COVID-19 and Courts Symposium: The Active Role of the Nepalese Judiciary in Guiding Nepal’s COVID-19 Response

Manish Kumar Shrestha is an advocate and PhD candidate at the Nepal Law Campus in Nepal.

This symposium consists of a series of blogs authored by the different panelists of a webinar hosted by the International Commission of Jurists titled “COVID-19 and Courts: A Global Trend of Judicial Deference?“

Responding to the first wave of the COVID-19 pandemic, Nepal announced a nationwide lockdown from 24 March 2020. The lockdown was accompanied by government enforced restrictions on the movement in and out of Nepal at its borders. As a result, many Nepali migrant workers were stranded in other countries or at Nepal’s borders. Workers in India were especially affected and faced difficulties getting back home.

When COVID-19 cases started increasing in India in March 2020,  thousands of Nepali migrant workers in India started walking home. The footbridge over the roaring Mahakali river in Darchula district, which links the two countries, was sealed as a result, with more than 700 Nepali migrant workers stranded on the Indian side of the border with no food to eat. When the Nepalese government refused to repatriate them, some men jumped into the river and crossed the border by swimming. While similar situations were reported in several border points, the government refused to let its own citizens enter into their homeland.

First Wave: Early response of the Nepal Supreme Court

Responding to this situation, the Nepal Supreme Court issued a press release on 20 March 2020 indicating that “issues related to individual rights and serious cases related to pandemic” shall be heard by the Court even during the lockdown period. However, it was only on 27 April 2020 as peoples’ lives had become increasingly difficult due to lockdown measures that the Supreme Court decided to register and hear writ petitions to “protect the fundamental rights guaranteed by the Constitution” from 28 April 2020.

Between 20 March and 28 April 2020, as a practicing advocate I personally experienced difficulties in submitting petitions, having to make repeated attempts to register cases. The court administrator simply rejected petitions citing a fear of COVID-19 transmission.

Nevertheless, along with other lawyers, and considering the difficulties faced by the Nepalese citizens in getting back into Nepal through the Indian border, we filed a petition asking the Supreme Court to affirm that it is the government’s obligation to rescue its citizens and assist them in returning home, wherever they might be. In making this argument, we argued that Article 16 (1) of the Constitution of Nepal guarantees the right of every person to live with dignity and Article 17 (1) guarantees that the right to personal liberty shall not be violated except in accordance with the law. Similarly, we asserted that Article 35 (3) provides for the right of access to health care and Article 18 (1) provides that no one shall be deprived of equal protection of the law.

Responding to this petition,  the Supreme Court ordered the government to “identify the Nepali citizens who are facing shortage of food, shelter and medical treatment abroad or are in distress and to make necessary arrangements to bring Nepali citizens who want to return to Nepal through diplomatic means in coordination with the concerned country”. It also directed the authorities to “make arrangements to bring Nepali citizens who are willing to come to Nepal on the border of Nepal and India”.

Second and Third Wave: Managing the deficiencies in the Executive’s COVID-19 responses

Another issue in regard to Nepal’s COVID-19 response is the absence of pandemic-specific law, or other appropriate legal framework to respond to the pandemic.  The Nepal government used the decades old Infectious Disease Act, enacted in 1964, to coordinate its responses to COVID-19. The use of this outdated, broadly worded and inadequate law was challenged in a petition to the Supreme Court in August 2020, which at the same time drew the Court’s attention to the pressing difficulties faced by pregnant women in getting access to health services and the threat of women being subjected to harassment in the quarantine facilities.

The Supreme Court responded by issuing an interim order requiring authorities to take special care of women, children, and older persons in the quarantine facilities. It also required the setting up of a helpline for collecting information and complaints of violence against women. The Court also directed the government to formulate a pandemic law that would comprehensively address issues related to management of such pandemic.

Similar to the situation throughout the world, detained persons in Nepal also faced significant and disproportionate risk of COVID-19 infection. Some detained persons brought forward the problem of overcrowding in prisons to the Supreme Court’s attention, arguing that the conditions in prisons raised their risk to COVID-19 transmission and demanding the protection of their rights to health and life. In addressing this petition in September 2020, the Supreme Court noted that overcrowded prisons violate inmates’ rights to health and pose risk to their lives in the context of the COVID-19 pandemic. It thus ordered the authorities to look for alternative ways of penalizing those in the prisons.

Although the judiciary had already ordered the government to enhance its health infrastructure for the provision of medical services during the first wave in early 2020, the government failed to prepare itself adequately for what was an even more severe second wave. This is evident from the devastating situation Nepal faced during the second wave that started from early April 2021. Experts had warned of the potential threat of second wave as cases started to rise in neighboring India. However, the government did not immediately take action to enhance health facility capacity and as a result many people died in absence of oxygen supply, ICU beds, ventilators and other necessary medicines. Some frontline workers described the situation as “near apocalyptic”.

To attempt to compel better responses from the authorities, I filed a petition in the Supreme Court demanding that the government protect patients’ rights to health by making proper arrangements for adequate provision of oxygen supply, ventilators, ICU beds and other necessary medicines to treat COVID-19. In its ruling in this matter, the Court stated that:

“the protection of the public’s life is the primary responsibility of the State. Moreover as per Nepal’s commitment as the State party to various international treaties, and domestic obligations based upon the constitution of Nepal and other prevailing laws, the government cannot be relieved from its responsibility to safeguard life under any pretext, including lack of resources”.

Going a step further still, the Court ordered the government to ensure “that all citizens get a chance to be vaccinated against COVID-19” and that it take measures to secure “the preparedness in protection and control for the upcoming third wave or any other forthcoming possible infection”.

As cases have yet again started to rise in the last week of July 2021, public health experts have been critical of the government noting that Nepal is entering its third wave of the COVID-19 pandemic, with the health system still underprepared. While the World Health Organization has been constantly stressing the need to vaccinate people in order to prevent COVID-19 transmission, at the time of writing less than 4% of people in Nepal have been fully vaccinated. Making matters worse, the government does not have a transparent plan for vaccine acquisition, purchase and inoculation, and reports of corruption, profiteering and nepotism in the acquisition and rollout of vaccines are of significant concern. The government’s vaccine programme appears to be managed on an ad hoc basis. Lawyers will therefore continue to have a role to play by using litigation and the threat of litigation to pressurize the government to implement the various orders of the Supreme Court and respecting, protecting and fulfilling human rights.

Assessing the Nepal Supreme Court’s Interventions: Litigation is Not a Magical Wand

Overall, Nepal’s judiciary has played a very significant role in protecting the human rights even during COVID-19 pandemic, despite a slow start in which lawyers struggled to file petitions. Since April 2020, the Supreme Court has been open to hear petitions relating to the violation of the fundamental human rights and has consistently vindicated human rights and directed the government to ensure a rule of law and human rights compliant response to the pandemic. In doing so it has often stressed government’s obligations in terms of the rights to health and life in both international and domestic law. 

As a lawyer who has filed a range of petitions in the Supreme Court during the pandemic seeking to ensure the realization of human rights protections for all in Nepal, I am of the view that litigation remains an important tool to ensure government accountability in the wake of the COVID-19 pandemic. However, it is important to bear in mind that litigation is not a magic wand to that can be waved to make government work in compliance with human rights immediately. The key challenge remains to ensure the implementation of the Supreme Court’s orders. As in other parts of the world, Nepal also faces a clear problem with non-implementation and incomplete implementation of court decisions. This trend has been well observed in relation to the Supreme Court’s orders relating to COVID-19.

For example, claiming to address the current pandemic situation and improve on outdated Infectious Diseases Act, the government has recently brought an Ordinance for COVID Crisis Management 2021 (CMO) into effect. This represents the government’s attempt to enact a separate pandemic related law as directed by the Supreme Court, but the CMO fails to include important issues in this law as directed by the Supreme Court. For instance, the Court has frequently stressed the need for preparedness as major component for pandemic management, whereas the CMO is primarily focused on the treatment of COVID-19 and its general response to COVID-19. Similarly, the CMO does not adequately identify and prioritize marginalized and/or high-risk groups such as children, pregnant and lactating women, person with disabilities and older persons in accessing the health goods and services.  

Detainees, for their part, continue to be held in overcrowded conditions where there is big risk of COVID-19 transmission. People are generally still struggling to get access to proper health services, and the health system is still not prepared for the third wave. The general public still does not have sufficient information about COVID-19 vaccines and the government’s vaccination programme.

Therefore, in addition to continued legal pressure, what is needed is a wider grassroots movement for proper implementation of Supreme Court orders and broader political accountability for failed COVID-19 response measures. Petitioners and lawyers should relentlessly continue to bring cases seeking the protection of human rights, and the media should continue to follow up on the implementation of these orders.

* For more information on the decisions of the Supreme Court of Nepal mentioned in the blog, please see ICJ’s Briefing Paper “The Right to Health: Redirecting the ‘Unconstitutional Path’ of Nepal’s COVID-19 Responses“. I would like to thank Karuna Parajuli from the International Commission of Jurists for all of her help and useful comments.