SOUTH ASIA || Will states of emergency become the new normal?

Shraddha Pokharel, APMA 2019

 

Amid the COVID-19 crisis, governments in South Asia implemented extended periods of lockdown, which includes the continued closure of non-essential services, public transportation, and curfew regulations. Such a response to a pandemic is deemed necessary, as it prevents large gatherings that can result in the spread of the virus, and buys time for governments for required health precautions. However, regulations that enforce limitations on freedom and association should be enacted through a legally declared emergency – a requirement that countries in South Asia have failed to adopt in dealing with the ongoing crisis.

The suppression of individual freedom and association in grave situations is recognized in many national constitutions and international human rights instruments, as long as it is justified as crucial to protecting the community as large.  Disavowal of the rule of law and procedure is a worrying development as it not only bypasses due process and evades accountability, but also sets a bad precedent that can have a long term impact on democracy.

Along with restrictions on movement, since the COVID-19 outbreak, governments in South Asia have limited free speech and exerted media control, severely curtailed labor rights, and denied cultural and religious freedom. While these are derogable rights, liable to curtailment under conditions of emergency as per national and international mechanisms, governments in the region have not followed due process required to execute these regulations. Emergency protocols need to be brought into force by a positive act; its requirements include the declaration of emergency so that everyone is aware of the guidelines and regulations. Also necessary is the delimitation of the timeframe of the state of emergency, and finally, the procedure for the extension of the period of emergency. However, none of the countries in South Asia have followed these steps.

In Nepal, several individuals have been arrested using the draconian Electronic Transaction Act (ETA), allegedly for spreading misinformation and disrupting government COVID-19 related efforts. The existing provisions are being selectively used to target dissidents who expressed their concerns about the government’s handling of the outbreak on social media. The punishment has been more severe in incidents of political criticism and satire than in cases of misinformation. A former bureaucrat, who is an outspoken critic of the government, is believed to have been imprisoned for implying government complicity in corruption, related to the importation of COVID-19 test kits from China. Likewise, journalists have been detained, and interviews have been removed for criticizing the government. This growing intolerance of the media has been openly expressed by the prime minister of Nepal, who often accuses them of threatening the country’s stability and development.

Similarly, the inspector general of Sri Lanka issued an order in early April which instructed the police to detain anyone found sharing fake and malicious content and criticizing officials involved in COVID-related responses. This has led to the arrest of at least 17 individuals. The police have also detained hundreds who have violated curfew regulations. Although misinformation can pose a great threat in curbing a crisis, the measures taken must be lawful, proportionate, and non-discriminatory. The legal basis cited by the police for making those arrests are questionable, according to the National Human Rights Council of Sri Lanka.

Yet another worrying development regarding free expression is the controversial policy on funeral rites of COVID-19 victims. Although the World Health Organization (WHO) recommends both burial and cremation as a safe means of disposal of those who passed away due to the virus, the government of Sri Lanka has made the latter mandatory. The refusal by the government to allow Muslims to bury their loved ones is disrespecting their religious and cultural rights. This contributes to the increasing discrimination towards the religious minority post the 2019 Easter Sunday bombing.

In the weeks after the lockdown, one of the most discussed issues in India was that of the migrant workers who made perilous journeys back home on foot, many who remained stuck at state borders and others who died on the way. However, since then, labor rights have only deteriorated further, and the biggest setback is labor law amendments proposed by several Indian states. States like Madhya Pradesh have passed an ordinance and executive orders which suspend many fundamental labor rights and exempt businesses from its obligations under laws like Contract Labour Act, Factories Act, 1948, and Madhya Pradesh Labour Welfare Fund Act, 1982, for 3 years. The changes include the extension of working hours from 8 to 12, an increase in the number of contractual workers, an exemption for businesses from contributions to labor welfare, flexible hire-and-fire policies, the suspension of labor department inspection requirements, and the dismissal of trade unions for collective bargaining in several sectors. These alterations of labor laws that provide blanket immunities to the businesses work against the interest of labor workers as they compromise working conditions, health and safety mandates, and facilities, significantly weakening the workers’ position with the employers, therefore contradicting one of the principal concerns of labor rights. Since the state governments have used the excuse of the medical crisis to abrogate essential labor rights, this brings up the worrying prospect of an unaccountable and impervious state to the democratic process with potential long-term consequences.

In their exertion of extraordinary powers, governments in South Asia have gone beyond the scope of the COVID crisis management, and unlike the temporary nature of emergency measures, some changes are here to stay. As this was done without following due process – which comes with necessary checks and balances – holding the government publicly accountable is difficult since avenues of complaints, protests, and legal redressal have been delimited. Some of these are already visible with the increased role given to the armed forces in these countries. Most importantly, this evasion can seep into times of normalcy, and governments could use expanded executive power as being compatible with normal legal standards.

Photo from Reuters.

*The contents of this opinion piece are solely those of the author’s and do not necessarily reflect the view of the either Global Campus of Human Rights Asia Pacific, the universities under it, or the APMA program.

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