the foremost fundamental document in Asia—and only the third in world along with South Africa and Ecuador—to expressly guarantee the rights of transgender people.

According to Inter-parliamentary Union Open Data, Nepal’s 275-member Lower House is a home to 90 women parliamentarians, while India’s 543-member Lower House welcomes only 78 women lawmakers. Nepal’s Lower House succeeds to ensure almost 33 percent of women representation, while the percentage of representation for the same in India stands at 14.4 percent. In the Upper House, the number of women lawmakers stands at 22 out of 58, which makes around 38 percent of women representation. In India, currently 25 lawmakers out of total 243 are represented in the Upper House (see the table). Globally, Nepal stands at 45th position in terms of women representation in parliament, whereas India ranks at 145th position.

Women in Parliament

Lower House

Country	Seats	Women	% of Women
Nepal	275	90	32.7
India	543	78	14.4

Upper House

Country	Seats	Women	% of Women
Nepal	58	22	37.9
India	243	25	10.3

(Source: Inter-parliamentary Union Open Data)

Time for consolidation
HLA Hart, a jurist of Analytical School of Jurisprudence, has rightly said that enactment of law is one thing and its implementation another. To give concrete shape to the aspirations of the people and the goals ordained under the constitution, there is a dire need of guaranteeing the rights of the people.

Provisions of the fundamental rights relating to right to housing, employment, food, or right to clean and healthy environment are yet to be implemented. Jobless people are yet to claim employment as a matter of right. Enforcement of fundamental rights during the Covid-19 remains a far cry so far.

From 2006 to 2015, Nepal has had several constitutions. In fact, Nepal has been more active in replacing old constitutions with the new ones but the successive governments have done little to address the aspirations of people and develop the nation by fully implementing the provisions enshrined in those constitutions.

Mere enactment of constitutions does not serve the cause of democracy unless the provisions therein are implemented in both letter and spirit. Nepal’s young republican democracy deserves development, rule of law and constitutional democracy, not frequent changes of the constitutions.

(The author, former lecturer of Law at Kathmandu University School of Law, is currently a Judicial Officer at Dhanusha District Court. He has co-authored Socio-legal impacts of COVID-19: Comparative critique of laws in India and Nepal)

jhajivesh@gmail.com

https://www.nepallivetoday.com/2021/04/24/nepals-democracy-deserves-development-and-prosperity/

Educate people, amend laws, provide relief if we are to be safe

 

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Jivesh Jha - 7 May, 2021

 @NepalLiveToday

• Read Time 4 min.

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It’s getting late to spread the Covid awareness message in Madhesh, in the language they understand, that Covid is neither rich man’s disease nor the sinners’ but that it attacks all. 

Even though it is established that self-isolation and physical distancing is the only way to keep Covid away, many folks in Madhesh, Nepal’s southern plains, seem to think that Covid-19 pandemic is a blessing in disguise.

In Janakpur, there are people who consider this pandemic as a divine punishment unleashed by God on mankind. For them, Yajna and religious activities at temples could be the “only” way to drive the threat away. Elderly people tell the youngsters: People have lost faith in God, they have become sinners and the sinners are dying of Covid-19.

As a matter of fact, many people here still do not know what Covid-19 pandemic actually is. People don’t understand Nepali language here. The Covid-19 awareness messages spread by the government or non-government agencies do not reach the ordinary people.  The Caller Back Ringtones (CRBT)  of the mobile network providers, like Nepal Telecom or Ncell, are in Nepali, which Madheshi youths living in urban areas understand but which means nothing for the elderly and uneducated people in the rural settings.

It’s getting late to spread the message in Madhesh, in the language they understand, that Covid is neither rich man’s disease nor the sinners’, it attacks all and therefore one should follow all safety measures. 

The fault lines and staggering trust deficits are evident when it comes to government’s unscientific and unhygienic management of quarantine and isolation centers. In Bathnaha of Mahottari, my home village, recently two elderly persons, in their 60s, succumbed to the virus. A group of people joined the final rituals, some of them later tested positive. There is no agency to keep them in isolation and quarantine. They walked around freely, performing their usual business and probably spreading the contagion.

The healthcare professionals in villages often treat Covid suspects as common cold patients. In Janakpur, I can see people walking on the streets or attending marriage ceremonies without masks, whatever the warnings by the government. Actually, they think that the government is not going to come to their aid when they catch Covid and that they have savings enough to battle the disease if they contract it.

Unjust laws

Interestingly, Nepal’s epidemic laws recognize the rights of the state but fail to take cognizance of the duties of the government towards its subjects. The Infectious Disease Act (1964) provisions that the person who wilfully disobeys the lockdown/prohibitory orders will be punished with imprisonment of either more than one month and/or fine of Rs 100.

The legislation confers blanket power on the state to curtail the outbreak of infection but it does not necessarily explain 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.

In the case of Advocate Roshani Paudyal v Government of Nepal and Others—the Supreme Court on August 5, 2020 directed the government of Nepal to study the effectiveness of the existing laws and to enact laws in line with the study report submitted to the government. The apex court also directed the government to prioritize the concerns of women and high-risk-groups in the said laws to be enacted to deal with the issues and concerns of the pandemic. 

On April 26, Parliament’s Legislative Management Committee urged the government to amend the (outdated) laws relating to epidemic and disaster management. The Committee had said that Nepal is in need of a progressive law to battle the epidemic-like situations. In fact, a law which does not prescribe the rights of the citizens and duties of the state towards their citizens deserves to be amended or substituted with fresh enactments showing a clear roadmap of obligations and civil liberties.  As things stand, the law has not been amended yet.

It will be difficult for the state to combat outbreaks unless there is a specialized research center to study the causes, symptoms, prevention and treatment of the diseases. Our epidemic laws fail to define what infectious or contagious disease is. The legislation explains that the government has an inherent right to adopt measures to contain the spread of infectious diseases but they do not explain duties of the state towards its vulnerable citizens during health emergency-like situations. Nor do the laws explicitly and authoritatively recognize the rights of citizens during the outburst of any disease. Thus, the state has failed to ensure welfare of people.

Loss of wages, unemployment and lack of access to welfare schemes make the situation worse. It’s imperative to ensure masks, food and relief materials to the needy through the public distribution system

In the UK, the Coronavirus Act (2020) obliges the state to provide compensation to the Covid victims. The newly enacted special law succeeds to strike a balance between the rights and duties of the state during the Covid outbreak. It has a provision which seeks to register health workers, volunteers or other persons or organizations engaged in serving the people and society.

The government of Nepal may take a leaf from that Act, which is a special law enacted for defeating the Covid-19.

Give me mask

Needless to say, poor and underprivileged suffer the most during the lockdown. Loss of wages, unemployment and lack of access to welfare schemes make the situation worse. It’s imperative to ensure masks, food and relief materials to the needy through the public distribution system.

In Janakpur and nearby villages, many people do not have money to purchase masks. The local bodies are neither educating them to cover faces with towels as an alternative to masks, nor do they distribute essentials kits or relief materials free of cost.

It’s time for the state to save its people through every possible means that can be explored.  

The author, former lecturer of Law at Kathmandu University School of Law, is currently a Judicial Officer at Dhanusha District Court. He has co-authored “Socio-legal impacts of COVID-19: Comparative critique of laws in India and Nepal.”

https://www.nepallivetoday.com/2021/05/07/educate-people-amend-laws-provide-relief-if-we-are-to-be-safe/

Legal deficiencies in Covid response: A case of Nepal and India

 

A policeman arrests a man using a pole with a clamp attached during the lockdown. (File photo/RSS)

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Jivesh Jha - 24 May, 2021

 @NepalLiveToday

• Read Time 7 min.

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Due to Covid-19 lockdown, fundamental rights relating to life, liberty, food, housing and health of the citizens are in peril. The legal regime in Nepal struggles to provide a comprehensible legislative and regulatory framework for an effective public health crisis management system.

Recently, the government brought Ordinance for Covid-19 Crisis Management (2021) to strengthen the prevention and response mechanism. The Ordinance, with as many as 42 sections, confers ample powers on the government to adopt plans and policies to contain the coronavirus. Under Section 3(f), the government has the power to take any medical equipment or medicines produced from government or private enterprises under its control and distribute, sale or use them. In doing so, the law seeks to establish an ‘eminent domain’ of the state over private properties.

In addition to this, the government has the power to declare health emergency at the instance of widespread transmission of the virus. The ordinance confers power on the state to temporarily suspend the operation of flights and all other types of vehicular movements, suspend the people’s right to move, suspend movement across the borders or prohibit the operation of cinema halls, marketplaces, temples or any business or activities that see gathering of people. This arrangement legitimizes lockdown.

The Chief District Officers (CDOs) are made responsible for the implementation of the provisions contained under the Ordinance. It envisages the creation of Covid-19 Unified Central Hospital at Bir Hospital, Kathmandu. This dedicated hospital would be have authority to establish similar types of dedicated Unified Hospitals at provincial level. The hospital so established in provinces may be wholly maintained by the centre or the provinces. The law aims to establish an integrated treatment system to treat Covid-19 patients across the country so as to maintain the record of the number of patients and fatalities.

The latest law envisions a strong Directive Committee (DC) under the Chairmanship of Prime Minister. Section 12 details the functions of DC which include enactment and enforcement of plans and policies required to curb the rate of transmission of virus and do the needful for enhancing foreign aid and to establish coordination with provincial governments in fights against the pandemic. Interestingly, similar arrangement has been proposed at provincial level with Chief Minister as head and at district level under the leadership of CDO. The DC at the centre has the power to deploy Army to contain the virus.

Part-5 of the Ordinance provisions for up to Rs 5,00,000 fine, up to one year of imprisonment or both for an outlier who obstructs the government officials in implementation of the provisions of this ordinance.  Fine of Rs 3,00,000 or up to 6 months of jail or both has been provisioned for an outlier who wilfully disobeys the laws in force. The ordinance incorporates harsh penal provisions. A CDO is empowered to slap a fine of up to Rs 100,000 on any private citizen and a fine of Rs 500,000 on any institution found violating the orders passed under the ordinance. In addition to this, the security apparatuses are empowered to slap fine of Rs 100 for not wearing masks, Rs 200 for movement in the areas under lockdown, and Rs 2000 for bikers and Rs 5000 for other vehicles found roaming on the streets where prohibitory orders are issued.

The ordinance confers ample powers on the government to register healthcare professionals, manage health equipment, medicines, or to seek foreign cooperation among other things to defeat the pandemic. The law does not have any compensatory measures. The affected parties cannot claim compensation under current legal regime. Simply put, this law recognizes the rights of state but fails to guarantee the rights of citizens.

Nepal should adopt and enact a comprehensive pandemic code to augment medical research and to compensate the loss caused by the pandemic to the private enterprises as well as underprivileged people.

Moreover, the Ordinance fails to give effect to the orders of the Supreme Court. The apex court on May 31, 2020 had directed the government 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 (2018).

 Cases elsewhere

But countries facing similar crises elsewhere have tried to ensure public health and safety by law. For example, the UK government on March 25, 2020 adopted and enacted a special legislation, known as Coronavirus Act (2020) to break the chain of the transmission of the deadly virus. This Act features as many as 102 Sections and 29 Schedules. Interestingly, this legislation has a sunset clause which envisions that the law is enacted for a purpose and it would expire after a couple of years. As per Section 89, which is a sunset clause, the majority of the provisions will expire after two years. Nevertheless, this period may be extended by six months or shortened in accordance with Section 90.

The Act casts an obligation on the state to increase the manpower in health and social care sectors. Sections 11 to 13 of the Act provide indemnity against clinical negligence claims for healthcare professionals assisting in the response to the outbreak, who would not otherwise be so indemnified. Section 9 makes arrangement for the compensation to emergency volunteers who may have incurred loss of earnings or for travel and subsistence. Most importantly, the law guarantees compensation to every person who suffers loss or becomes victim of the current outbreak.

 In Canada, the health issues are dealt at provincial level in close coordination with the central government. The Public Health Agency Act (2006) led to the establishment of Public Health Agency of Canada which is responsible for the prevention of diseases and preparation and response to the public health crisis. Emergencies Act (1988) prescribes compensation for the persons who suffer loss, injury or damages as a result of anything done or purported to be done due to emergency proclamation (Section 48). According to this Act, in order to deal with health emergencies, the governments have to establish emergency shelters and hospitals; assess the damage to any work or undertakings and invest on the repair, replacement and restoration thereof.

In Australia, the National Health Security Act (2007) envisages process to deal with national health emergencies. The provisions, in the 2007 Act, are tailored to give effect to the World Health Organization (WHO) guidelines to fight against a disease.

In the US, the government invoked the Public Health Services Act (1944) and Defence Production Act (1950) to combat with coronavirus outbreak. The National Emergencies Act (1976) and the Stafford Act allow the president to declare a national emergency and allows the Federal Emergency Management Agency (FEMA) to access nearly $40 billion in disaster relief funding. Similarly, the surgeon general is also enabled by this act to use his/her judgment to decide on any measures necessary to prevent the spread of communicable diseases. “Additionally, the 10th Amendment under the U.S. Constitution also grants all power that is not specifically allocated to the federal government to the states, which then have the authority to take actions such as isolation and quarantine in their respective jurisdictions,” writes Dr Bipin Adhikari in Socio-legal Impacts of COVID-19: Comparative Critique of Laws in India and Nepal (2020).

India and Nepal

The epidemic law regime in India and Nepal fail to host welfare functions. Under Nepal’s current epidemic law, a person who wilfully violates lockdown would be punished with imprisonment of either description for a term which shall not be more than one month; or fine of Rs 100 or both. The Infectious Disease Act (1964) authorizes Chief District Officers (CDOs), who are answerable to Nepal’s Home Ministry, to implement the decisions taken in line with the Infectious Diseases Act. The CDOs are entitled to implement the Local Administration Act (1971) in case of urgencies or to impose prohibitory order.

India has invoked a 123-year-old colonial legislation to combat the outbreak of coronavirus. Constitution experts in India emphasize that it is imperative to amend or repeal the 1897 Epidemic Act, for the century-old-blunt law has glaring gaps. Section 3 of the Act provisions that any person found disobeying any regulation or order made under this Act shall be deemed to have committed an offence punishable under Section 188 of the Indian Penal Code (IPC) (1860). Section 188 (disobeying public servant’s order) allows the state to inflict jail term of one month, or fine of up to Rs 200, or both. 

The epidemic laws in Nepal and India fail to define what infectious or contagious disease is. The legislations—in India and Nepal—confer 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 recognize the rights of the citizens during an outbreak. The epidemic laws in India and Nepal don’t oblige the states to adopt scientific measures or invest in research required to curb the spread of an infection. Unlike in Canada, England and the US, the epidemic law regimes in India and Nepal nowhere prescribe welfare functions. The legislations do not necessarily oblige the governments to ensure arrangement of food or compensation or financial assistance to the daily wage labourers or poor and needy ones during crisis.

The epidemic law regimes in India and Nepal nowhere prescribe welfare functions. The legislations do not oblige the governments to ensure arrangement of food or compensation or financial assistance to the daily wage labourers.

India invoked National Disaster Management Act (2005) to declare Covid-19 outbreak as a national disaster. Section 3 provisions for the formation of National Disaster Management Authority which can adopt measures or direct the states to adopt measures to prevent the outbreak. Prime Minister Narendra Modi invoked this law to implement a uniform lockdown in India. There is also provision for the creation of State Disaster Response Fund where the Central government contributes 90 percent and the states contribute the remaining 10 percent. This fund is created in every state to fight against pandemic and disasters.

What should Nepal do?

Nepal is obliged by law to protect and promote the social wellbeing of the people. People at the bottom of the socio-economic pyramid, especially daily wage labourers, have been hit hard by the lockdown. The Supreme Court of Nepal and Parliament’s Legislative Management Committee have already directed the government to enact laws to battle the pandemic like situations. 

In our part of the world, as there is no any mechanism to bring workforce of informal sector under safety nets, a drop in their income due to unprecedented situations like pandemic, lockdown, shutdown, or disaster-like situations can drive them into poverty. Our democracy deserves to recognize the rights and concerns of the people engaged in informal sectors and others who suffer the loss due to health emergency or disaster.

Even the Ordinance has failed to recognize the rights of citizens.

Our democracy is failing to act as the guardian of the underprivileged people, violating the celebrated common law doctrine of Parens Patriae. In the UK, Coronavirus Act (2020) casts an obligation on the government to provide compensation to the victims of Covid-19, striking a right balance between the rights and duties of the state during the outbreak.

Nepal should adopt and enact a comprehensive pandemic code to augment medical research and compensate the loss caused by the pandemic to private enterprises as well as underprivileged people. Or it should allow the provinces and local governments to adopt such plans or policies as needed.

The author, former lecturer of Law at Kathmandu University School of Law, is currently a Judicial Officer at Dhanusha District Court. He has co-authored “Socio-legal impacts of COVID-19: Comparative critique of laws in India and Nepal.” jhajivesh@gmail.com

https://www.nepallivetoday.com/2021/05/24/legal-deficiencies-in-covid-response-a-case-of-nepal-and-india/

दशकैपिच्छे संविधान फेर्दा पनि नेपालमा किन हुन सकेन विकास ?

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काठमाडाैं | असार १२, २०७८

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नेपालले संघीय लोकतान्त्रिक गणतन्त्रात्मक संविधान जारी गरी कार्यान्वयनमा ल्याएको ६ वर्ष पनि व्यतित हुन नपाउँदै संविधान नेपालमा असफल भयो । यसकारण नयाँ संविधान जारी गर्नुपर्छ भन्ने आवाज यदाकदा सुनिन थालेको छ ।

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विक्रम संवत २००४ सालमा जारी भएको नेपालको वैधानिक कानूनदेखि २०७२ सालको नेपालको संविधानसम्म आइपुग्दा हामीले ७ वटा संविधान जारी गरिसकेका छौं । आनुपातिक हिसाबले हेर्दा प्रत्येक १० वर्षको अन्तरालमा एउटा संविधान खारेज गर्दै अर्को नयाँ संविधान जारी गर्ने गरेको देखिन्छ । संविधान मानौं प्रत्येक १० वर्षमा फेरिने भित्तेपात्रो जस्तो भएको छ ।

संविधान परिवर्तन गरिरहँदा सायद विश्वमा प्रचलित अधिकांश राजनीतिक व्यवस्था र अन्तर्राष्ट्रिय कानूनहरू संविधानमार्फत कार्यान्वयनमा ल्याइसकेका छौं । विगत ७ दशकको अवधिमा संविधान परिवर्तन गर्ने सन्दर्भमा नेपाल विश्वको प्रथम राष्ट्र बनेको छ ।

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अमेरिकामा सन् १७८९ अर्थात आजभन्दा २३२ वर्षअघि कार्यान्वयनमा आएको संविधान हालसम्म कार्यान्वयनमा रहेको छ । अमेरिकाको संविधान विश्वको सबैभन्दा छोटो संविधान मानिन्छ, जसमा जम्मा ७ वटा धाराहरू र ती धाराहरूभित्र विभिन्न दफाहरू उल्लेख भएको पाइन्छ । विश्वकै छोटो र पुरानो संविधान भएर पनि अमेरिका आज विश्वकै सबैभन्दा शक्तिशाली र समृद्ध मुलुक बनेको छ । अमेरिकाको यो अभ्यासबाट के प्रमाणित हुन्छ भने संविधान कोर्नुभन्दा कार्यान्वयन बढी हितकर हो ।

त्यसैले त एचएलए हार्टले भनेका छन्, ‘कानून लेखन एउटा कुरा हो भने कानूनको कार्यान्वयन अर्को ।’ कानून निर्माणले मात्र पुग्दैन, त्यसको कार्यान्वयन पनि सफा मनले हुुनुपर्‍यो ।

संविधान आफैंमा परिवर्तनशील तथा गतिशील दस्तावेज हो । संविधानमा नै संविधान संशोधन सम्बन्धी व्यवस्था गरिएको हुन्छ । संविधान संशोधन सम्बन्धी व्यवस्था नेपालको संविधानको धारा २७४ मा व्यवस्था गरिएको छ भने अमेरिकाको संविधानको धारा ५ मा संविधान संशोधन सम्बन्धी व्यवस्था गरिएको छ  ।

हामीले ७ वटा संविधान परिवर्तन गर्दाको समयमा अमेरिकाको संविधान ५ पटक मात्र संशोधन भएको छ । २३२ वर्षको समयावधिमा अमेरिकाको संविधान २७ पटक संशोधन गरिएको छ । अचम्मको सन्दर्भ के छ भने अमेरिकामा सन् १९९२ मा सबैभन्दा पछिल्लो पटक संविधान संशोधन भएको थियो र संशोधनको प्रस्ताव सन् १७८९ मा नै गरिएको थियो । संशोधनको प्रस्ताव गरिएको २०३ वर्षपछि मात्र संशोधन भएको देखिन्छ ।

जापानको संविधान १९४७ मा अमेरिकी सेनाका अधिकारीहरूबाट निर्माण गरिएको थियो । दोस्रो विश्वयुद्धमा परमाणु हतियार समेत प्रयोग गरी लाखौं जापानीहरूको ज्यान लिने सेनाका अधिकारी तत्कालीन नेटो सेनाध्यक्ष अमेरिकी नागरिक म्यकअथरबाट संविधान निर्माण भई जारी गरिएको थियो । जारी भएको ७ दशकभन्दा पनि लामो अवधिसम्ममा जापानको संविधानमा कुनै संशोधन गरिएको छैन । आफ्नो शत्रु राष्ट्रको नागरिकबाट तयार गरिएको संविधानमा नागरिकको अपनत्व हुन सक्दैन भनेर हालसम्म जापानी नागरिकबाट आन्दोलन गरिएको छैन तथा संविधानमा भएका प्रावधानहरू परिवर्तन गरिएको समेत छैन । तथापि जापान आज विश्वकै समृद्ध मुलुक सूचीमा रहेको छ । जापानी जनताहरू सुखी र सम्पन्न रहेका छन् ।

संविधान शासन व्यवस्था सञ्चालन गर्ने सरकारको मार्गदर्शन हो र यसले राजनीतिक पद्धतिको स्थापना साथै आर्थिक राजनीतिक तथा सामाजिक अधिकारको प्रत्याभूति गराउँछ । संविधान कानूनको स्रोत, राज्यका अंगको स्थापना तथा सञ्चालन, जनताका अधिकार लगायतका विषयहरू उल्लेख गरिएको हुन्छ र नेपालको संविधानमा उल्लेख गरिएको छ । 

नेपालको वैधानिक कानूनमा ६८ वटा धारा समावेश गरी शुरू गरिएको नेपालको संवैधानिक इतिहासमा हालसम्म आइपुग्दा ३०८ वटा धारा समावेश गरिएको छ । यसले के स्पष्ट गरेको छ भने हामीले संविधानलाई अझ बढी विस्तृत र स्पष्ट पार्दै लगिरहेका छौं । अर्कोतर्फ अमेरिकाको संविधानमा जम्मा ७ वटा धारा मात्र रहेका थिए र हालसम्म पनि ७ वटा धाराहरू नै रहेका छन् ।
 
संविधान जारी हुँदाका बखत अमेरिकामा रहेका काला जातिका मानिसले व्यक्तिको मान्यता पाएका थिएनन् । १८५७ मा आएर मात्र काला जातिका मानिसहरूले व्यक्तिको मान्यता पाएका थिए । आज विश्वमा सबैभन्दा बढी व्यक्तिगत अधिकारको उपभोग गर्ने व्यक्तिहरू अमेरिकन नागरिक रहेका छन् भन्दा फरक नपर्ला । 

सन् १८६१ देखि १८६५ सम्म चलेको अमेरिकन गृहयुद्धमा ६ लाखभन्दा बढी अमेरिकनहरूले ज्यान गुमाएका थिए । तत्कालिक अमेरिकन राष्ट्रपतिहरू अब्राहम लिंकन, गार फिल्ड, म्यकेन्ली र केनेडीको हत्या गरिएको थियो । रुजवेल्ट रेगन जस्ता लोकप्रिय राष्ट्रपतिमाथि आक्रमण गरिएको थियो । गत वर्ष मात्रै जर्ज फ्लोयड नाम गरेको अस्वेत नागरिकलाई सामान किनेको पैसा नदिएको आरोपमा स्वेत प्रहरीले घाँटी थिचेर मारेको विषयमा ठूलो आन्दोलन भएको थियो  । तथापि अमेरिकनहरूले संविधानको विरोध गरेको देखिएन तथा संविधान परिवर्तन गर्नुपर्छ भनी आवाज उठाएको सुनिएको छैन । अमेरिकन नेता तथा जनताको संविधानप्रतिको सम्मान विश्वास र पालनाको कारणले अमेरिकाको संविधान जीवन्त तथा अटल रहेको छ ।

आमनागरिकबाट निर्वाचित भई प्रतिनिधित्व गर्ने निश्चित व्यक्तिहरूले बनाएको संविधान मात्र राम्रो तथा स्थायी हुने भनाई जापानको सन्दर्भमा बिलकुलै मेल खाँदैन ।

पटक–पटकको संविधान परिवर्तनको मूल लक्ष्य नै राजनीतिक व्यवस्थाको स्थायित्व, न्यायपूर्ण समाजको स्थापना, देशको विकास तथा जनतालाई अधिक अधिकारको प्रत्याभूति समेतका लागि हो भनी बताइन्छ । विश्वकै सबैभन्दा उत्कृष्ठ संविधान बनेको भनि आमरूपमा प्रचारप्रसार पनि गरिन्छ । तर पनि नेपाल अतिकम विकसित राष्ट्रको सूचीबाट उम्किन सकेको छैन । वैदेशिक ऋण बढ्दो छ । निर्यातको तुलनामा आयात दशौं गुणा बढी रहेको छ । आम सर्वसाधारणहरू आधारभूत आवश्यकताको अभावमा जीवन जिउन बाध्य छन् । विकासका पूर्वाधारहरूको अवस्थामा सुधार हुन सकेको छैन । राज्यका प्रमुख अंगहरू नै विवादमा आइरहेका छन् । देशको सार्वभौमिक समानताको अवस्था स्खलित हुँदै गइरहेको छ । राजनीतिक पद्धतिको स्थायित्व हुन सकेको छैन । संविधान परिवर्तनले उल्लेखनीय परिवर्तन ल्यायो त ?

नेपालमा संविधान परिवर्तनका घटनाक्रमलाई विश्लेषण गर्दा के निष्कर्षमा पुग्न सकिन्छ भने तात्कालिक राजनीतिक शक्तिले आफू अनुकूल शासन व्यवस्था सञ्चालन गर्नका लागि नै पटक–पटक संविधान परिवर्तन गरेको छन् । कुनै राजनीतिक दल वा शक्ति शासन व्यवस्थामा पहुँच पुग्नासाथ संविधान परिवर्तन गरे । चाहे त्यो शक्ति राजसंस्था होस् वा राजनीतिक दल नै किन नहुन्, यस्तो लाग्छ कि नेपालमा संविधान परिवर्तनको उद्योग चलेको छ र समय–समयमा संविधान निर्माण भइराखेको छ ।

कुनै निश्चित संविधान अन्तर्गतको शासकीय प्रणालीको लामो समयसम्म अभ्यास गरेपछि मात्र राजनीतिक संस्कार बन्दछ । राजनीतिक मूल्य मान्यता निर्धारण हुन जान्छन् । त्यसैगरी संवैधानिक नैतिकता पनि तयार हुन्छ । अन्त्यमा राजनीतिक स्थायित्व कायम रहन्छ ।

हामीले कुनै राजनीतिक शासन प्रणालीलाई अभ्यास गर्दै गरेनौं र गर्ने आवश्यकता पनि ठानेनौं । हाम्रा नेतृत्वकर्ताहरूले आफूले गर्न नसकेको दोष संविधानलाई लगाए र आमजनता पनि विश्वास गरेर सडकमा पुगे र निर्वाचनमा तिनैलाई मत दिई आफूलाई शासन गर्न अनुमति दिए ।

२०४७ सालमा विश्वको सबैभन्दा उत्कृष्ठ भनिएको संविधान निर्माण गर्ने ठूला शक्ति वा दलहरूले नै १५ वर्ष नपुग्दै संविधानसँगै राजनीतिक व्यवस्था परिवर्तन गर्न आह्वान गरे र परिवर्तन गराए । २०४७ सालको संविधानलाई आरोपित गरे कि जसका कारण देशमा विकास समृद्धि र शान्ति न्याय व्यवस्था अपहरण भयो । २ दशक पनि कायम रहन नसक्ने संविधान निर्माण गर्नेहरूले निर्माण गरेको हालको संविधान पनि शताब्दीऔंसम्म कायम रहन्छ भनी कसरी विश्वास गर्न सकिएला ।

नयाँ संविधान बन्ने र बनाउने हाम्रो क्षमता वा संस्कारले गर्दा सयौं वर्ष नेपालमा शासन गर्ने राजा पनि आफ्नो दरबारबाट खेदिएर सामान्य जीवन जिइरहेको तथ्य पनि सत्य रहेको छ । पटक–पटक संविधान परिर्वतन गराई राजनीतिक शक्तिमा रही शासन चलाउने तत्कालीन नेताहरू आगामी दिनमा देशको भूगोल वा आफ्नै घरबाट निकाला नहोलान् भन्न सकिँदैन ।

अन्त्यमा भारतीय संविधानका निर्माता डा. भीमराव अम्बेडकरले भनेका थिए – संवैधानिक अधिकारीले आफ्नो संवैधानिक अधिकार संवैधानिक नैतिकताको विपरीत हुने गरी काम गर्नु हुँदैन र संवैधानिक नैतिकता सामान्य विचार वा व्यवस्था होइन । यसको सिर्जना गरिनुपर्छ । कुनै पनि राष्ट्रको राजनीतिक व्यवस्थाको स्थायित्वको लागि न त संविधानको आयू लामो हुन आवश्यक छ, न त आफैं बनाएको हुनुपर्छ वा नयाँ नै हुनुपर्छ । संविधानवादमा आधारित भई निर्माण गरिएको संविधान अन्तर्गत नेतृत्वमा रहने व्यक्तिहरूमा संवैधानिक नैतिकता हुन आवश्यक रहन्छ  ।

https://lokaantar.com/story/148514/2021/6/26/aalekh/constitution#