Foreword by Dr Bipin Adhikari
It is with great pleasure that I write a foreword to this timely exposition and analysis of the laws introduced in Nepal and India to combat the current COVID-19 Coronavirus outbreak. This global pandemic has been wreaking havoc on the lives of people across the globe, already infecting around 3 million people and claiming around a quarter of million lives thus far.
It may be a little bold to call legal responses against this viral pandemic adopted by India and Nepal “progressive laws,” as their existing pieces of legislation are neither bold nor comprehensive enough to address the various dimensions and issues of the crisis.
The main purpose of a legal academic writing should be to perceive and portray patterns and relations in a body of legal rules so as to make it manageable, teachable, comprehensible and usable. In Nepal, we have a limited number of professionals in the field of law who are concerned with the academic study of law and legal principles. Most of those who do write on legal subjects produce commentaries on existing Acts or epitomize a new discourse, debate, or discussion. The present work succeeds in doing both to a remarkable degree.
The study of disaster law by our legal professionals has evoked a great deal of controversy. There are some who take the view that the crisis or epidemic laws should lay down the rights of the instruments of the state to battle such unprecedented situations. Others take the view that an intelligent approach to the study of all law, whether statute or other common law, is possible only if it strikes a balance between the rights and duties of the state. Regardless of either approach, it is obvious that a writer who attempts to collate and explain the fundamentals of epidemic law which generally trigger legal systems, renders a useful service to legal learning.
The study of disaster law by our legal professionals has evoked a great deal of controversy. There are some who take the view that the crisis or epidemic laws should lay down the rights of the instruments of the state to battle such unprecedented situations. Others take the view that an intelligent approach to the study of all law, whether statute or other common law, is possible only if it strikes a balance between the rights and duties of the state. Regardless of either approach, it is obvious that a writer who attempts to collate and explain the fundamentals of epidemic law which generally trigger legal systems, renders a useful service to legal learning.
The first print of this book seems to be a comprehensive collection of the laws, views of the courts and international practice arranged under appropriate heads. The authors’ reading that the epidemic law regimes in India and Nepal are neither comprehensive nor progressive cannot be overruled. We do not have modern policies, laws and institutions to combat health emergencies. The legal response to health emergencies, like the outbreak of a pandemic, has been poor. Neither country has a comprehensive law that deals with all aspects of prevention and control of a pandemic in the first place. The most important issue in such emergencies is to enable the federal agency to work with all provincial and local hospitals and health posts under federal coordination, resources and external support. Management of large-scale public health crises (i.e., the Coronavirus outbreak) is impossible without cooperation and coordination among the units of governance.
This begs the question about what kind of legal regimes are necessary in order to properly deal with a global pandemic of this scale and its threat to people’s lives, their livelihoods, and the larger economy of a state. Considering some of the issues that have risen in countries that have had large outbreaks of the Coronavirus may be useful in this regard. In contrasting the legal regimes in China (i.e. authoritarian) to that in South Korea (i.e. dramatic), some American scholars were quick to conclude that democracies, with their ingrained values of transparency, were better equipped at handling public health emergencies, while “[a]uthoritarianism is the greatest public health risk.” With news about China stifling whistleblower doctor Li Wenliang, some concluded that China had compromised the freedom of expression and curtailed the free flow of information. Of course, the tables quickly turned, as the pandemic overtook the United States and severely crippled its public health system.
There are various legal mechanisms at the United States federal government’s disposal to deal with a global pandemic like the COVID-19. For example, the National Emergencies Act (1976) and the Stafford Act allow the president to declare a national emergency, which activate emergency provisions and allows the Federal Emergency Management Agency (FEMA) to access nearly $40 billion in disaster relief funding. Additionally the Public Health Service Act allows the health and human services secretary to declare a public health emergency, “which then triggers a broader authority to ‘take such action as may be appropriate to respond.’” 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.
As such methods are imposed, some questioned how they infringe on Americans’ civil liberties, including individual freedoms, freedom of association, or a restriction on liberty. However, top legal scholars, like Harvard Law School faculty members, Charles Fried and Nancy Gertner, agree that “the restriction on individual freedom is largely appropriate for the circumstance.” When implementing surveillance measures that have been used by other countries, the issue comes down to whether such measures are proportionate with the purpose of containing the virus. However, Professor Gertner argues that the government cannot target individuals, like by tapping phones, or one business over a similar one, as the common good would outweigh the individual freedoms.
In Nepal, we have a plethora of peripheral laws that may become helpful in dealing with epidemics, but an integrated comprehensive legislation is overdue. The components of national health services, which are responsible for the diagnosis and treatment of individuals with infectious diseases, should act uniformly and in close coordination with a federal agency during the crisis. Local authorities may also be handed over statutory obligations and powers to control the spread of infectious diseases under the law. When it is considered that the existing law is, however, also seemingly quite inadequate in addressing the problem and that much more may be needed, one is bound to ask questions about how much of the world’s resources, wealth, energy and intellect is to be spent on this task of regulation and control.
In contrasting the South Korean legal regime with the American, B. Kim, a critic, writes that “[b]ehind the Korean government’s ability to afford ‘openness’—both in maintaining governmental transparency and in allowing for physical movement—in fact, is a custom-made legal apparatus that has empowered authorities to collect and disseminate private information in aggressive ways.” For example, through Article 76-2(2) of the South Korean Infectious Disease Control and Prevention Act (IDCPA), (1) the health minister is legally authorized to collect private data of citizens who are either confirmed with having the virus or are potential patients, and (2) health authorities can request private telecommunications companies as well as the National Policy Agency to share suspected and infected patients’ location information. Thus, without a warrant, South Korean authorities are empowered to gather such persons’ surveillance footage, credit card histories, and geolocations through cellular data and share them with the larger public to warn them about infected patients or buildings in the public vicinities.
This sort of digital surveillance has also been used in various other countries. In Singapore, the government has published an online dashboard that contains detailed information about each positive case of COVID-19; details include which street the person lives on, where he/she works, and the details about their travel history. In India, the state government of Kerala used geo-mapping to locate the primary and secondary contacts of a family that tested positive for the virus. In Taiwan, the National Health Insurance Administration and the National Immigration Agency joined forces to track the recent travel histories of citizens and their health information to identify high risk patients and monitor them through their cell phones.
The government’s access to such extensive private information, however, begs the question of how to prevent the misuse of this information by the government after the public health emergency has terminated. Many countries are going forward with such digital surveillance measures without much discussion and debate in their respective societies. To help guide this process in democratic nations with values regarding privacy and civil liberties, the Electronic Frontier Foundation provides some guidelines, including only necessary and proportionate privacy intrusions, data collection based on science, not bias, an expiration for additional authority, transparency, and due process (i.e. in the case that a government limits a person’s right based on “big data” and the concerned individual wishes to challenge the conclusions and limits).
In Nepal, we have a plethora of peripheral laws that may become helpful in dealing with epidemics, but an integrated comprehensive legislation is overdue. The components of national health services, which are responsible for the diagnosis and treatment of individuals with infectious diseases, should act uniformly and in close coordination with a federal agency during the crisis. Local authorities may also be handed over statutory obligations and powers to control the spread of infectious diseases under the law. When it is considered that the existing law is, however, also seemingly quite inadequate in addressing the problem and that much more may be needed, one is bound to ask questions about how much of the world’s resources, wealth, energy and intellect is to be spent on this task of regulation and control.
I want to thank Alok Kumar Yadav (India) and Jivesh Jha (Nepal) for undertaking such an important and timely research in a very short span of time. This work is an important first step towards rationalisation, for it does, by its very able and effective exposition, enable one to evaluate the dimensions of the problem and arrive at some sort of consensus of the existing legal apparatus. I trust the book will be useful not only to students in legal institutions, but also to the wider circle of scholars, practising lawyers and others interested in law.
Senior Advocate, Nepal Consulting Lawyers, Inc.
Founder Dean, Kathmandu University School of Law
April 28, 2020
