How, in different settings, have dominant political regimes and ideologies shaped COVID-19 preparation and response?


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May 1, 2020

Labor histories 

  • Somesh Jha (2020) writes in the Business Standard that for the first time in 100 years, Indian workers will have to work for 72 hours per week up from 48 hours as five states (Gujarat, Madhya Pradesh, Haryana, Himachal Pradesh, Punjab) have amended a labor law for 3 months. Jha gives us a brief legal history of labor law around the working day. Factory Act of 1881 under British rule put a cap on 72 hour work week (12 hours a day for 6 days a week maximum). This act has a global history: pressure from mill owners in Lancashire feared that they were losing out to Indian textile industry. Also part of a world-wide labor struggle for a working-day. In 1886, the Haymarket square protests in Chicago resulted in a clash between protestors and police on May 1, which we celebrate as the May Day. The concept of 8-hour work day based on three divisions of a day: 8 hours for work, 8 hours for sleep, 8 hours for recreation. In 1922, the Factory Act was amended to reduce working week to 60 hours. This happened after India became an ILO signatory of 1919. Other signatories reduced their work weeks to 48, but India was exempted. After the Great Depression, the Royal Commission on Labour submitted a report in 1931 suggesting a further reduction to 54 hours. This change occured in 1934. But because of the WWII, Indian factory workers again worked 60-hour weeks. BR Ambedkar, architect of India's constitution, became a Labour Member to the Viceroy's Council in 1942, advocating for 8-hour working day and 48-hour working week.

To compensate the loss in production, state governments have amended this labor law, a result of decades-long labor struggles. Because India's COVID measures are very stringent, this has resulted into unemployment as well. It was started by the Congress-ruled Rajasthan government which amended the Act to raise working-day to 12 hours. The extra hours will be treated as overtime and workers will be given double wages for overtime. Congress-ruled Punjab government followed suit. PM Modi asked other states to follow this. BJP-ruled states of Gujarat and Himachal Pradesh did not double wages, but will pay workers in proportion to hours worked overtime. These states also invokved "emergency" law under operation during wartime. This puts undue pressures on especially women workers, who are employed in the essential industries of pharma, textiles, and food processing in large numbers. India's working hours are already one of the longest in the world. 

Emergency law in South Asia 

  • Himal Southasian interview (Mar 2020) with Asanga Welikalalecturer in public law at the University of Edinburgh and a constitutional-law expert. This point is a summary of his interview. He first distinguishes between "state of emergency" and "emergency regulations". The former arise from eminent domain, or the fundamental assumption that the state will act in the public interest. It is a "special regime of of powers and rules" that is brought when the sovereignty and internal cohesion of a nation-state is under threat. The latter are rules that the government makes under a state of emergency. While emergency laws in South Asian states share origin with imperial power and thus the English common law, the pathways have diverged, influenced by years of military rule (Pakistan and Bangladesh), internal conflict (India and Sri Lanka). Democratic constitutions different from authoritarian constitutions as they have to distinguish between states of normalcy and exception and insert that into the legal framework. The core tension is between liberty and security. So for democracies to invoke emergencies is not simple. They have to: declare a state of emergency by identifying an exceptional threat to public good, provisions for extending that state requiring parliamentary approval, a deadline for termination of emergency. However, emergency law can be normalized. He speaks of the Sri Lankan example, when emergency became the normal rule, and used to regulate matters not connected to emergency such as prices, weights, and measures. Protracted emergency rule also builds up a culture of "executive convenience and impunity" [like what Modi has being doing since 2014]. The accountability falls to the legislature or judiciary in a tripartite system, and the results for that in South Asia are quite varied. South Asia has one of most activist judiciaries when it comes to protecting individual rights and freedom (liberty).

So what does this mean for COVID19 pandemic and imposition of emergency law? Australia shutdown Parliament till August. Canada gave its parliament public spending power without parliamentary scrutiny till December, same for UK. Intensification of suppression in Israel and Hungary. What commitment do South Asian states and their subjects have to constitutional democracy?