1.  The Islamic Republic of Pakistan is a federal republic with a codified constitution that was adopted in 1973.¹ The federation is organised as a parliamentary democracy with Parliament (Majlis-e-Shoora) comprising the President and a bicameral legislature—the National Assembly and the Senate (Article 50 of the Constitution). The National Assembly comprises 336 seats out of which 266 are filled by direct elections, 60 seats are reserved for women, and 10 seats are reserved for religious minorities (Article 51 of the Constitution). The Senate consists of 96 members—including seats reserved for women and religious minorities—who are elected by the members of each Provincial Assembly and the Federal Capital (Article 59 of the Constitution). The President is the head of the state elected by members of both houses and members of the Provincial Assemblies (Article 41 of the Constitution). However, the chief executive of the federation is the Prime Minister (Article 90(1) of the Constitution) who is directly elected from the National Assembly (Article 90(4) of the Constitution). Although the executive authority of the federation is exercised in the name of the President (Articles 90(1) and 99(1) of the Constitution), he is bound to exercise his functions on the advice of the cabinet or the Prime Minister (Article 48 of the Constitution). Thus, the President’s role as head of state is ceremonial only, while true executive authority over the Federation lies with the Prime Minister and his cabinet of ministers (Article 90(1) of the Constitution).²

2.  The sub-federal jurisdictions consist of four provinces (the Punjab, Sindh, Balochistan, and Khyber Pakhtunkhwa), the Islamabad Capital Territory (ICT), the Federally Administered Tribal Areas (FATA), and such states and territories as may be included in Pakistan by accession or otherwise (Article 1(2) of the Constitution). Although governed independently through their own constitutional frameworks, the territories of Azad Jammu & Kashmir (AJK) and Gilgit-Baltistan (GB) are de facto under the administrative control of Pakistan. The provinces, like the federation, adopt a parliamentary form of government albeit with a unicameral legislature (Article 106 of the Constitution). The executive authority of each province is exercised in the name of the Governor (Article 129(1) of the Constitution) who is appointed by the President on the advice of the Prime Minister (Article 101 of the Constitution). Each Provincial Government comprises of a cabinet of ministers headed by the Chief Minister who is directly elected from the Provincial Assembly (Articles 129 and 130 of the Constitution). The Governor is bound to act on the advice of the provincial cabinet or the Chief Minister (Article 105 of the Constitution). Each province has enacted legislation to establish a Local Government system devolving political, administrative, and financial authority to elected representatives of the local Government (Article 140A of the Constitution).³

3.  Federal laws consist primarily of statutes enacted by Parliament and ordinances promulgated by the President. The passage of statutes largely mirrors the Westminster model. Noteworthy features of the President’s ordinance-making powers are that, besides being subject to the advice of the Prime Minister, they are exercisable only when Parliament is not in session and in circumstances which require immediate action (Article 89 of the Constitution). Ordinances stand automatically repealed 120 days after their promulgation unless disapproved earlier by a resolution of either house. They are mandatorily laid before Parliament and can either be extended once for a further period of 120 days or converted into Acts of Parliament (Article 89(2) of the Constitution). The same dynamic operates in the provinces with the only difference being that statutes are enacted by a unicameral legislature (the Provincial Assembly) and ordinances are promulgated by the Governor of the province (Article 128 of the Constitution).

4.  The exercise of legislative and executive powers is constitutionally interlinked: the executive authority of the federation and the provinces extends to matters over which each has legislative competence (Articles 97 and 137 of the Constitution). The distribution of legislative competence—and thus, by extension, executive authority—between the federation and the provinces witnessed a paradigm shift in 2010 when, pursuant to the 18th Amendment to the Constitution, significantly wider competences were transferred to the provinces.⁴ Prior to 2010, the subject-matter of legislation was enumerated in the Federal Legislative List (FLL) and the Concurrent Legislative List (CLL). The federation had exclusive competence over the subjects enumerated in the FLL and concurrent competence with the provinces over those enumerated in the CLL. The provinces also had residual jurisdiction over the subjects that did not figure in either of the two lists. The 18th Amendment to the Constitution abolished the CLL and thus enhanced provincial competences by conferring jurisdiction upon the provinces over all subjects other than those enumerated in the FLL (Article 142 of the Constitution).

5.  This redistribution of powers, read with the constitutional preference given to federal laws in case of inconsistency with provincial laws (Article 143 of the Constitution), has often been viewed as reflecting a culture of cooperative federalism.⁵ This view is further strengthened by the fact that the Constitution prevents a province from exercising its executive authority in a manner that impedes or prevents the federation’s exercise of executive authority (Article 149(1) of the Constitution). Another important provision in this respect is made to empower the federation to direct a province as to the manner in which it is to exercise its executive authority ‘for the purpose of preventing any grave menace to the peace or tranquillity or economic life of Pakistan or any part thereof’ (Article 149(4) of the Constitution).

6.  Following the 18th Amendment, the Federal Government retained competence over the medical profession, international treaties, and, significantly, inter-provincial matters and co-ordination (Schedule 4 to the Constitution). ‘Public health’ on the other hand is not found in the FLL and is thus a provincial subject; it has, in fact, always been a provincial subject even under previous constitutional frameworks.⁶ Although all provinces therefore had autonomy to deal with the pandemic, the actual response was marked by heightened cooperation with and guidance from the Federal Government. This was driven in part by the Supreme Court’s repeated calls for a unified national response to the pandemic (see Part III.C below).

7.  This report focuses on the federation and two provinces—the Punjab and Sindh. The Punjab is not only the most populous province of Pakistan but, as a consequence of its size, also dominates political decision-making at the federal level. Sindh is home to Pakistan’s largest and most populous city, Karachi, and was also the first province to report a Covid-19 infection. Sindh therefore took the lead in formulating the first response mechanism to the pandemic. It is also the only province that is presently governed by a political party that forms part of the opposition at the federal level, while the other three provinces are governed by the ruling party forming the Federal Government.

8.  The pandemic did not result in any change in the basic constitutional arrangements. As indicated above, it did prompt heightened coordination and cooperation between the provinces and the federation, but this is strictly within the four corners of the constitutional framework.

9.  Declarations of emergencies have a chequered history in Pakistan. Emergency powers have typically been invoked in the immediate aftermath of or in pursuance of each of the four military coup d’états that the country has witnessed. While provision has always been made within the past and present constitutional frameworks for declaring emergencies, such declarations have always been triggered by or under the influence of extra-legal measures. Under the present framework, Article 232 of the Constitution provides for a proclamation of emergency which the President may issue if he is satisfied that a ‘grave emergency’ exists. The act of issuing such a proclamation amounts to a function under the Constitution and is thus exercisable only on the advice of the cabinet or the Prime Minister (Article 48 of the Constitution). The circumstances constituting a grave emergency are limited to a threat of war or external aggression, or internal disturbance beyond the power of a Provincial Government to control. The President also has the power to proclaim a financial emergency under Article 235 of the Constitution after consultation with the Governors of Provinces, if the economic life, financial stability, or credit of Pakistan is threatened. However, no proclamation was issued either under Articles 232 or 235 in response to the effects of Covid-19.

10.  The effect of a proclamation of emergency is that Parliament acquires the additional power to legislate for the provinces on any matter not listed in the FLL (see Part I above). Similarly, under Article 232(2)(b) of the Constitution the executive authority of the federation extends to directing provinces as to the manner in which they are to exercise their executive authority during the emergency. Notwithstanding the fact that a formal emergency under Article 232 was not declared to counter the pandemic, the federation did nevertheless assume wider powers by giving directions to the provinces. The source of these powers is Article 149(4) of the Constitution, which extends the executive authority of the federation to give such directions to provinces as are necessary to prevent ‘any grave menace to the peace or tranquillity or economic life of Pakistan or any part thereof’. Crucially, during the course of its suo motu proceedings to combat Covid-19 (see Part III.C below), the Supreme Court declared that the Covid-19 pandemic constituted such grave menace. Thus, in effect, Article 149(4) of the Constitution enables the Federal Government (the Prime Minister and his cabinet) to issue executive directions to the provinces as to the manner in which they are to exercise their own executive authority in countering the pandemic.

11.  Pakistan has been a State Party to the World Health Organization’s (WHO) International Health Regulations 2005 (IHR) since 15 June 2007. The country is thus under a direct obligation to ‘prevent, protect against, control and provide a public health response to international diseases’. While the IHR have not been transformed into national law, the commitment made thereunder has continued to have an impact on law-making in Pakistan during the pandemic (for example, see Part II.C below).⁷

12.  In developing its response to the pandemic, Pakistan did not derogate from any of the provisions of international conventions.

13.  Given that public health has traditionally been a provincial subject (see Part I above), each province formally relied on its own legislative framework to respond to the pandemic. Despite there being no legislation of a federal character to deal with public health emergencies or epidemic diseases, all provinces had, after the 18th Amendment to the Constitution, adopted the erstwhile West Pakistan Epidemic Diseases Act, 1958 as provincial law. This law empowered each Provincial Government to ‘take such measures’ or prescribe such ‘temporary regulations’ as deemed necessary in response to a threat of an outbreak of any disease.⁸ It had been adopted verbatim by the Punjab as the Punjab Epidemic Diseases Act, 1958, and with formal amendments by Sindh as the Sindh Epidemic Diseases Act, 2014.⁹ While Sindh developed its response to the pandemic by relying on and amending this statute, the Punjab chose to introduce and rely on new legislation, as detailed below. Notwithstanding the difference in their statutory regimes, the exercise of powers by both provinces was somewhat uniform, owing in large part to greater federal-provincial cooperation prompted by the Supreme Court (see Part III.C below).

14.  On 27 March 2020, the Governor of the Punjab, in exercise of his powers under Article 128 of the Constitution, promulgated an ordinance empowering the Secretary of the Primary and Secondary Healthcare Department (P&SHD), with the approval of the Chief Minister, to make a declaration of a ‘serious and imminent threat to public health’.¹⁰ On 1 April 2020, the Secretary P&SHD made such a declaration with respect to the Covid-19 outbreak.¹¹ A number of health protection measures imposable by the Secretary P&SHD and the Director General Health were specified in the ordinance.¹² The Director General Health was given significantly wide powers in respect of controlling events, gatherings, and premises, which extended to ordering closure of or restricted entry into certain premises and areas.¹³ Perhaps the most controversial powers were those conferred upon a notified medical officer pertaining to ‘control of potentially infectious persons’ (see Part IV below).¹⁴ The ordinance formally repealed the Punjab Epidemic Diseases Act, 1958.¹⁵

15.  Thus, the Punjab’s initial response to the pandemic was based on the powers conferred under the ordinance, which was laid before the Punjab Assembly one month after its promulgation.¹⁶ It was eventually adopted, without amendment, as the Punjab Infectious Diseases (Prevention and Control) Act, 2020.¹⁷ There were a total of 68 days and 17 sittings of the Punjab Assembly from the introduction of the ordinance and its passage into statute law. A standing committee’s report had been sought by the Assembly, but the enactment was fast-tracked in view of the committee’s failure to present its report within the specified period of two months.¹⁸ There is neither any sunset clause in the Act, nor is the nature of the powers temporary in any sense other than being exercisable during the subsistence of a (declared) public health emergency. There was no opposition to the legislation as such from any quarters, though some public health measures imposed through the newly conferred powers have been the subject of debate and controversy (see Part IV below).

16.  By contrast, the Sindh Government relied on the pre-pandemic Sindh Epidemic Diseases Act, 2014 to respond to the threat posed by Covid-19.¹⁹ This general law empowered the Government to take special measures and prescribe temporary regulations to be observed by the public or by any class of persons to prevent the outbreak and spread of any disease. Measures could be aimed at, inter alia, the inspection of travellers and segregation of persons suspected by the inspecting officer of being infected.²⁰ Crucially, the Government could also delegate these powers to a deputy commissioner in relation to a particular district.²¹ Throughout the months of March and April 2020, the powers conferred under the statute were exercised to curb the spread of the virus. On 13 May 2020, the 2014 Act was amended through an ordinance promulgated by the Governor in exercise of his constitutional powers (Article 128 of the Constitution).²² In substance, the amending ordinance permitted the Government to further delegate the wide powers—previously delegable only to a deputy commissioner—to an assistant commissioner or any other officer. It further provided for heavier fines on individuals and institutions who violated orders passed under the 2014 Act.²³ On 4 June 2020, the amending ordinance was laid before the Sindh Assembly.²⁴ This was followed immediately by a presentation of the report of the Standing Committee on Law and Parliamentary Affairs.²⁵ It thus took two sessions for the amending ordinance to get approved by the Sindh Assembly as a bill, without amendment, but a total of 33 days before the bill formally received the Governor’s assent and was notified as an Act on 15 July 2020.²⁶ Much like the Punjab, there was no opposition from human rights groups or opposition parties to the passage of legislation in Sindh.

17.  The Federal Government’s response to the crisis has been driven almost entirely by the use of executive powers consisting primarily of directions given from time to time by a special committee and the issuance of a policy document. This has been so despite the Supreme Court’s call for legislation to develop a unified national response to the pandemic (see Part III.C below).

18.  Initial responsibility for developing a response strategy was assumed by the National Security Committee (NSC) of the Federal Government. The NSC is chaired by the Prime Minister and comprises members of the cabinet as well as senior members of the armed forces. It forms part of the National Security Division of the Government and its business primarily entails developing a national security policy.²⁷ On 13 March 2020, the pandemic prompted the NSC to meet and address a health crisis for the very first time since its inception. The decisions taken during this first meeting have served as the foundation of the Federal Government’s response to the pandemic.²⁸ Chief among these was the constitution of a National Coordination Committee (NCC) on Covid-19 comprising ministers from the Federal and Provincial Governments, as well as senior members of the armed forces which was tasked with developing a strategy to curb transmission of the virus and to mitigate its effects.

19.  To this day, the NCC on Covid-19 remains ultimately responsible for all federal directions issued and decisions taken to control the spread of the virus, including the imposition of lockdowns, school closures, etc. The National Disaster Management Authority (NDMA), already established and functional under the National Disaster Management Act, 2010,²⁹ was nominated as the NCC’s lead ‘operational agency’. Although the NDMA has wide statutory powers that could have enabled it to take charge in responding to the pandemic, its role was never enlarged, partly because in practice it had been more proficient at leading relief efforts against natural disasters such as floods and earthquakes rather than devising preventative measures. Instead, the NDMA has primarily served as a procurement agency during the pandemic. The real driving force that has shaped the content of NCC’s directions is the National Command and Operation Centre (NCOC) which is housed in the NDMA. The NCOC, though described as the body that ‘implements’ the NCC’s decisions, is actually a forum through which recommendations are made to the NCC based on data received from all over the country, and it is thus viewed as the core decision-maker that has shaped the response to the pandemic.³⁰ Its establishment received broad support from all quarters, including the military, as being vital to ensure ‘national unity’ against the pandemic and ‘effective coordination’ between the Federal and Provincial Governments.³¹ Although there is no formal instrument detailing its membership, the forum is co-chaired by the Federal Minister for Planning, Development and Special Initiatives, and by a senior military leader who is designated as the ‘chief coordinator’. It further comprises representatives from Federal and Provincial Governments, senior bureaucrats, nominees of the military and intelligence agencies, as well as the Special Advisor to the Prime Minister (SAPM) on health. The NCOC convenes daily to chalk out and appraise national strategies for testing, tracing, quarantining, as well as enforcement of all kinds of restrictions (lockdowns, closures of schools, etc.) and publishing of daily situation reports.³² It remains ultimately accountable to the Federal Government’s NCC on Covid-19, which more often than not adopts the NCOC’s directions verbatim.

20.  Apart from the NCC’s directions and the NCOC’s recommendations, the Federal Government’s Ministry of National Health Services, Regulations and Coordination also published a policy document, titled the ‘National Action Plan for Covid-19’, to provide guidance for mitigating and containing the virus.³³ The aim of this policy document was to develop national preparedness and a unified response plan for Covid-19 under the Global Health Security Agenda, as well as to implement the WHO’s IHR.

21.  In the Province of Punjab, executive directions have proved to be the Government’s mainstay in dealing with the pandemic, though the discretion conferred upon the relevant authorities is more structured than the modalities of the NCOC. During the first four months of the initial outbreak, authority for imposing public health measures stemmed directly from the ordinance promulgated by the Governor, after which it was adopted as an Act by the Provincial Assembly (see Part II.B above). The Punjab Infectious Diseases (Prevention and Control) Act, 2020, like the ordinance, delegates considerable powers to three Governmental institutions and individuals. Firstly, the Secretary P&SHD is delegated the power to make and revoke a declaration, by notification in the official gazette, that Covid-19 is a serious and imminent threat to public health in the Punjab. The Secretary P&SHD also has the power to ‘impose duties’ on medical practitioners and health facilities in the province to record, communicate, and treat cases of Covid-19, as well as to ‘confer functions’ upon Government officers to monitor and control the public health risk.³⁴ The Secretary may also impose restrictions or requirements related to persons, things, or premises enumerated in the Act.³⁵ Secondly, the Director General Health has the power to issue directions to control events, gatherings, and premises.³⁶ He additionally has the powers to ensure in appropriate circumstances that a minor does not attend school, and to regulate burials.³⁷ Thirdly, the Act empowers medical officers notified by the Secretary P&SHD to issue directions to ‘potentially infectious persons’ to subject them to screening and assessment as well as to move them to (and retain them at) a suitable place.³⁸

22.  The powers noted above have been used extensively in the Punjab to implement public health measures. Since the declaration of Covid-19 as a public health threat, the P&SHD as well as the office of the Director General Health have issued a plethora of orders and notifications relating to the imposition, revocation, and/or reimposition of restrictions in the province (see Part IV below). These executive powers have also been utilized to issue detailed ‘standard operating procedures’ (SOPs) on social distancing, hygiene, etc, for shopping malls, markets, eateries, places of recreation, schools, workplaces, etc, as well as guidelines for home isolation and quarantine. The Punjab Infectious Diseases (Prevention and Control) Act, 2020 also provides for the making of rules to further the purposes of the Act, but no efforts have been made thus far to frame such rules. While the Act does contain a widely worded ouster clause,³⁹ judicial review remains available in principle since courts have consistently held that ordinary statutes are incapable of precluding the constitutional jurisdiction of the High Courts, which is where the power of judicial review is rooted.⁴⁰ No successful challenge has been brought thus far.

23.  Executive directions have played a preponderant role in the Province of Sindh as well. While the statutory framework in Sindh (see Part II.B above) delegates wide powers to the executive, the discretion is less structured than the regime in the Punjab insofar as the Sindh Epidemic Diseases Act, 2014 allows the Government and its officials to take any measures to prevent the outbreak and spread of Covid-19. Since March 2020, orders banning individual mobility, travel, restrictions on social, religious, and other gatherings, and closure of premises within Sindh have been issued by the Home Department of the Sindh Government pursuant to the powers granted under the 2014 Act.⁴¹ These orders have also empowered the departmental secretaries for, inter alia, Industries and Commerce, the Food Regulatory Authority, and the Labour Departments, as well as deputy commissioners, assistant commissioners, and other officers of relevant districts and divisions of Sindh to issue further orders, directions, and notifications in managing the Covid-19 crisis in coordination with law enforcement agencies at the district/division level for the implementation of the same in their respective areas. The Act is free of ouster clauses, though there has not been any noteworthy legal challenge brought thus far.

24.  Although the statutory provisions under which executive directions were issued in the Punjab and Sindh do not contain any general limitation or sunset clause, the norm in both provinces was to set time limits on individual measures. The duration of these time limits has varied in both provinces, ranging from 7–15 days, and often being extended before expiration (see Part IV below).

25.  Soft-law guidance has consistently been used at both the federal and provincial levels to counter the pandemic. At the federal level the Ministry of National Health Services, Regulations and Coordination has been at the forefront, having published an advisory on mitigation strategies during the initial outbreak of the pandemic.⁴² It has also been regularly issuing detailed guidance on various aspects ranging from the correct use of face masks to guidelines for home quarantine. All such guidance is regularly updated and publicised through print, electronic, and social media, as well as being uploaded on the NCOC’s website.⁴³ Some of these comprise guidelines that have been issued in collaboration with the WHO.⁴⁴ The Government also made use of the pre-pandemic Health Protection (Sehat Tahaffuz) helpline, which had initially been set up in February 2020 to provide information related to the poliovirus and has since been upgraded to include vital information and guidance related to Covid-19.⁴⁵

26.  One unusual source of controversy arising from the use of soft-law guidance was the Government’s wide propagation of an anti-Covid slogan ‘don’t be afraid of Corona, fight it’ (Corona say darna nahi, larna hay), which was challenged in the Lahore High Court on grounds of being contrary to Islam and thus unconstitutional.⁴⁶ The challenge was based on the idea that the pandemic was a manifestation of the will of god which in terms of the preamble to the Constitution was supreme, and that any slogan calling for a ‘fight’ against the pandemic would be akin to fighting the will of god. The Lahore High Court referred the issue to the Council of Islamic Ideology for its opinion, which in turn advised the Government against using the slogan.⁴⁷ Ultimately, the petition was disposed of when, with the approval of the Council of Islamic Ideology, the slogan was changed to ‘Corona is a pandemic, care is the cure’ (Corona waba hay, ehtiat jis ki shifa hay).⁴⁸

27.  The Prime Minister has also relied heavily on informal guidance. He has addressed the nation through live television broadcasts multiple times to urge the masses to take preventive measures as well as to justify new restrictions.⁴⁹ The Prime Minister also set up a volunteer task force called the ‘Corona Relief Tiger Force’—presently comprising more than a million volunteers—which was meant to distribute rations amongst the poor and to create awareness about Covid-19, especially in areas under lockdown, although it eventually assumed more of an enforcement-related and controversial role (see further Part IV.B.1 below).⁵⁰

28.  In the Province of Punjab, one common feature of all orders passed and guidelines issued by the P&SHD was the dissemination of materials on awareness-raising with regards to Covid-19, generally encompassing etiquette for respiratory and hand hygiene as well as social distancing. Almost all the public health measures (detailed in Part IV below) had separate instructions on awareness-creation with regards to specific facilities, premises, institutions, and/or establishments. Annexures were also included for awareness material to be displayed in various places, both in the English and Urdu languages. Likewise, the Sindh Government issued advisories for creating awareness amongst individuals, healthcare professionals, hospitals, and management for the testing and screening of suspected cases of Covid-19. These extended to controlling activity within the province and management of public spaces, including banks, hotels, and guest houses. Most advisories took the form of softer, non-binding guidelines such as those for home-care of patients with history of travel in areas affected by Covid-19, contact with Covid-19 and suspected infected patients,⁵¹ and the use of personal protective equipment (PPE).⁵² Other advisories, however, including those issued for hospitals,⁵³ banks,⁵⁴ hotels, and guest houses,⁵⁵ introduced stricter preventative measures, stating that the concerned deputy commissioners may exercise authority to ensure that these preventive measures were being implemented. The manner in which the deputy commissioners could possibly implement all such measures remains uncertain because the advisories comprised both binding and non-binding measures. It also appears that the advisories were not issued under the powers granted by the Sindh Epidemic Diseases Act, 2014, but were made available to the public on the Health Department’s official website.⁵⁶ Hospitals, isolation rooms, and religious places were also directed to display all advisories issued by the Health Department in prominent places to communicate necessary information related to Covid-19.⁵⁷ In addition to this, the Sindh Healthcare Commission also provided guidance for the implementation of Covid-19 responsive measures from time to time.

29.  The federal and provincial cabinets are collectively responsible to their respective legislatures.⁵⁸ Governments at both levels require support from the majority of their respective legislatures, inasmuch as a lack of such support manifesting itself in the form of a vote of no-confidence can end a term of Government. However, since the executive dominates the composition of the legislatures, such a threat is usually considered too remote to result in any meaningful oversight. While the legislatures at both the federal and provincial levels hold some amount of authority over the executive in theory, this is often not translated into practice. The 18th Amendment to the Constitution, passed after breaking away from a military dictatorship, sought to curtail some of the previously expansive powers of the executive: the President’s powers to dissolve the Assemblies were revoked, and checks and balances were introduced to promote legislative scrutiny.⁵⁹ However, the reality is that despite the efforts of the legislature in the past decade, the executive is still dominant in the law-making process. The most glaring manifestation of the executive’s dominance is the growing trend of bypassing parliament by using ordinances to make laws.

30.  Under the Constitution, the executive (acting through the President) may promulgate an ordinance only when the Senate and National Assembly are not in session. The National Assembly can recess for a maximum of 120 consecutive days. An ordinance remains in force for a period of 120 days after which it stands repealed unless it is disapproved earlier by a resolution passed by either House.⁶⁰ After the 18th Amendment to the Constitution, the operation of an ordinance can now be extended by a resolution of either House only once for another 120 days.⁶¹ The power to promulgate ordinances has been used liberally throughout the history of Pakistan—not least because of the attractive convenience in creating binding norms in a short space of time—and the inherent democratic deficit in this practice has been the subject of debate even before the Covid-19 pandemic. In the wake of the pandemic, the executive at both the federal and provincial levels continued to rely on ordinances (as already detailed in Part II.B–C).⁶² At the provincial level, the ordinances only served as parent legislation for the executive directions that followed; these directions comprise the majority of the response to Covid-19. This is precisely why Governments have been accused of abusing the power to issue ordinances as a means of avoiding or delaying legislative scrutiny:⁶³ a detailed ordinance is drafted (on the Prime Minister’s advice) and then promulgated at a time when Parliament is prorogued. Once Parliament resumes its session, the ordinance continues to serve as valid law (for up to 120 days) unless disapproved earlier by a resolution from Parliament. During the initial outbreak of the pandemic in March 2020, federal and provincial assemblies were effectively prorogued for nearly 2 months during which an ordinance was issued in the Punjab and an amending ordinance issued in Sindh.

31.  Although the ordinances promulgated in the Punjab and Sindh were subsequently adopted as statutes by their respective legislatures, there were no substantive amendments brought about in their contents during the enactment process.

32.  As far as scrutiny is concerned, the National Assembly and the Senate constituted a Joint Parliamentary Committee on Coronavirus Disease (Covid-19) chaired by the Speaker of the National Assembly.⁶⁴ The objectives of the Committee were to review, monitor and oversee implementation of the National Action Plan and to present reports to both Houses. The success of this committee remains uncertain, given that its meetings were eventually boycotted by opposition parties alleging biased conduct on the part of the National Assembly Speaker who was affiliated with the ruling party.⁶⁵ No reports have been published yet and the Committee has not reconvened since November 2020.⁶⁶ At the provincial level, in the Punjab the Speaker constituted a parliamentary special committee for scrutiny of Covid-19 policies.⁶⁷ Initially some efforts were made by this committee to meaningfully scrutinize the Government’s strategy.⁶⁸ However, ever since the NCOC assumed charge of developing a uniform response strategy, the Committee has adopted a hands-off approach; it is yet to publish a report.

33.  As detailed in Part II.C above, the bulk of the decision-making process with regards to Covid-19 national and provincial policies has been led by a cooperative effort of the executive and the country’s military leaders under the NCC on Covid-19. This committee is spearheaded by the NCOC, thus avoiding legislative oversight. What therefore emerges is that while the legislatures do have powers of scrutiny, they have preferred not to exercise these in most cases, presumably in deference to the unified and informed efforts being led at the NCOC.

34.  Under the Constitution, a session of the National Assembly can either be summoned by the President (independently and/or jointly with the Senate) or by the Speaker with the agreement of at least one-fourth of the total membership of the lower house (Article 54 of the Constitution). The National Assembly must sit for at least three sessions every year with a maximum of 120 days between the last sitting and the date fixed for its next session (Article 54(2) of the Constitution). It is also constitutionally bound to meet for at least 130 working days each year. The 20^th Session of the National Assembly was cut short by a week and prorogued on 13 March 2020.⁶⁹ All business on that date was left over as the President had issued a prorogation.⁷⁰ The next session commenced after nearly two months on 11 May 2020. This gap was by far the longest between two sessions of the National Assembly under the tenure of the current Government.

35.  During this prorogation period a committee was formed to make recommendations for holding virtual sessions.⁷¹ However, the idea met resistance from opposition parties and was reportedly dropped since it would have required an amendment to the rules of procedure⁷² and the Constitution.⁷³ The Committee was also criticised for being a ‘conspiracy to usurp constitutional rights of the people, their representatives and democratic institutions’.⁷⁴ The main opposition party voiced criticism over the abrupt prorogation while highlighting the importance of the legislature in responding to the pandemic and called for a joint session of the National Assembly and Senate.⁷⁵ This was followed by a requisition notice initiated by the main opposition party bearing the signatures of 98 opposition members—thus comprising more than one-fourth of the total membership of the Assembly—to compel the Speaker to summon a session. Eventually, the opposition members agreed to withdraw the notice on the condition that a date for holding a parliamentary session would be announced by the Speaker.⁷⁶

36.  Following these events, the National Assembly was able to hold its sessions regularly thereafter whilst adopting the specific guidelines issued by the Federal Government for conducting sessions of Parliament, covering matters like social distancing, disinfection of surfaces, etc.⁷⁷ At the onset of the third wave in March 2021 the idea of virtual sessions was being seriously considered once again.⁷⁸ However, the National Assembly continued to hold its sessions in the regular manner and no further proposals for virtual sessions have been made while the country witnesses a fourth wave of rising infections.

37.  The Provincial Assemblies of the Punjab and Sindh faced disruption after the initial outbreak, having to go through a prorogation on 13 March 2020 that spanned over two months. Thereafter, like the National Assembly, the Provincial Assemblies have been able to meet regularly with members adopting social distancing measures.

38.  Court procedure in Pakistan is traditionally bifurcated between civil proceedings—which are governed by the Code of Civil Procedure, 1908—and criminal proceedings—which are governed by the Code of Criminal Procedure, 1898.⁷⁹ While the latter also details the different classes of criminal courts and magistrates, the classification of courts for civil proceedings is governed by the West Pakistan Civil Courts Ordinance, 1962 which stands adopted by each province.⁸⁰ The one common feature amongst all classes of courts is that their overall superintendence and control is vested in the High Court of their respective provinces.⁸¹ In turn each High Court, being the most senior court of the province and the Islamabad Capital Territory, is governed by its own Rules and Orders.⁸² The Supreme Court of Pakistan (the apex court of the country) has its permanent seat at Islamabad and a registry in each of the four provinces. More generally, in terms of the National Judicial (Policy Making) Committee Ordinance, 2002, the responsibility for coordination and harmonization of judicial policy lies with the National Judicial (Policy Making) Committee (NJPMC) comprising the Chief Justice of Pakistan, the Chief Justice of the Federal Shariat Court, and the Chief Justices of the High Courts.⁸³ The functions of the NJPMC include ‘improving the capacity and performance of the administration of justice’.⁸⁴

39.  The standard practice throughout Pakistan has been for all petitions, claims, and suits to be filed in written form with courts’ registrars. This practice has continued during the pandemic. An oral hearing in court is mandatory and there is no provision for proceedings to be conducted online, except in a very limited set of circumstances. There are, however, two notable exceptions to this: firstly, the Supreme Court provides an ‘e-court/video-link’ facility which allows lawyers and litigants to virtually participate in proceedings taking place at the permanent seat at Islamabad from one of the four provincial registries. This initiative was originally piloted in May 2019 for connecting the Sindh Registry at Karachi with the permanent seat at Islamabad before being formally launched for all provincial registries in September 2019.⁸⁵ The e-court/video-link facility had therefore matured by the time of the pandemic’s onset, and has been increasingly used since. The second exception is the introduction of ‘e-courts’ by the Islamabad High Court in June 2020 specifically in response to the pandemic in order to maintain access to justice.⁸⁶ This e-court facility is available to lawyers who, through a written request, can opt to make their submissions via Skype. Unlike the Supreme Court’s e-court facility, the system introduced by the Islamabad High Court enables lawyers and litigants to virtually participate in proceedings without having to leave their homes.⁸⁷ Although the new system did not envisage or provide for judges presiding over proceedings from their homes, it was malleable enough to allow one judge of the Islamabad High Court—who had contracted the coronavirus and was self-isolating—to adjudicate from home during his isolation period.⁸⁸ Thus far, there is no evidence of a digital divide in access to justice between users having skills in online usage and those who do not.

40.  By mid-March 2020, the High Courts as well as the Supreme Court had issued instructions and guidelines for adopting precautionary measures in court premises to curtail the spread of the virus. For instance, the Lahore High Court had, amongst other things, restricted court entry exclusively to litigants and lawyers.⁸⁹ On 19 March 2020 the Chief Justice of Pakistan, besides issuing directions for additional precautionary measures, called an emergency meeting of the NJPMC.⁹⁰ During this meeting it was resolved that courts all over the country would continue to function, but judicial workload would be reduced in view of the pandemic.⁹¹ It was also agreed that the High Courts would determine their own protocols in respect of the types of urgent cases which were to be fixed for hearing. Following this meeting, the Lahore and Sindh High Courts decided to confine their judicial business only to urgent matters.⁹² These decisions were revised periodically in view of the developing situation arising out of the pandemic and the need to ensure access to justice. The courts would therefore broaden the scope of ‘urgent matters’ incrementally.⁹³ Other notable measures taken by courts across the country were the relaxations offered in calculating the limitation periods for all causes of action.⁹⁴

41.  Each province has a High Court which acts as the highest appellate court at the provincial level. The Supreme Court and the High Courts have powers of judicial review under the Constitution that are wide enough to strike down executive acts as well as legislation. These powers are conferred upon a High Court under its ‘constitutional jurisdiction’ (Article 199 of the Constitution), which makes provision for remedies typically associated with prerogative writs as well as for issuing directions necessary for enforcement of the fundamental rights conferred by the Constitution. The High Court is thus the court of first instance in judicial review proceedings, against which an intra-court appeal may lie either before a larger bench of the High Court or before the Supreme Court. The Supreme Court, besides being the final appellate authority, also has an ‘original jurisdiction’ under Article 184(3) of the Constitution, which vests in it the same powers as are exercisable by a High Court under Article 199 of the Constitution, subject to the condition that a question of public importance, with reference to the enforcement of fundamental rights, is involved. The crucial difference between the nature of these powers is that while the High Court can exercise its powers or give such directions only ‘on the application of any aggrieved person’, the Supreme Court has the power to act suo motu.⁹⁵

42.  In fact, the suo motu jurisdiction of the Supreme Court ultimately played a dominant role in shaping the initial overall political response to the pandemic. The court took cognisance while adjudicating upon an appeal challenging the release of under trial prisoners (on bail) pursuant to, inter alia, directions issued by the Islamabad High Court.⁹⁶ The purpose of these directions was to mitigate the threat of an outbreak of Covid-19 in prisons, and the court had issued them in exercise of its inherent power under the Code of Criminal Procedure, 1898.⁹⁷ During the hearing of the appeal, the Supreme Court had directed the Federal and Provincial Governments to submit reports about the measures being taken ‘to overcome and tackle this pandemic’.⁹⁸ Ultimately the Supreme Court set aside the Islamabad High Court’s directions and recalled all bails granted in those terms.⁹⁹ In doing so, the court converted the petition into one under Article 184(3) of the Constitution (Suo Motu Case No.1/2020) and kept the ‘larger issue of combating the pandemic pending’.¹⁰⁰ On the same day, the court called for ‘emergency legislation for dealing with the issues arising out of this pandemic’,¹⁰¹ and also directed the Federal Government to: (i) set up quarantine centres at the three ground entry points of Pakistan at Taftan and Chaman in the Province of Balochistan and Torkham in the Province of Khyber-Pakhtunkhwa; (ii) ensure local manufacturing of PPEs; and (iii) devote resources for local manufacturing and supply of ventilators.¹⁰²

43.  These proceedings have thus far spanned a total of nine hearings between 7 April 2020 when the case was first registered, and 21 July 2020 when the case was ‘adjourned to a date in office’. This date coincides with when the first wave of the pandemic had subsided considerably. During this time, the Federal and Provincial Governments as well as their respective agencies would continue to file reports in response to the court’s questions and directions, detailing how each jurisdiction was responding to the pandemic. Notably, the Supreme Court struck down two executive orders during these proceedings: the first of these had been passed by the Government of the Punjab purporting to prohibit inter-provincial movement of people, which was struck down (see Part IV.A.2 below).¹⁰³ The second was the imposition of a complete commercial/business lockdown on Saturdays and Sundays imposed by the Sindh Government. The court declared this restriction unreasonable and struck it down on account of its incompatibility with the right to freedom of trade, business, and/or profession.¹⁰⁴ Another notable feature of these proceedings is that at one stage the Supreme Court had expressed its reservations on the Government’s allocation of resources in strong terms, observing that there was ‘no reason why so much money is being spent on this Coronavirus (Covid-19), for that, Pakistan is not the country which is seriously affected by it’, and that Covid-19 ‘apparently is not a pandemic in Pakistan’.¹⁰⁵

44.  Be that as it may, the court had from the outset directed all Government stakeholders at the federal and provincial levels to ‘frame a uniform national policy’.¹⁰⁶ This emphasis on uniformity was a refrain in the Supreme Court’s orders where the bench also highlighted the importance of legislation at the national level and warned that executive orders tended to violate fundamental rights.¹⁰⁷ The court also enabled the federation to give directions to the provinces by specifically declaring that the Covid-19 pandemic was a ‘grave menace to the peace or tranquillity or economic life’ of Pakistan.¹⁰⁸ This declaration provided constitutional cover to the Federal Government insofar as the Constitution expressly extends its executive authority to giving directions to a province for preventing any ‘grave menace to the peace or tranquillity or economic life’ of Pakistan (Article 149(4) of the Constitution). Thus, even though the specific measures imposed in the provinces are rooted in their own respective legal frameworks, the exercise of the executive powers granted under those frameworks has been influenced by federal directions—comprising primarily of the NCOC’s recommendations—with the Supreme Court’s observations serving as a reminder of their validity under the Constitution. Like most of its suo motu proceedings, the Supreme Court has treated Suo Motu Case No.1/2020 as a ‘continuing mandamus’ by keeping the case active under its supervisory jurisdiction (still pending at the time of writing). Although no hearings were scheduled between 21 July 2020 and 4 May 2021, the case was taken up again on 5 May 2021 when the country was confronting the third wave of rising infections. It is not entirely clear why the court scheduled the case for hearing on that date, with the entirety of the proceedings entailing a survey of reports filed by various federal and provincial agencies.¹⁰⁹ It was also ordered that the case be relisted after a month, but it has not been scheduled for hearing since.

45.  The Election Commission of Pakistan (ECP) is the body responsible for conducting elections for the National Assembly as well as the Provincial Assemblies (Article 218 of the Constitution).¹¹⁰ Since the general elections are not due until 2023, there was no major election activity expected at the time of the outbreak. However, by-elections were due to be held in order to fill some vacant seats in the National and Provincial Assemblies. Though vacancies trigger elections within 60 days (Article 224(4) of the Constitution), the ECP had to postpone them because of the pandemic.¹¹¹ The legal backing for this postponement was derived, inter alia, from Article 254 of the Constitution which provides that the failure to comply with a requirement as to time would not on its own render an act invalid. Reliance was also placed on Article 218(3) of the Constitution which casts a duty upon the ECP to ensure that an election is conducted ‘honestly, justly, fairly and in accordance with law’, with the ECP’s assumed stance being that this duty could not have been fulfilled at the time because of the pandemic.

46.  Ultimately the ECP, in line with the NCOC’s recommendations, deferred by-elections for 8 constituencies.¹¹² Polling for these by-elections was fixed on three different dates.¹¹³ The ECP publicised a general advisory for voters to maintain social distancing during their time at polling stations, which constitutes the only additional protective measures adopted during these elections.¹¹⁴ The option to cast votes through a postal ballot remained available only to a limited class of persons specified by law, such as those in Government service, public office holders, and persons with physical disabilities.¹¹⁵ There is no evidence to suggest that electoral access to polling was hampered as a result of the protective measures adopted by the ECP.

47.  Elections were also held for the Senate, in which 52 out of 104 members had retired on 7 February 2021. Given that the electoral college for these members (see Part I above) is considerably smaller than the voters of a national or provincial constituency, there were no major pandemic-related concerns arising out of this election. The Ministry of National Health Services, Regulations and Coordination had also issued detailed guidelines on how to minimise the risk of infection during sessions of the National Assembly and the Senate.¹¹⁶ However, the election did end up generating some controversy when the Prime Minister contracted the coronavirus and admitted that his infection was likely a result of the flouting of SOPs during the Senate election.¹¹⁷

48.  The National Institute of Health (NIH) is the principal federal body that is tasked with giving scientific advice to the Federal Government.¹¹⁸ Its board of governors used to be headed by the Health Minister.¹¹⁹ On 17 December 2020, the NIH was reorganized as an autonomous body through a Presidential Ordinance.¹²⁰ Unlike its earlier arrangement, the NIH’s reorganized board comprises a greater number of scientific experts including an infectious disease specialist ‘of recognised high repute’.¹²¹ Given that these experts are appointed by a search and nomination committee that is dominated by members of the Government, they may not enjoy genuine independence from Government.¹²² There is no legal requirement for the Federal Government to follow the NIH’s advice.

49.  The NIH was one of the first bodies to formulate a response mechanism by advising adoption of measures even before the pandemic reached Pakistan.¹²³ It was also at the forefront in issuing advice during the initial days of the outbreak.¹²⁴ However, once the NCOC was set up, the NIH has performed more of a collaborative role with other federal agencies—and notably with the Ministry of Health Services, Regulations and Coordination—under the National Action Plan, with special emphasis on data sharing and surveillance. Its main functions under the National Action Plan include issuing daily situation reports (hosted at the NCOC website) and to act as the main federal testing and diagnostic facility for Covid-19.¹²⁵ Additionally, the National Action Plan also caters for regular provision of data to the NIH to enable it to perform its advisory functions, though the only published advice available since March 2020 pertains to Covid-19 preparedness of workplaces.¹²⁶

50.  A specific role for scientific advice is also provided for in the Punjab Infectious Diseases (Prevention and Control) Act, 2020 which instructs the Secretary P&SHD to have ‘due regard’ to any advice from at least two epidemiologists appointed by the Chief Minister.¹²⁷ While the declaration of a public health emergency made under this law was expressed as having been issued with such ‘due regard’, the specific advice rendered is not referred to, nor are the identities of the epidemiologists disclosed.¹²⁸

51.  Even before the pandemic, freedom of the press remained a source of controversy in Pakistan which was ranked at 145 in the World Press Freedom Index in 2020.¹²⁹ There has been at least one reported obstruction where two journalists, who were covering a quarantine centre set up in the Chaman region on Pakistan’s shared border with Afghanistan, were detained and tortured by paramilitary forces in the Province of Balochistan.¹³⁰ Subsequently, journalists in Balochistan protested, calling for action against the officials responsible for the incident.¹³¹ A day later, the Pakistan Electronic Media Regulatory Authority (PEMRA)—the chief regulator for all forms of private electronic media in the country—issued some controversial ‘directives and guidelines’.¹³² Besides directing media houses to set up editorial boards tasked with preventing the spread of disinformation surrounding Covid-19, these directives and guidelines also suggested that only qualified healthcare professionals be given airtime on issues related to Covid-19, and that only expert opinions of those epidemiologists who were nominated as health experts by the Federal or Provincial Government be sought. Airing ‘projections about Covid-19’ other than those made by the NCOC was also discouraged. These ‘directives and guidelines’ have often been criticised for being unduly restrictive.¹³³ PEMRA’s regulation of electronic media even in matters unrelated to Covid-19 has often been criticised for being excessive.

52.  Other measures taken by the Government that could—but did not necessarily—have impacted press freedom include the NCOC’s policy to curb the spread of disinformation surrounding Covid-19.¹³⁴ This policy eventually led to the establishment of a ‘Fake News’ counter by the Press Information Department which allows anyone to report a news item that spreads disinformation.¹³⁵ Upon receipt of such a report, the Ministry of Information and Broadcasting posts the item in question on the ‘Fake News Buster’ section of its website as well as through a dedicated Twitter handle with the word ‘Fake’ pasted across the item.¹³⁶ There is no evidence to suggest that the ‘Fake News’ counter has been abused to stifle freedom of the press.¹³⁷

53.  There has been no suspension or modification of the laws on access to information. The Pakistan Information Commission was established in 2017 to support the right to information.¹³⁸ It has continued to function during the pandemic by providing remedies to those who had been denied information from a federal public body.¹³⁹

54.  The office of the Federal Ombudsman (Wafaqi Mohtasib) of Pakistan was set up in 1983 to investigate allegations of maladministration on the part of any federal agency.¹⁴⁰ The only matters excluded from its jurisdiction are those which are under consideration in live proceedings before a court, those relating to the external affairs of Pakistan and those connected with the defence of the country.¹⁴¹ Each province, too, has an independent ombudsman performing the same functions in respect of provincial agencies.¹⁴² Although the office has remained functional throughout the Covid-19 crisis, there are no reported complaints of maladministration arising out of the Government’s handling of the pandemic. It also remains to be seen whether such a complaint, if filed, would be precluded by the bar on sub-judice matters given that the Supreme Court has not yet wrapped up its suo motu proceedings relating to the pandemic (see Part III.C above).

55.  Another oversight body that could potentially play a key role is the office of the Auditor General of Pakistan (AGP) which is constitutionally protected (Article 168 of the Constitution). Its basic responsibility is to monitor Government expenditure and to carry out audits of Governmental departments. Thus far there has been no significant finding rendered by the AGP in relation to the Government’s expenditure in dealing with the pandemic, though it is expected to assume a more prominent role with the Government set to import vaccines in 2021.

56.  There is no special reviewer of legislation nor any public official appointed to monitor the public response to Covid-19.

57.  The public health measures imposed to counter the pandemic in Pakistan have evolved over the course of four waves of rising infections, with the first wave lasting from May–July 2020, the second from November 2020–January 2021, the third from March–May 2021, and a fourth wave that began in July 2021 and is still currently ongoing. Despite the availability and use of independent legal frameworks by each province, as well as ample competence under the Constitution, the public health measures adopted throughout the country since the first wave have retained a basic level of predictability: whenever the positivity ratio—the percentage of persons testing positive for Covid-19 out of the total number of persons tested—rises in any district or city of a province, the provinces have imposed similar sets of measures in those specific districts and cities. These measures include restrictions on travel, closure of schools, restaurants, and other establishments, reduced opening hours of business and commercial activities, etc. At the peak of the second and third waves of rising infections, these restrictions were tightened and the scope of their application gradually expanded to wider areas of a province, only to be ultimately eased once the positivity ratio fell below a certain threshold (typically 5%). Both the imposition as well as the easing of restrictions has been staggered: bans on indoor gatherings and closure of schools and establishments have typically been the first response, with the measures gradually extending to outdoor gatherings as well as travel restrictions. Similarly, the easing of restrictions is usually gradual, with the trend being to first grant exemptions to individuals and/or establishments before lifting the restrictions altogether. This is in stark contrast to the initial outbreak of the pandemic when measures were imposed all at once and across the entire territory of each province without any reference to the positivity ratio. At the same time, some measures have been a constant throughout the pandemic, regardless of whether new infections have been rising or falling: these primarily include the continued emphasis on social distancing and the use of face coverings.

58.  The predictability of measures imposed by each province is by no means a coincidence, rather it emerged out of the conscious choice of developing a unified national response to the pandemic. Central to this choice is the Federal Government-led NCOC, where measures are recommended and agreed upon through federal-provincial deliberation. This section outlines the public health measures adopted in the Punjab and Sindh, while noting the areas where the two provinces may have diverged.

59.  Pakistan’s response to the pandemic in terms of public health measures can be divided into two phases. The first phase, beginning from March 2020 and ending in August 2020, consists of more drastic and all-encompassing measures that were incrementally taken and modified by each province individually and with effect across their entire territory. These measures, though adopted at the provincial level, were by and large shaped by the Federal Government’s NCC on Covid-19 and the Supreme Court’s insistence on adoption of a uniform national response (see Part III.C above). The NCC’s directions were binding given that the Covid-19 pandemic was being viewed as a ‘grave menace to the peace or tranquillity or economic life of Pakistan’—having also been declared as such by the Supreme Court in May 2020—and the federation was thus empowered to direct the provinces as to the manner in which they were to exercise their executive authority (see Parts II.A and III.C above). The second phase beginning from August 2020 has been marked by a more particularised approach with the nature, duration, and intensity of restrictions varying within different areas of each province through the identification of Covid-19 ‘hotspots’. This phase is still ongoing. The parameters of the measures taken towards the end of the first phase and throughout the second phase have been driven by the data shared by the NCOC and its recommendations. Although the coordination between the NCOC and the provinces was initially smooth with an overall consensus, tensions with Sindh have started to develop, with the province often seeking to impose stricter measures than those recommended by the NCOC.

60.  The first set of individual mobility restrictions stemmed from advice issued by the Sindh Government on 14 March 2020 asking people to restrict their movement and social activities ‘as far as possible’.¹⁴³ This was eventually escalated on 22 March 2020 to what was, for all intents and purposes, a stay-at-home order imposing a 15-day ban on movement of people. The order contained exceptions so that those who could leave their homes included personnel related to health services, law enforcement, essential services, people in need of medical care, and people going to buy medicine and groceries.¹⁴⁴ Individuals falling within these exceptions were subject to a one-person-per-vehicle rule. Only the elderly and those in need of medical care were allowed to take one attendant with them.

61.  The Punjab Government followed suit by imposing similar restrictions on 23 March 2020.¹⁴⁵ These sets of restrictions, adopted in some form or the other by all provinces, were nationally referred to as a ‘lockdown’ which, despite meeting initial resistance from the Prime Minister, was eventually supported by the Federal Government. Thus, on 26 March 2020 the Federal Government issued broad guidelines recommending that individuals stay home when there is no urgent need to go out, avoid large and small gatherings in public spaces, and encouraging working from home using ‘digital media sources’ (computers and other digital, information, and communications technology) .¹⁴⁶ At this stage, the Federal Government had not issued any directions in respect of individual mobility restrictions, thus allowing the provinces to develop and impose such restrictions themselves.

62.  Over the course of the next month these restrictions were extended and their intensity was varied. In Sindh, there was a curfew from 24 March 2020 prohibiting people from leaving their homes between 8pm and 8am.¹⁴⁷ The duration of this curfew was increased from 27 March 2020 onwards to between 5pm and 8am.¹⁴⁸ With the gradual resumption of economic activity in June 2020, the curfew was lifted, though people were nevertheless advised to take preventive measures at all times, such as to avoid unnecessarily leaving their homes.¹⁴⁹ The restrictions in the Punjab followed the same pattern, though the exceptions to mobility restrictions there were considerably wider than those in Sindh. Thus, while the Punjab Government (through the P&SHD) extended the duration of the restrictions to 25 April 2020,¹⁵⁰ and then again to 9 May 2020,¹⁵¹ with each extension the list of exceptions was widened to exempt persons associated with a wider range of professions and industries. Some of the sectors exempted through these orders included defence-related manufacturing industries and packing facilities, food manufacturing industries, poultry and feed mills, and movement of all oil and gas exploration companies. The wide list of exemptions for businesses and industries was driven by economic needs in the Punjab, and was also in line with the Prime Minister’s narrative—whose political party is also in power in the Punjab—that the Pakistani economy would be unable sustain complete shutdowns of key sectors of the economy.¹⁵²

63.  The trend thereafter, led by the NCOC’s guidelines published in June 2020,¹⁵³ was to impose ‘smart lockdowns’ which restricted individual mobility by limiting entry and exit in specific neighbourhoods, districts, localities, or even entire cities depending on the prevailing positivity ratio, ie the percentage of persons tested for Covid-19 in a given locality who had tested positive. The most common feature of ‘smart lockdowns’ was a complete ban on movement of people to and from the listed areas, with entry and exit points being sealed, sometimes with exceptions for, inter alia, doctors, lawyers, judges, and healthcare workers. For some of these smart lockdowns, it was stipulated that only one passenger per family would be allowed to travel within the listed areas. In the Punjab, these restrictions were imposed by the P&SHD under the Punjab Infectious Diseases (Prevention and Control) Act, 2020, and—for the intervening time period between the lapse of the (erstwhile) ordinance and its formal conversion into the 2020 Act (see Part II.A above)—by the Home Department under section 144 of the Code of Criminal Procedure, 1898. Since June 2020, a number of these ‘smart lockdowns’ have been imposed in different areas of the province ranging from small neighbourhoods to entire cities.¹⁵⁴ The Sindh Government also adopted this ‘smart lockdown’ policy, albeit from a later date.¹⁵⁵ The minimum duration of each ‘smart lockdown’ in both provinces was two weeks, with the date of its lifting being specified in the instrument through which the lockdown was imposed.

64.  The first restrictions on international travel were imposed on 13 March 2020 when the National Security Committee decided to completely seal Pakistan’s western border with Afghanistan and Iran.¹⁵⁶ On 19 March 2020, a major portion of the eastern border with India was also sealed.¹⁵⁷ These closures were meant to last for an initial period of two weeks but were extended through nearly the entire month of April 2020.¹⁵⁸ Under instructions from the Federal Government, on 21 March the Pakistan Civil Aviation Authority imposed a complete ban on all international passenger, charter, and cargo flights, excepting only diplomatic flights and national carrier flights with special approvals.¹⁵⁹ This ban was periodically extended until 30 May 2020.¹⁶⁰ It was not until 19 June 2020 that the resumption of international flight operations was announced to and from all international airports in Pakistan except those at Gwadar and Turbat.¹⁶¹

65.  However, restrictions were periodically imposed on international flights, particularly those originating from ‘Category C’ countries, ie countries considered to be ‘high-risk’ for Covid-19. Travel from such countries was highly restricted and flights required prior approval from the NCOC in order to land in Pakistan. On 20 March 2021, the Civil Aviation Authority notified that, in accordance with the NCOC instructions, travel from Category C countries—then comprising 12 countries—would be banned until 5 April 2021.¹⁶² As of 27 July 2021, Category C comprises 26 countries from which inbound travel to Pakistan is banned for all passengers except Pakistani citizens until 31 August 2021.¹⁶³ Travellers from all other countries, except those falling in ‘Category A’, are required to have a mandatory Covid-19 PCR test up to 72 hours before commencement of travel to Pakistan.¹⁶⁴ Following the resumption of air travel, the Ministry of National Health Services, Regulations and Coordination has periodically issued and updated guidelines on domestic air travel,¹⁶⁵ international passenger departure,¹⁶⁶ international passenger arrival,¹⁶⁷ and conveyances and ground crossings. ¹⁶⁸ Of particular significance within the travel restrictions currently in place is the mandatory provision of each traveller’s contact information either through the ‘PassTrack’ mobile app or a web-based form. The purpose of this tracking system is to encourage travellers to provide the Government with voluntary updates regarding the development of any Covid-19 related symptoms during the first 14 days of their arrival in Pakistan.

66.  On 24 July 2021, in line with the NCOC’s recommendations, it was decided that no Pakistani passengers over the age of 18 years would be allowed to undertake domestic air travel without proof of having the Covid-19 vaccination.¹⁶⁹ This restriction took effect from 1 August 2021 with exemptions granted to, inter alia, partially vaccinated individuals, foreign nationals, and individuals clinically advised against vaccination owing to risk factors—with a valid doctor’s certificate to that effect.

67.  Internal travel restrictions—except those related to air travel—were imposed at a provincial level. The Punjab Government had initially banned inter-provincial transport altogether, but this measure was struck down by the Supreme Court on 13 April 2020 in its suo motu proceedings arising out of the pandemic.¹⁷⁰ The court had held that since the restriction tended to impinge upon a fundamental right (freedom of movement) protected under Article 15 of the Constitution, it could only have been imposed through legislation. Subsequently, the same restrictions were imposed upon public transport, such that no form of public transport was available for inter-provincial movement.¹⁷¹ Similarly, there were restrictions imposed on internal travel even within the province.¹⁷² However, these restrictions were not struck down by the Supreme Court, nor was the court’s attention drawn to them, ostensibly because the executive orders imposing them had the backing of legislation. On 9 August 2020, public transport restrictions in the Punjab were lifted, but travel was nevertheless subject to the following of SOPs for physical distancing and hygiene.¹⁷³

68.  The initial response from Sindh—which is where the first case of Covid-19 in Pakistan was reported—was to set up a mandatory quarantine centre for pilgrims coming from Iran—which was the epicentre of Covid-19 in the region at that time—requiring all pilgrims to be moved to the quarantine centre, screened one by one, registered, and sent to their rooms for isolation for 14 days.¹⁷⁴ As for internal travel, following the province-wide ‘lockdown’,¹⁷⁵ there was a complete ban on public transport for inter-city and inter-province travel for 15 days, which was extended on 2 April 2020¹⁷⁶ and 14 April 2020.¹⁷⁷ On 19 May 2020, the Sindh Government banned more than one person riding on a single motorcycle—which is one of the more common modes of transport—thus restricting the daily commute.¹⁷⁸ The only exception made was for women, children, and elderly or other family members from within the same household. Measures banning inter-city and inter-provincial travel, as well as intra-city travel on public transport, continued in May 2020 until public transport providers challenged the ban imposed on inter-city bus services in the province before the Sindh High Court.¹⁷⁹ Transporters stressed that inter-city bus services were resumed in the other provinces, including the Punjab (subject to adherence to SOPs) while they remained prohibited in Sindh. Following a series of negotiations with the transport providers, the Sindh Transport Minister lifted the ban on public transport within cities. On 10 August 2020, the inter-provincial ban on public transport was also lifted subject to ensuring that SOPs were followed.¹⁸⁰

69.  With the provinces beginning to follow the lead and recommendations of the NCOC, the Sindh Government faced a new dilemma. With the onset of the third wave of the pandemic, the Chief Minister of Sindh began pressing the NCOC to ban inter-provincial public transport, while also hinting that if the NCOC withheld such a recommendation, his Government may adopt the measure independently.¹⁸¹ Tensions were eventually reduced when the NCOC announced its support for the transport ban in Sindh, but only on Saturdays and Sundays, from 10 April 2021 to 25 April 2021.¹⁸² This ban was extended till 16 May 2021. However, new conflicts between the Federal Government and the Sindh Government emerged during the fourth wave of rising infections, when the Chief Minister of Sindh imposed a nine-day ‘partial lockdown’ which focused on the province’s capital and entailed, inter alia, a ban on inter-city travel within the province.¹⁸³ This new ‘partial lockdown’ was atypical in that it had not been announced by the NCOC and thus appeared to be a unilateral decision on the part of the Sindh Government, more so because the Federal Minister for Planning, Development and Special Initiatives—who chairs the NCOC—had publicly disapproved of city-wide lockdowns a day earlier.¹⁸⁴ Although the Chief Minister of Sindh has maintained that the measures were imposed only after consultation with the NCOC, the Federal Minister for Information and Broadcasting criticised the Sindh Government and stated that any attempt by a provincial Government to bypass the orders of the Federal Government or the NCOC in such matters was ‘unconstitutional’.¹⁸⁵ Be that as it may, no steps were taken by the Federal Government or the NCOC to undo the ‘partial lockdown’, and the latter confirmed the date for the lifting of the lockdown, as originally proposed by the Chief Minister of Sindh.¹⁸⁶

70.  Limitations on public and private gatherings were always going to be controversial for two broad reasons. Firstly, Pakistan hosts a number of religious congregations throughout the year. Additionally, large numbers congregate on a number of dates at the death anniversaries (Urs) of various saints which are held at or near shrines and tombs. Participation in such congregations is central to the faith of many. For instance, when the Urs of Baba Farid-ud-Din Masood Ganj Shakar was cancelled by the Punjab Government in 2020 due to the pandemic, the cancellation was challenged in court on the ground that it violated the petitioners’ right to profess their religion under Article 20 of the Constitution. The court, while recording its appreciation for the progress made by the NCOC in countering the pandemic, disposed of the case when the Government decided to let the annual ritual take place subject to strict adherence to the NCOC’s SOPs and guidelines.¹⁸⁷

71.  Secondly, the mainstay of political activities in the country is comprised predominantly of political rallies and similar shows of numerical strength. This became a more potent issue in view of the formation of the Pakistan Democratic Movement (PDM)—an alliance of 11 opposition parties formed in September 2020—which has organised protests against the current Government and held at least 16 large public gatherings across the country between October 2020 and February 2021. Permission for one such gathering—where over 100,000 participants were expected—was challenged in the Lahore High Court on the ground that it would jeopardise public health in the city. The court declined to interfere since the permission had been applied for, though not yet granted by the relevant department. It was nevertheless held that the right to assemble peacefully was constitutionally protected under Article 16 of the Constitution, subject to reasonable restrictions imposed in the interest of public order, and that the Punjab Infectious Diseases (Prevention and Control) Act, 2020 did provide for such restrictions.¹⁸⁸ The tenor of the court’s judgment was that the SOPs issued by the Government from time to time were binding, and that subject to compliance with those SOPs, it was open for the relevant department to grant permission for the gathering.¹⁸⁹ Eventually, permission was granted and the gathering took place as scheduled.

72.  This is in sharp contrast to the Government’s initial response to public gatherings. At the time of the initial outbreak, Pakistan was already hosting the final stages of its premier cricketing event, the Pakistan Super League (PSL), which had participants from all over the world. The National Security Committee had immediately decided that the PSL games would only continue without spectators being allowed to attend.¹⁹⁰ While some games were thus played without spectators, ultimately the event had to be postponed.

73.  The Punjab Government had imposed a complete ban on gatherings of all kinds, including religious congregations, ceremonies, and festivals.¹⁹¹ This ban was in effect from 23 March–9 August 2020 (variable provision).¹⁹² To cater for the religious gatherings and processions that arise in the Islamic month of Muharram, the Government issued detailed SOPs which included, inter alia, a prohibition on gathering in groups, recommending that the processions be conducted in wide spaces, and for each of these gatherings to operate at 50% capacity only, with an inter-person spatial distance of 6 feet.¹⁹³ A less intensive set of restrictions was imposed in seven cities of the province from 13 March 2021–present, despite the positivity ratio being alarmingly high.¹⁹⁴ In these seven cities, all indoor gatherings have been banned and only outdoor gatherings with a maximum of 50 people have been permitted. For the rest of the province, indoor gatherings remain banned while outdoor gatherings of up to 300 people have been permitted. It was also recommended that no such gathering may last longer than 2 hours. The order also reinstates the complete ban on all types of sports, cultural, and other activities throughout the province.

74.  The limitations on gatherings in Sindh followed a similar pattern with wider restrictions from 22 March–10 August 2020 (variable provision), gradual easing of those limitations thereafter, and then a reimposition of restrictions in the wake of the third wave in March 2021.¹⁹⁵ Notable exceptions during the first set of restrictions included provision for performing religious rites such as funerals, burials, etc, subject to taking necessary precautions, which included having small gatherings with only close family and notifying the relevant Station House Officer of the area.¹⁹⁶ The restrictions were also extended to congregational prayers at mosques, allowing only 2–5 persons designated at the mosques to offer prayers.¹⁹⁷ The general public was required to offer prayers at home. These measures similarly applied to all other places religious worship.

75.  In the Islamic month of Ramadan, Sindh was the only province to prohibit the general public from performing special congregational prayers (Taraweeh) at mosques. The decision was made after doctors and health experts had expressed their concerns about allowing congregational prayers, which they felt could be ‘disastrous’.¹⁹⁸

76.  One other notable variance between the Punjab and Sindh is that the latter has periodically introduced a province-wide blanket ban on indoor and outdoor gatherings. For instance, a ban was placed on indoor weddings and indoor dining in March 2021.¹⁹⁹ In May 2021, stricter measures were introduced for a period of two weeks with a ban on all kinds of private events attended by more than 10 people, and suspension of indoor and outdoor dining at restaurants.²⁰⁰ These restrictions were eased in the first week of June 2021,²⁰¹ but have since been reimposed with indoor and outdoor gatherings being banned from 23 July 2021 to 8 August 2021.²⁰²

77.  The mandatory closure of premises and facilities has generated more debate and conflict than any other public health measure. The initial closures emanated from the decisions made by the Federal Government’s National Security Committee on 13 March 2020, which entailed closure of all educational institutions for three weeks, and closure of wedding halls and cinemas for two weeks.²⁰³ The provinces implemented these decisions and thereafter took charge by extending the duration of the closure and ordering closure of other establishments (eg parks, restaurants, etc) as well. Since the measures adopted in the Punjab and Sindh followed a largely similar pattern and generated the same controversies, this section only discusses the former.

78.  In the Punjab, all markets, shopping malls, restaurants, offices (public and private), marriage halls, and educational institutions, were instructed to remain closed initially from 23 March–7 April 2020, with some exemptions which notably included grocery stores and pharmacies.²⁰⁴ These restrictions were extended time and again with exceptions being made for additional sectors. They broadly remained in force in one form or another from 23 March–9 August 2020. During this time, the closure was specifically extended to marriage halls, business centres, expo halls, places of recreation (including parks), beauty parlours, cinemas and theatres (indoors and outdoors), and sports facilities.²⁰⁵ Significant relaxations were made on 1 June 2020 when it was ordered that all other businesses, factories, facilities, premises, retail shops, shopping malls, and plazas would be allowed to operate, but only on weekdays and with restricted opening hours. On Saturdays and Sundays, a ‘complete lockdown’ would be in force so that only essential services like grocery stores and pharmacies would be allowed to stay open.²⁰⁶ Further relaxations to the timings of essential services were made on 27 July 2020 and again on 2 August 2020.²⁰⁷ Ultimately an order was passed on 9 August 2020 allowing all sectors except marriage halls and educational institutes to operate, subject to SOPs which included social distancing, hygiene, etc. This order also reverted all timings and weekly holidays to ‘pre-Covid’ times.²⁰⁸

79.  Schools were reopened in phases with on-campus classes resuming for grades 9–12 (typically attended by 13–17 year-olds) on 15 September 2020, grades 6–8 (typically attended by 10–13 year-olds) on 23 September 2020, and grades 1–5 (typically attended by 5–10 year-olds) on 30 September 2020.²⁰⁹ One limitation on school reopening, apart from requiring strict adherence to social distancing and hygiene-related SOPs, was the restriction that no more than 50% of students were allowed to be present on campus on any given day. This arrangement operated until November 2020 when, pursuant to the NCOC’s directions issued in response to rising numbers of infections in the country, on-campus teaching was banned again for a month.²¹⁰ This ban in fact lasted until 1 February 2021, when on-campus teaching resumed throughout the province, subject to largely the same restrictions as notified earlier.²¹¹

80.  There were two main sectors in the Punjab which notably protested against these closures when they were imposed or reinstated. The first were the owners and employees of marriage halls in the province who staged protest rallies against the Government in May and July 2020.²¹² Their key argument was twofold; firstly, that the continued closures of marriage halls were incongruent with the reopening of industries, markets, shopping malls, restaurants, offices, etc, and second, that the high rate of employment associated with marriage halls and their allied businesses meant their continued closures would cause many to go jobless across the province.

81.  The second sector is comprised of traders and businesses who also continued to protest against closures of shops, retail outlets, and malls, amongst others. In July 2020, for instance, Punjab’s traders defied the Government’s closure orders and announced that they would keep their shops open in protest.²¹³ In August, the provincial president of the All Pakistan Association of Traders (All Pakistan Anjuman-i-Tajiran) asserted that complete closure of businesses was not the right solution and complained of heavy losses for traders.²¹⁴ To that end, the Association had earlier filed a petition in the Lahore High Court seeking directives to the concerned authorities to grant a coronavirus relief fund to traders during the closures in April 2020, and requested the court to nullify the decision to reopen select industries and businesses on a discriminatory basis.²¹⁵ However, this petition was not only dismissed, but the Chief Justice of the Lahore High Court imposed a fine on the petitioner for ‘wasting the court’s time through an irrelevant petition’. The imposition of such costs and fines is not usual in the country. Later, another petition filed by a local association of recreational and amusement parks seeking reopening of parks and places of recreation on the eve of Eid-ul-Fitr—an Islamic holiday—was also dismissed by the Lahore High Court.²¹⁶

82.  As of 15 March 2021, tighter restrictions have been introduced in seven cities of the Punjab on account of their high positivity ratios. These restrictions include the reclosure of schools for two weeks.²¹⁷ Further restrictions were also imposed on 13 March 2021 to counter the third wave of Covid-19 in the province.²¹⁸ Regarding closures, these measures require all commercial establishments, activities, markets, and areas to close by 6pm on weekdays and remain completely closed on the weekends. Industrial activities and establishments are completely exempt from these closures, as are essential services related to food and medicine. In the seven cities of the province, all marriage and banquet halls were ordered to remain closed for indoor events, while allowing outdoor events with a maximum of 300 guests. Moreover, indoor and outdoor dining at restaurants was completely banned, barring home deliveries and takeaways. Amusement parks were ordered to close by 6pm every day, cinemas and shrines were completely prohibited from opening, and offices were instructed to reinstate the work from home policy for 50% of their staff members.

83.  An emphasis on physical distancing has been consistent at the federal and provincial levels throughout the pandemic. The Federal Government issued social distancing guidelines during the initial days of the outbreak and publicised the need to maintain a 6-feet distance between individuals.²¹⁹ While these guidelines have been adopted across the board by Sindh, the Punjab Government chose to impose more specific physical distancing conditions upon all individuals and to all premises and sectors that were exempt from the initial closures and bans mentioned above.²²⁰ Further SOPs and guidelines were laid down for gyms, health clubs, hair and beauty salons, and parlours.²²¹ Regarding physical distancing, these guidelines instructed gyms and health clubs to operate at 50% capacity at any given time, explicitly prohibited handshakes or hugging, and advised the staff and members to keep a distance of at least 2 metres between each other. Similarly, for hair and beauty salons, the guidelines instructed the management to avoid overcrowding, to operate only on an appointment basis, to deal with one customer at a time with no customer allowed in the waiting areas, and to operate at 50% capacity with at least 2 metre distance between customers. Similar SOPs and guidelines have been issued for small to medium sized businesses,²²² offices and workplaces,²²³ as well as for schools,²²⁴ all with special emphasis on physical distancing.

84.  The Federal Government took the lead in making face coverings mandatory under certain circumstances. The guidelines issued on this have been unequivocal, providing that ‘facemasks are mandatory to be worn by everyone whenever leaving their homes at all times including when at crowded public places, mosques, bazaars, shopping malls, and public transport, ie roads, rails, and flights’.²²⁵

85.  The use of face masks has also been consistently highlighted in the orders passed by the Government of Sindh.²²⁶ In the Punjab, additional guidelines were issued for the use of PPE in relation to preparing the bodies of Covid-19 patients for burial. This guideline extended the mandatory use of PPE for both Covid-19 ‘deceased handling teams’—which comprised, inter alia, a sanitary inspector, a nurse, and a representative from both a local voluntary organization and the religious community—as well as family members taking part in body preparation for burial, and also include a list of PPE to be used.²²⁷ In late April 2020, a petition was filed in the Lahore High Court by a group of doctors against the non-availability of PPE for doctors treating Covid-19 patients in the Punjab. This petition was dismissed for being based on mala fides, and the petitioners were fined for wasting the court’s time.²²⁸

86.  It took some time before the provinces developed a consistent strategy for isolation and quarantine. The initial approach was marred by some confusion because, while Governments at the provincial levels had set up quarantine centres, it was not clear whether individuals who were experiencing symptoms of Covid-19, or those who had tested positive, were required to isolate themselves at these quarantine centres or whether they could quarantine themselves at home. For instance, the Sindh Government had given the option to infected individuals to isolate either at home—after informing the health department—or in specified isolation centres established by the Government. In the same order, the Government had directed all persons experiencing symptoms of Covid-19 to report to the health department.²²⁹ However, some teams of the health department construed this order as requiring persons experiencing symptoms to be mandatorily taken to isolation centres. Eventually, the Government of Sindh had to clarify that persons would not be taken to isolation centres by force, and that they could isolate at home, subject to consent of family members living in the same house and availability of space.²³⁰

87.  In the Punjab, under section 10 of the Punjab Infectious Diseases (Prevention and Control) Act, 2020, a notified medical officer has wide powers to cause a potentially infectious person to be moved to a specific place and retained there. This power was initially used to effect mandatory isolation of those individuals who had tested positive for Covid-19 at Government-established isolation centres, though eventually this practice was dropped in favour of encouraging home isolation. In fact, one of the very first guidelines issued by the office of the Director General Health Services, Punjab, pertained to home isolation.²³¹ This guideline defined isolation as a ‘public health measure that separates lab confirmed patients of any communicable disease from those who are healthy’ and quarantine as a ‘restriction of activities or separation of persons who are not ill but who may be exposed to an infectious agent or disease, with an objective of monitoring symptoms and early detection of cases’. The guideline specified that home isolation would only be allowed if a patient was asymptomatic or had mild symptoms and was approved through the Home Isolation Assessment Committee. Further protocols were included on shifting Covid-19 patients from their homes to medical facilities, with patients roughly being divided into three categories depending on the severity of their symptoms and designated different hospital wards and facilities accordingly. Detailed guidelines for designated isolation facilities as well as the mechanics of home isolation were also included.

88.  After initial confusion, the strategy as it stands is thus to encourage isolation and quarantine at home. Detailed guidance has also been issued in this respect by the Federal Government.²³² It covers those who have come in close contact with a confirmed case of Covid-19 as well as individuals who may be experiencing symptoms for the first time.

89.  There was a strong early commitment to testing as a public health response in Sindh, where the first Covid-19 case was reported, with the Government increasing testing capacity of existing laboratories, as well as providing free home-based testing facilities, establishing drive-through testing facilities,²³³ and mobile testing facilities for slums.²³⁴ By the end of June 2020, however, a shortage of Covid-19 testing was reported, with a 50% reduction in testing capacity. Thousands of test results were put on hold in several laboratories and the home-based testing facility in the province was shut down because of the infection spreading among testing staff.²³⁵ Ultimately, by November 2020, following a shortage of testing kits and thousands of samples in the pipeline waiting to be tested, the Government decided that only individuals over 60 years of age suspected of having Covid-19, displaying symptoms, and suffering from comorbidities, were allowed to undergo PCR testing at public laboratories in Sindh ‘till further orders’.²³⁶ It was added that students and staff not showing any symptoms at educational institutions, and other individuals who were travelling or suffering from other diseases, were to be tested at their own expense in private laboratories. The testing requirements of the province are presently being met by private and public facilities. As of 15 March 2021, a total of 3,152,760 PCR tests have been conducted in Sindh out of which 261,581 were positive.²³⁷

90.  In the Punjab, the powers conferred upon a medical officer notified by the Secretary P&SHD under section 11 of the Punjab Infectious Diseases (Prevention and Control) Act, 2020 allow one to impose screening requirements upon ‘potentially infectious persons’ who are defined quite widely in section 2(g) of the 2020 Act. Additionally, the Director General Health Services has laid down protocols for testing within the guidance on home isolation.²³⁸ These protocols require individuals to take a test after 10 days, stipulating that isolation can only end if a negative PCR test is returned twice with a gap of 24 hours between each test. It was further decided that where testing is not possible, the WHO recommendation of isolating for an additional 2 weeks after cessation of symptoms would be adhered to. For those who were neither isolating nor experiencing any symptoms, a limited ‘smart sampling and testing strategy’ had been initially proposed by the Punjab Covid-19 Working Group and implemented by the P&SHD. This strategy was deployed over a two-week period in early May 2020 across the provincial capital, the city of Lahore. This time period included the period of ‘strict lockdown in the city’ and the strategy was deployed on a block-level whereby 645 blocks that were adjacent to blocks with known existing cases of Covid-19 infections were randomly selected. In total, 12,000 individuals were tested and according to the report’s conclusions, this smart testing technique was 60% less costly than individual PCR tests—with 12,000 individuals being tested at an average cost of PKR 1,334 as opposed to individual PCR tests costing PKR 3,500 per individual. ²³⁹ Despite the numbers, the smart sampling and testing strategy was not adopted across the province.

91.  Neither federal laws, nor the laws applicable in the Punjab and Sindh, provide for mandatory vaccination. The country’s vaccination drive commenced with frontline healthcare workers, followed sequentially by three blocks of senior citizens aged (i) over 65, (ii) over 60, and (iii) over 50. The NCOC has, besides encouraging eligible citizens to get themselves registered for vaccination,²⁴⁰ issued a list of vaccination centres all over the country where the vaccine is presently being administered.²⁴¹

92.  At the time of the initial outbreak, contact tracing was confined to travellers entering Pakistan.²⁴² As the first set of restrictions was gradually being eased throughout the country, Pakistan had attempted to implement a broader contact-tracing procedure to control the spread of the virus.²⁴³ Eventually, however, the emphasis on contact-tracing remained confined to travellers (detailed in Part IV.A.2 above). Responsibility for this was assumed by the Federal Epidemiology and Disease Surveillance Division of the NIH, which works in conjunction with provincial surveillance units and makes daily phone calls to travellers to monitor their symptoms, if any.²⁴⁴ There have also been voluntary initiatives in some regions. For instance, the Punjab P&SHD, in collaboration with the NCOC, established a Trace, Test and Quarantine Cell (TTQ) pursuant to the WHO’s recommendations, which was reported to be successful in reducing the positivity ratio. A total of 372,473 contacts of 84,924 Covid-19 patients were traced and tested in two time periods, between March and August 2020. Amongst those traced, 12,694 tested positive while 321,726 tested negative.²⁴⁵ In December 2020, the Punjab Government announced the strategy for its central contact tracing unit, which includes verifying symptoms of ‘suspects provided by NCOC’. ²⁴⁶ There has been no public disclosure as to how this is operationalized.

93.  There were no specific public health measures imposed on or advised for long-term care facilities or old age homes in Pakistan at the federal nor provincial level.

94.  The manner in which the measures detailed in Part IV.A above have been enforced throughout the country has varied, depending largely on the prevalent situation in terms of the number of active cases of Covid-19. Perhaps the only exception to this variability is the role of public health officials, which has consistently revolved around isolation, quarantine, testing, treatment, vaccination, and contact tracing.

95.  During the initial outbreak in March 2020, the Federal Government had sought assistance from the armed forces under Article 245 of the Constitution and section 131-A of the Code of Criminal Procedure, 1898. Under Article 245, the Federal Government can call upon the armed forces to act in aid of civil power, while section 131-A empowers the Provincial Governments to seek the Federal Government’s approval for deployment of troops in the interests of maintaining public peace and law and order. Although the deployment plan was not publicly disclosed, the understanding was that it was meant for enforcement of the restrictions that had been introduced by the provinces.²⁴⁷ Notwithstanding this initial deployment, enforcement at the frontline was quickly taken over by the provincial administrations. Senior members of the armed forces nevertheless continue to participate in developing the response strategy to the pandemic as part of the NSC as well as the NCOC.

96.  There are nuanced but significant differences in the enforcement mechanisms applicable in the Punjab and Sindh. Sections 17 and 18 of the Punjab Infectious Diseases (Prevention and Control) Act, 2020 prescribe penalties for violating the directions, restrictions, or duties imposed under the statute. The penalties include a fine as well as a term of imprisonment between two months and one year, depending on the nature of the violation, with the stricter term prescribed for repeat offenders.²⁴⁸ Separate provision is made for those who run away from a ‘place of retention’ (ie a place designated by the Government as being suitable for screening and assessment of potentially infectious individuals), which entails the lengthiest maximum term of imprisonment—6 months for the first offence and 18 months for a repeat offence—as well as the heaviest fine under the statute.²⁴⁹ The statute thus creates new criminal offences to effectively ensure compliance with the measures taken to counter Covid-19. The trial of these offences is entrusted to a magistrate who, on the basis of a complaint, employs the summary trial procedure under the Code of Criminal Procedure, 1898. Wide enforcement powers are further conferred under the Act upon the deputy commissioner of a district as well as police officers, including the powers to enter premises, detain persons for up to 24 hours, and use ‘reasonable force to ensure compliance’.²⁵⁰

97.  By contrast, the Sindh Epidemic Diseases Act, 2014 does not designate non-compliance with measures made thereunder as a separate or new criminal offence. Instead, in its original form, it provided that disobedience of orders made under the Act would be punishable as offences under section 188 of the Pakistan Penal Code, 1860 (disobedience to order duly promulgated by a public servant).²⁵¹ Offences under section 188 are punishable with fine and up to one month’s imprisonment. The enforcement of the first set of restrictions, eg the curfew, was carried out under these powers.²⁵² As detailed in Part II.B above, the Act was subsequently amended to provide an additional penalty in the form of an ‘on spot fine up to rupees one million’ for violations.²⁵³ Although the Act does not expressly confer the wider enforcement-related powers upon the district administration as was done in the Punjab, such powers are nonetheless inherent within section 3 of the Act, insofar as it empowers the deputy commissioner to take any measure deemed necessary.

98.  Thus, the district-level administration in both the Punjab and Sindh—empowered by legislation—have taken the lead in enforcing the SOPs issued for the reopening of premises, including restaurants, shops, marriage halls, etc. Violations of these SOPs typically result in the imposition of fines and, in some cases, ‘sealing’ of the premises along with registration of criminal cases against the offenders.²⁵⁴ In Sindh, the enforcement of SOPs in premises is controlled by officers of the relevant department (eg industries, labour, food, etc) authorised to act by the deputy commissioners, with the sanction of closure of premises explicitly stated in the orders passed under the statute.²⁵⁵ On the other hand, enforcement of measures pertaining to physical distancing and use of face coverings throughout the country have proved to be far more challenging. The NCOC has preferred to rely on self-enforcement by encouraging citizens to report to a centralised WhatsApp number ‘any violation of Covid SOPs like non-wearing of mask, non-adherence to social distancing, over-crowding at public places etc’.²⁵⁶ Enforcement duties for these measures were also taken up by the Prime Minister’s Corona Relief Tiger Force, even though it had been set up for a different purpose, namely to provide food and rations during the initial lockdown. The task force had earlier been criticised by the opposition for being entrusted with duties to ‘check’ prices of essential commodities, though the Federal Government has continued to defend its role.²⁵⁷

99.  The general perception throughout the pandemic has been that compliance with public health measures has remained low.²⁵⁸ This is particularly so for measures pertaining to physical distancing and use of face coverings, not least because non-compliance with these measures entails little to no sanction. In fact, in his various addresses to the nation, the Prime Minister has repeatedly bemoaned the flouting of the Government’s SOPs and consistently warned that restrictions may need to be tightened unless the SOPs are followed to the letter.²⁵⁹

100.  Although this general perception remains in terms of the Government’s narrative, there is very little data available thus far on compliance rates. In a small cross-sectional survey of the public of Rawalpindi (the Punjab), it was found that 38.3% of the population was unwilling to be screened for Covid-19, primarily out of a fear of isolation/quarantine.²⁶⁰ Another study conducted in a hospital of the same city revealed that compliance with the use of PPE among non-healthcare workers was considerably low.²⁶¹ These studies are, of course, based on very small samples and cannot by any stretch be viewed as more than mildly indicative, given that the country is diverse with a population of over 216 million people.

Isaam Bin Haris, Law Concern

Fatima Mehmood, Universal College Lahore

Seher Aftab, University of Pretoria

Hafsa Ahmad, Cornelius, Lane & Mufti

Momina Naveed, Raja Mohammed Akram & Co