The COVID-19 pandemic and the response to it by different states are having an unprecedented effect on the functioning of justice systems globally. Nepal is certainly not immune to it. The Government of Nepal imposed a lockdown to combat the outbreak of the pandemic but some essential services have been often overlooked. This includes legal services. Rule of law is important and needs to be ensured at any cost. There should not be any compromise in due process of law, equality before the law, and promotion as well as protection and enforcement of basic human rights. The rule of law, which the new Constitution of Nepal has recognized as the backdrop of democracy, should be in full compliance and followed as a mantra.

Neither the courts nor traditional justice actors are in full operation. Human rights oversight bodies are also operating partially along with all other relevant human rights institutions. Hence, it is time to think innovatively to address these issues and envision alternative means of continuing necessary legal services.

Impacts of the Crisis on Legal Services and Access to Justice:

Mainly health and socioeconomic sectors are prioritized during a crisis like COVID-19. However, the fact that  certain groups are more vulnerable than others during such crises must be taken into account. Women, children, detainees, marginalized communities, persons with disabilities, sexual minorities, senior citizens, daily-wage workers, and migrant workers are highly affected. These sections of the population have been subject to various forms of violence and discrimination, and have been deprived of livelihoods and access to justice. Neglecting them during this crisis will put them further behind in society.

Currently, the courts are adjusting their operations; this can negatively impact the provision of timely and fair hearings, contribute to increased case backlogs, and lead to increased lengths of judicial and administrative proceedings. Only immediate and priority cases (i.e. writ jurisdiction and on the applications for habeas corpus) are being heard by the court. The case management system is likely to be a critical issue in the days to come

As part of the COVID-19 response, the three tiers of government have established quarantine centers to contain the people coming from abroad. It is reported that even basic standards—in accordance with the International Health Regulations (2005)—are not maintained in some of these facilities. There is a need to make sure that quarantine and travel bans comply with the international human rights norms.

There are numerous issues reported in relation to domestic violence, stigmatization, and discrimination during the ongoing crisis. More critically, there are a number of challenges that daily-wage laborers are facing. People working in the private sector have been forced to either abandon their jobs or to be remunerated partially.    

News reports and public health analysis suggest that COVID-19 is disproportionately affecting women in many ways, such as through increased vulnerability to domestic violence and increased psychological and physical stress due to disproportionate distribution of household work among family members. In this situation, there is a need to have more vibrant and active remedial mechanisms to mitigate gendered impacts and ensure that crisis responses do not perpetuate gender inequity.

Access to information is equally crucial in times of crises as it affects the health and lives of citizens. During the lockdown, dissemination of information to the community and targeted groups of society became critical. All information about COVID-19 and relief packages as well as information regarding legal rights should be accessible and available in multiple languages, including for those with low or no literacy.

One of the groups highly affected is detainees and prisoners. Though the government has already released about 430 prisoners, there is already a lack of robust system or criteria in this regard. There is a need to develop a comprehensive emergency plan for the detention center and prisons. 

Opportunity and the Challenge:

Every crisis comes with an opportunity. If we recall, the Judiciary of Nepal started with an open bench under tents during the last earthquake in 2015. The Ministry of Law and Justice along with the Nepal Bar Association (NBA) established mobile legal aid clinics with support from UNDP, which provided legal services to the needy and vulnerable. Besides these, the National Human Rights Commission (NHRC) introduced mobile human rights camps to monitor and provide necessary human rights counselling to the poor and vulnerable. This is a time to think differently to introduce measures and means to continue court and legal operations for the needy and vulnerable even during and post COVID.  

Information, Communication, and Technology (ICT) is one of the means that law enforcement agencies should be aware of and be active in introducing and institutionalizing online and remote court systems. It also requires the digitalization of the case management and online hearing for which all the justice sectors need to work together. ICT is applicable not only in court but also in all the key actors of law enforcement agencies. Hence, a joint strategy to address the crisis might be a useful framework to bring all the stakeholders on board as we know that it requires integrated efforts. Besides the court and law enforcement agencies, clients and witnesses also need basic support on ICT. Clients should also have access to the online case management system.

Personal protective equipment (PPE) should be provided to all justice sector actors, as well as defendants and accused who attend court hearings or in closed settings, as far as possible. Necessary policies and procedures must be established for remote hearings, including processes to determine priority cases.

Lawyers have an important role in this regard. They can represent different groups of people when they are unable to secure access to essential services. The paralegals can support the efforts on legal empowerment by providing access to information on rights and guidance on how to access benefits. The NBA needs to introduce necessary hotlines and should be well-equipped with up-to-date information on solutions and protection measures. The Attorney General Office can also introduce remote monitoring of prisons, correction centers, and detention centers.

Under the recovery packages, the justice sector institutions should develop a recovery plan and consider reinforcing capacities of justice sector actors to respond to the situation in a way that renews trust in institutions. The legal empowerment strategy must be developed to address the impact of the crisis.

Take Away:

The Constitution of Nepal, which contains a number of human rights as fundamental rights, has established Judicial Committees in each of the 753 local level units. Despite these provisions, people still have less access to justice during the crisis. There is no preparedness in terms of normative frameworks to deal with such an unexpected and unpredictable crisis. The online system too is not yet internalized into government administrations.  

At the community level, oversights and interventions are needed to make the law enforcement agencies more accountable towards legal duties and obligations. The paralegals can play an important role to impart legal information to the people and empower people to claim their rights even during the crisis.

Finally, the law enforcement agencies should work towards developing a business and continuity plan and an ICT system to introduce online and virtual court systems. Although this requires huge resources and technical expertise, such efforts are important in demonstrating commitment. In addition, a crisis response plan can be developed to initiate a dialogue/discourse towards making the justice system modernized.