Understanding pandemic and its inter-relationship with different institutions and disciplines of studies is fundamental to gaining a degree of understanding of pandemic justice. The relevance of pandemic justice becomes more critical when it comes to learning that a comprehensive pandemic code could only help the states in understanding a gamut of issues related to the pandemic. Such as its socio-legal challenges, medical concerns, indemnification of clinical negligence, the spate of violence or ill-treatment against persons infected with infectious diseases or the issues of compensation against the loss caused due to health emergency-like situations.

As the cases of COVID-19 are soaring up by the hour and death toll mounts in Nepal, an important argument that unfolds, of late, is about devising a comprehensive legal discipline to deal with issues connected with the pandemic.

The lockdown and quarantine measures have been crucial in containing the spread of the virus. But, the mere presence of epidemic law regime, which lays down the rights of the state during an outbreak but fails to prescribe the duties of the state towards the people in an unprecedented situation, could not address the overall dynamics of pandemics.

Addressing concerns of people

The Chief Justice of Nepal Cholendra SJB Rana in his greeting message on the eve of Law Day on May 8 underscored the needs of evolving a pandemic jurisprudence to address the concerns of people in the time of an outbreak. Under the current epidemic law regime in India and Nepal, the state could punish violators of a lockdown or adopt necessary measures, like issuing prohibitory orders, curfew or sanitize the infected area or isolate infected persons. But, the laws fall short on addressing the concerns of underprivileged people, daily wagers, or others who would not have suffered otherwise.  

The daily wagers and people working in unorganized sectors walked home to escape hunger and insecurity. In India and Nepal, millions of poor and needy citizens were seen on social media and on television channels heading home to their villages on foot in the absence of public transport or any government help. Unfortunately, hundreds of thousands of people have lost their job and many others are on the verge of losing their employment due to the current COVID-19 pandemic.

The International Labour Organization (ILO) in its latest report said, “No matter where in the world or in which sector, the crisis is having a dramatic impact on the world’s workforce.” It further said, “In absence of appropriate policy measures, workers face a high risk of falling into poverty and will experience greater challenges in regaining their livelihoods during the recovery period.” Almost 25 million jobs could be lost worldwide as a result of COVID-19.

Right to work

Globally the Constitution or other relevant laws of the land ensure a fundamental right to work. Article 34 of the 2015 Constitution of Nepal envisages that every labourer shall have the right to proper work. Right to work has been recognized by the internationally binding instruments as well. In this context, Article 23 of the Universal Declaration of Human Rights (UDHR), 1948 envisages that everyone has the right to work, free choice of employment, just and favourable conditions of work and protection against unemployment. The right to work morphed from a mere state value to an individual human right with Article 23 of the UDHR. This provision not only protects the right to work, but also obligates states to provide the right to compensation while unemployed. This international obligation has been badly affected due to coronavirus lockdown. The small scale industries’ employees or daily wage earners’ have lost their right to just and favourable remuneration which is protected under Article 23(4), UDHR, 1948. Not only right to work but other fundamental rights, which are required to lead a dignified life, have also been badly affected in this COVID-19 lockdown.  

What is pandemic justice?

Pandemic justice may be understood as an attempt to establish a dynamic link among pandemic, politics, and law to raise a collective voice for humanitarian challenges faced internationally. The researchers argue that a pandemic is an epidemic occurring over a very wide area, crossing international frontiers and usually affecting a large number of people. The studies suggest that most of the new pandemics have originated through the ‘zoonotic’ transmission of pathogens from animals to humans.

Merriam Webster’s dictionary defines justice as the maintenance or administration of what is just especially by the impartial adjustment of conflicting claims or the assignment of merited rewards or punishments. Simply put, justice is the quality of being just, impartial, or fair. It’s more in the nature of ‘due process’, that is just, fair and reasonable. Though the words ‘pandemic’ and ‘justice’ cannot be defined ‘exhaustively’, the terms when studied together may provide an ‘inclusive’ definition. The pandemic justice may include a fair adjustment of rights and duties of the people and state (during an outbreak) in a democracy which aims to guarantee legitimate expectations of the citizens living under the constitution.

The statutes and scholars are yet to provide a definition of pandemic justice and an authoritative definition of the term pandemic justice is yet to be found. However, a prudent mind may define it as a science of epidemic/pandemic that aims to upright the legitimate expectations of the people in an outbreak.

Julius Stone, professor of jurisprudence, has rightly observed jurisprudence as “the lawyer’s extraversion”, meaning thereby jurisprudence involves the examination of precepts, ideals and techniques of the law by lawyers in the light of disciplines other then the law. It is for this reason this branch of philosophy aims to investigate the nature of law, and its relation with human values, attitudes, practices, and political dimensions. So, it is unbecoming to ignore the human concerns during an outbreak and to consider pandemic and law as two different streams, i.e., former as part of medicinal science while the latter as a branch of social science. Its high time we realized that there is a need for evolving pandemic justice as an independent subject and ‘lawyer’s extraversion’ could provide an insight in this regard.

With the help of pandemic justice, we would be able to critically look at the questions of pandemic and its inter-linkages with various subjects, like that of economics, politics, medicine, sustainable development, environment or law; how these disciplines mediate and secure the rights and concerns of the people and enterprises in different ways during an outbreak. Therefore, a pandemic may be of medical nature, its issues could be resolved legally.  
Pandemic Justice could be taught both as an individual course of study as well as an elective or concurrent course in LLB and LLM. Besides, pandemic justice also falls within the realm of Disaster Law. So, what should be the pedagogy focus upon? The classifications of infectious diseases - outbreak, epidemic, and pandemic - need to be looked in a holistic and structural manner that makes us realise that the rights and concerns of the people are intertwined rather than separable.

Moreover, the pandemic justice studies in university curricula could be inclusive, covering the issues of compensatory jurisprudence by acknowledging the concepts of ‘Parens Patriae’; the interface of justice in health emergency-like situations; judicial activism, international conventions, et al. In fact, pandemic justice could initiate discourse, dialogue, and debate as to the recognition and implementation of international commitments expressed at different conventions, like 1994 Yokohama convention, 2005 Hyogo convention, 2015 Sendai framework or Sustainable Development Goals. Also, it could initiate a debate as to the adoption of comprehensive legislation to deal with the outbreak or bring an amendment in existing pandemic legislation in compliance with international laws.

Risk governance system 

The incorporation of pandemic justice in university curricula may embolden opportunities for medical doctors, virologists, bacteriologists, lawyers, jurists, sociologists, political scientists or economists to come together and devise a pandemic response to the mechanism for vulnerability reduction, crisis preparedness, and holistic regime for disaster risk reduction and mitigation.

As the current outbreak of coronavirus is in the nature of the disaster, the pandemic justice could initiate a debate as to the recognition of commitments of international conventions in domestic laws and policies in order to think for a safer world.

So, with the recognition of international obligations, the states could adopt a unanimous disaster/pandemic risk governance system to enable disaster preparedness and risk reduction mechanisms. As disaster conventions oblige the states to compensate the people against the loss caused due to an outbreak, the pandemic justice could ignite a debate for bringing laws guaranteeing fair compensation to the vulnerable citizens and business enterprises. After all, a welfare state cannot behave like a silent spectator at the time when it's natural or juristic persons fall prey to a crisis.

In the time of an outbreak, the Supreme Court could set up its different benches at different places. For instance, Article 130 of the Constitution of India states that the Chief Justice of the Supreme Court may, with the consent of the President of India, cause benches of the Supreme Court to be set up in different places. India is yet to invoke this provision. Perhaps, in an outbreak, it would be imperative to give life to this provision. It would give an option to litigants, who do not reside in New Delhi or don’t wish to travel, to seek a remedy through the highest court. Similarly, the case hearing could be done through video conferencing and the petitions could be filed through email and statements could be recorded through digital means in health emergency-like situation. The active role of judiciary or judicial activism amid an outbreak could also become a subject of discussion in pandemic justice.

Need for pandemic law

In university level, law students, while studying pandemic justice, could be made aware of the possible impacts of a pandemic on fundamental rights. For instance, the fundamental rights relating to trade, commerce, health, education, information, food, education, or consumer or right to work are in perilous condition with the onset of COVID-19.

The global spread of the COVID-19 has given a message to the world that the global attention and action is required to combat a pandemic against which no country - however powerful or developed - has been able to develop a total protection mechanism. This message could be acknowledged under the legislation.

Furthermore, the international best practices could be adopted at home. For instance, England’s Coronavirus Act, 2020, which features as many as 102 Sections and 29 Schedules, envisages a sunset clause (Section 89) which says that 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 Acts hosts a plethora of progressive provisions, like indemnity against clinical negligence claims for healthcare professionals assisting in the response to the outbreak, audio-visual conferencing in a court proceeding, or compensation to the victims of coronavirus. It shows the state’s strong commitments in the fight against the virus. This way, a comprehensive pandemic law could oblige the states to set a target of eradicating an outbreak in the future within a given time frame - just like England’s Coronavirus Act.

The apex courts of Nepal and India could play a significant role in this regard. In MC Mehta vs. Union of India (1991) the Supreme Court of India gave directions that the environment should be taught as a compulsory subject at every level of education and that the University Grants Commission (UGC) should prescribe a course on the environment a compulsory subject in college education. A similar welcome directive could be made in case of pandemic justice.    

This way, there is a dire need of evolving pandemic justice as a subject in university curricula, for a democracy deserves to adopt a utilitarian approach by giving a humanising touch in providing pandemic justice to society.

(The writer, a former law lecturer at Kathmandu University School of Law, is a Judicial Officer, Birgunj High Court, Nepal. The views expressed are personal. He can be contacted at jhajivesh@gmail.com)