g. 此外，根据世界卫生组织等国际组织的建议，包括国际特赦组织和人权组织在内的联合国人权事务高级专员办事处（UN OHCHR）在（流行病或大流行病）危机中充分尊重并保护人权。
Application of Human Rights Principles in Dealing with Pandemic/Epidemic: Context of Nepal
Hari Phuyal, Judge, Supreme Court of Nepal
Hari Phuyal, Judge, Supreme Court of Nepal
The global COVID 19 coronavirus pandemic has spread to millions of human being and cost many lives including slowing down of economic activities to the entire world.
The first case of the COVID-19 pandemic in Nepal was confirmed on 24 January 2020 in Kathmandu District. The government of Nepal with an aim to contend the widespread outbreak of contagion announced a nationwide lockdown sealed the boarders and suspended the international flights.
The COVID 19 pandemic has severely impacted the overall sectors of the world, and Nepal is no exception. The pandemic has left no fields or sectors untouched in Nepal too, and top of all, it had a knock on effect on the overall basic human rights of people. More particularly, the economic and social impacts of pandemic are at unprecedented scale and its impact on human rights (and ESC rights in particular) is staggering and long lasting.
Even during the pandemic the core right to life and non-discrimination prevails in any jurisdiction and of course Nepal is no exception to such obligation.
WHO’s guideline on Addressing Human Rights amidst COVID-19 response:
The WHO has addressed all countries to respect and recognize the health and human rights of people and asked the countries to keep the human rights standards in the center of pandemic responses.
Considering, the range of violation and discrimination being surfaced after the outset of current pandemic, the WHO has particularly addresses the countries to refrain from violations including:
a. Address and stopping the growing stigma and discrimination against those who have contracted the virus, and rising cases and concerns like xenophobia and racism. (In case of Nepal growing discrimination against the Migrant Workers who have been stigmatized for bringing and spreading the virus in the country).
b. Protecting the more vulnerable sectors of the society and providing them with special care and protection (those who are physically vulnerable as well as those who’s more vulnerable to the social and economic impacts of pandemic).
c. Quarantine and restrictive measures to be in accordance with the law; pursue a legitimate aim; proportionate; and not arbitrary or discriminatory.
d. Supplies and equipments to protect the frontline health workers is paramount and PPE, including medical masks, respirators, gloves, gowns, and eye protection, must be prioritized for health care workers and others caring for COVID-19 patients. In view of the global PPE shortage, WHO recommends strategies that can facilitate optimal availability and appropriate use of PPE.
e. International assistance and cooperation to be provided especially targeting the low and middle-income countries to fight against the effects and disasters of pandemic.
UN Human Rights Office of High Commissioner (OHCHR):
The OHCHR has established COVID-19 GUIDANCE with an aim to keep human rights at the heart of response by the state.
The guidance basically endorses for:
• Non-discrimination in providing access to health care,
• The emergency measure of the government should be legitimate and the non-derogable rights like principle of non-refoulement, the prohibition of collective expulsion, the prohibition of torture and ill-treatment, the right to freedom of thought, conscience and religion, and other,
• Leaving no one behind during response and protection and special attention to ethnic or religious minorities, indigenous peoples, migrants, displaced persons, and refugees, older persons, persons with disabilities, sexual minorities or people affected by extreme poverty who are more like to be missed or excluded,
• Adopting adequate/emergency-housing facilities to those having inadequate housing facilities especially considering government’s stay at home mandates,
• Special and targeted measure to address person with disabilities and elderly (older persons) considering the higher vulnerability,
• Sates are asked urgently explore options for release and alternatives to detention to mitigate the risk of harm within places of detention including releasing all children from detention,
• Access to information in all languages and people’s participation in decision making,
• Responses against stigmatization, xenophobia and racism,
• Take specific actions to include migrants, IDPs and refugees in national COVID-19 prevention and response,
• Measures to ensure the mobility and safe working conditions of agriculture workers to secure food production and address the food insecurity. Similarly, water and sanitation measures,
• As a response to social and economic impacts, for instance online learning, and specialised TV and radio broadcasts, social protection schemes, provision of quality personal protective equipment for occupational health and safety, provision of immediate economic relief packages like unemployment benefits, sick leave, food distribution etc. The response from the government to be gender sensitive and target the minorities as well.
Domestic Responses to current Pandemic in Nepal:
From human rights perspective, the Article 35 of the Constitution of Nepal (2015) guarantees right relating to health as the fundamental rights and ensures right to free basic health services from the State, and equal access to emergency health services. In line with this fundamental right, Nepal has enacted the Public Health Act, 2018 with the provision of free basic health services as well as the emergency health services, and ensuring easy and equal access to health-related services and facilities. However, many provisions this Act is yet to come in implementation.
The Constitution of Nepal also recognizes right to live with dignity, right to equality, right to communication, right to information right to privacy, right relating to education, right to labor, right to health, right relating to food, right to housing, right of women, right of child, right of senior citizen, right to social justice, right to social security, as fundamental rights which has been a subject of severe damage due to the current pandemic. With an aim to effectively implement these fundamental rights, the government of Nepal has recently (2018) endorsed specific legislation based on the fundamental rights, for instance Right to Food Act, Public Health Act, Contribution based Social Security Act, Right to Employment Act etc. These provisions are to be fully implemented.
Similarly, in relation to the disaster related responses, the Disaster Risk Reduction and Management Act, 2017 has been invoked with the aim to protect the life of the people form natural and non-natural catastrophes and handling all the activities of disaster management in a cooperative and effective manner.
As a domestic response to current pandemic, the government of Nepal (Ministry of Health and Population) has come up with Health Sector Emergency Plan (on May 2020), with the goal to prepare and strengthen the health system response that is capable to minimise the adverse impact of COVID-19 pandemic. As per the Plan, all the central hospitals, provincial hospitals, medical colleges, academic institutions and hub-hospitals have been designated to provide treatment care for COVID-19 cases. So far, more than 2000 hospital beds across the country are allocated for isolation of suspected and confirmed cases. While it has also been reported that at this stage of operation, the major challenge has been managing quarantine, human resources, limited laboratories for testing and limited stock of medical supplies for the response, which includes personal protective equipments, and other supplies.
The Government of Nepal has also formed a committee to coordinate the preparedness and response efforts, including the Ministry of Health Ministry of Home Affairs, Ministry of Foreign Affairs, Ministry of Finance, Ministry of Culture, Tourism and Civil Aviation, Ministry of Urban Development, Nepal Army, Nepal Police and Armed Police Force.
Similarly, at the non-governmental level, a high-level network of the National Human Rights Commission, Nepal Bar Association, Federation of Nepalese Journalists and NGO Federation of Nepal has been initiated to monitor the human rights situation with reference to COVID 19.
Human Rights Impacts of Pandemic and role of Judiciary: Examples from Nepal
In this challenging time, the Supreme Court of Nepal, in response to the petition filed under Public Interest Litigation, has issued many interim orders to the government to facilitate its activities. The current crisis could be a very good opportunity in building the resilience in the system. For instance, although the policy fell short in responding to current crisis, the Supreme Court has played a dynamic and proactive role in addressing human rights as a key to COVID 19 emergency response:
Right of Migrant workers: the Supreme Court has for the very first time recognized the “return” and repatriation as a basic human rights of Nepali migrant workers. When, the legal and policy frameworks remained silent in relation to the right to return as a fundamental human rights of migrant workers, the Court exhausted on its international obligation under human rights treaties like ICCPR and respected and recognized this right. Similarly, the positive verdict towards India bound migrant workers stranded in border for months has been influential.
Right to Health: In response to a Public Interest Litigation filed before the Supreme Court, the court summoned the officials from the health ministry to present before it the government’s plan to combat the Covid-19 pandemic and to prepare for the testing labs in all seven provinces of Nepal. Similarly, the Court has issued interim order to increase and maximize the Polymerase Chain Reaction (PCR) tests to contend the contagion and safeguard the right to life of Nepali Citizens.
Right of Children/Juvenile Justice: The Supreme Court by recognizing that the children who have been convicted and sentenced to a juvenile detention center have the right to request resentencing to home confinement, and the Supreme Court further reminded the justice sector that “it shall be the responsibility of everyone to instantly help children whose lives are at risk.”
Right to Food: The Supreme Court issued interim order, recognizing that people living on daily wages could be more affected by the current lockdown and that they are on the higher risk of being deprived of their right to food. The Supreme Court issued an interim order to ensure the constitutional right of food to the vulnerable workers (low income and daily wage workers) who are worst hit by the ongoing lockdown enforced by the government has marked another milestone towards respecting the ESC rights of the Nepali citizens especially in unprecedented situation like this. the Court further hailed requirement of residency and identity document is irreelent to receive relief.
a. The priority of the upcoming national plans and budget should be on establishing better health and food security system in Nepal. The recent plan of the government announced by the President of Nepal has outlined the blueprint to revive Nepal’s health, education, employment and economy in the coming fiscal year. The plan and program of the government laid emphasis on the upliftment of socio-economic sectors and platforms.
b. Develop a law and human rights based approach by bringing required changes in the laws and finance them to activate related institution and human resources to handle epidemic situation for future (New Government Policy: Centre Disease Control including labs and scientific research and regular surveillance, emergency health related investment such as equipment and medicines).
c. Emergency security plan should be in place to assist the health services during epidemic and pandemic situation
d. An emergency budget followed with a cohort of professional human resources to deal with such emergency situation in future.
e. As a current response, recognizing the obligations under the Constitution and ensure basic rights with special emphasis on economic, social and cultural rights in particular access to health services, right to food, right to information, etc.
f. Protection and relief schemes for the most vulnerable, including the elderly, people with disabilities, migrants, daily-wage workers, people in detention, refugees, and those without adequate housing facilities.
g. And, following the recommendation by international organizations like WHO, UN OHCHR including Amnesty International and Human rights in respecting and protecting the human rights in situation of crisis (epidemic or pandemic).