T5R

IN THE SUPREME COURT OF STATE OF BRAAVOS

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ELCOP CONSTITUTIONAL LAW VIRTUAL MOOT COURT COMPETITION 2020

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EQUALITY FOR ALL

(PETITIONER)

V.

STATE OF BRAAVOS

(RESPONDENT)

_______________________________________________________________________________________________________________

MEMORIAL FOR THE RESPONDENT

2020
 TABLE OF CONTENTS

Table of Contents…………………………………………………………………………. .2

Table of Abbreviations……………………………………………………………………..5

Index of Authorities………………………………………………………………………. .6

Statement of Jurisdiction…………………………………………………………………...9

Statement of Facts ……………………………………………………………………… …10

Issues Raised………………………………………………………………………………...11

Summary of Pleadings…………………………………………………………………… 12

Pleadings…………………………………………………………………………………….13
I. NON-ADMISSION OF SERSAI DID NOT VIOLATE THE SERSAI’S
FUNDAMENTAL RIGHT AND NEITHER STATE NOR MEDICA CAN BE HELD
LIABLE FOR SUCH VIOLATION OF FUNDAMENTAL RIGHT………………..
A. NON-ADMISSION OF SERSAI DID NOT VIOLATE HER FUNDAMENTAL
RIGHT……………………………………………………………
1. ‘Equality for All’ has no locus standi to file this PIL…
a. PIL cannot be filed to enforce the right of an individual……………..
2. Non-admission of Sersai was not the result of negligence on the part of the
State rather owing to the limitations of health sector of
Braavos.………………….
3. Effective preventive measures can validly be taken to save the collective
rights
a. Health care service providers have the right to life……………………..
b. Preventive measures could validly be taken to protect a group of people
from being affected by the communicable
disease.………………………………………………………………………
B. NEITHER STATE NOR MEDICA CAN BE HELD LIABLE FOR THE
VIOLATION OF FUNDAMENTAL RIGHT ……………………………………
1. Providing Medical care is a fundamental State Policy; as such, cannot be
claimed as a fundamental right.

2
 a. State cannot be held liable for the Preventive Measures to Save The
Collective Rights.
b. Alternatively, the State cannot be Held Liable for the Non-Admission of
Sersai as State already took effective initiatives.

2. Non-admission of Sersai is not a refusal rather than recommendation for

the better treatment, as such Medica is Not Liable.

II. THE DECLARATION OF A NATIONAL EMERGENCY WAS NOT

VIOLATIVE OF THE CONSTITUTION AND CLOSURE OF THE COURT’S
PROCEEDING WITHOUT THE SUSPENSION OF THE ENFORCEMENT OF
THE FUNDAMENTAL RIGHTS DURING EMERGENCIES WAS
CONSTITUTIONAL AND IT DID NOT VIOLATE THE RIGHT TO ENFORCE
FUNDAMENTAL RIGHTS UNDER THE CONSTITUTION

A. THE DECLARATION OF A NATIONAL EMERGENCY WAS NOT

VIOLATIVE OF THE CONSTITUTION…………………………………….

1. The Declaration of National Emergency was in Compliance with the

Article 141 of the Constitution………………………………………..
a. The required satisfaction of the President had been fulfilled………
b. The situation was tantamount to the internal disturbance. …….…
c. Prior permission of the Prime Minister……………………………….
d. Emergency was proclaimed as a preventive manner…………………
2. The situation became threatening to right to life…………………….
B. CLOSURE OF THE COURT’S PROCEEDING WITHOUT THE
SUSPENSION OF THE ENFORCEMENT OF THE FUNDAMENTAL
RIGHTS DURING EMERGENCIES UNDER ARTICLE 141C WAS
CONSTITUTIONAL AND IT DID NOT VIOLATE THE RIGHT TO
ENFORCE FUNDAMENTAL RIGHTS UNDER THE
CONSTITUTION……………….

3
 1. Response for Public Health Emergency of International Concern…..
2. Closuring of court was not a consequence of State of Emergency….
3. Protecting right to life collectively…………………………….
4. Virtual court was introduced shortly………………………………

PRAYER…………………………………………………………………………………..

4
 Table of Abbreviations

1) PIL = Public Interest Litigation.

2) ICCPR= International Covenant on Civil and Political Rights.

3) UDHR= Universal Declaration of Human Rights.

4) PLD= Pakistan Legal Decisions.

5) DLR = Dhaka Law Report.

6) SC= Supreme Court.

7) AD= Appellate Division.

8) MLR= Mainstream Law Report.

9) HCD= High Court Division.

10) WHO= World Health Organization.

11) BOMLR= Bombay Law Report.

12) CLC= Chancery Law Chronicles

13) IHR= International Health Regulation

14) SCR= Supreme Court Reports

15) BLC= Bangladesh Law Chronicles

5
 INDEX OF AUTHORITIES

Treaties and Convention:

Bibliographical Information Page

Universal Declaration of Human Rights, (1948) [UDHR] 19

International Health Regulations, UN General Assembly, Entry into force of 20

the constitution of the World Health Organization, 17 November
1947, A/RES/131

International Covenant on Civil and Political Rights United Nations, Treaty 19

Series, vol. 999, U.N.T.S. 171 (1976)

STATUTORY PROVISIONS
Bibliographical Information Page

The Communicable Diseases (Prevention, Control and Elimination) Act, 2018 15

Supreme Court of Bangladesh (High Court Division) Rules 1973 20

The Supreme Court of Bangladesh (Appellate Division) Rules 1988 20

Usage of information and Communication Technology in Court, 2020, Ordinance 21

1 of 2020
The Medical Act 1983 16

6
JUDICIAL DECISIONS
Bibliographical Information Page

SP Gupta vs Union of India AIR 198 13

Ms. Syeda Rizwana Vs Bangladesh And Others 9 ADC (2012) 816, 18 BLC 13
(AD) (2013) 54; 39 CLC (AD)

National Board of Revenue vs Abu Saeed khan (2013) 18 BLC (AD)116 14

Francis Coralie vs Union of Delhi, AIR 1981 SC 746 14, 21

Ataur Rahman vs BM Muhibur Rahman, 14MLR (AD) 138. 17

Advocate Sultana Kamal vs Bangladesh 14 MLR (HCD)105 17

Ahsanullah vs Bangladesh (1991) | 44 | DLR | 179 17

Binod Rao vs Minocher Rustom Masani (1976) | 78 | BOMLR | 125 18

Coralie Mullin vs The Administrator 1981 AIR 746, 1981 SCR (2) 516 21

7
 Collector of Custom Vs Sampathu Chetty (1963) | SC | AIR | 216 | (Para 35). 21

Books

Bibliographical Information Page

Islam, Mahmudul, Constitutional Law of Bangladesh, (2nd ed. Mullick 18, 19, 21.
Brothers 2009)

Violence and the Use of Force, Article 19, Egypt: Excessive use of force 18
against protesters, 29 July 2013

Others:

Bibliographical Information Page

The New York Times, May 31, 1981 19

8
 STATEMENT OF JURISDICTION

The petitioner filed the writ petition before the Court invoking Article 102 of the Constitution,
which gives the Court power to entertain this petition. However, the Court cannot entertain the
petition because the petitioner lacks locus standi.

9
 STATEMENT OF FACTS

Outbreak of the Canine virus and initiatives taken by the government

The State of Braavos has been facing an outbreak of Canine 19 and in order to fight back the
Government declared a 10 days shutdown from 26 March 2020. However, the situation got
worst. Attacking hospitals spread around the country and clashes between peoples and the law
enforcement agencies led to lawlessness around the country.

Proclamation of emergency
As the situation became a threat for the Internal Security the President of Braavos proclaimed
State of Emergency on 28 March, 2020.

Non-admission of Sersai
On April 15, Sersai was taken to a private hospital named Medica with high fever and severe
pain. Medica refused to admit her and referred her to the Drone Medical College Hospital as
high fever is a symptom of Canin 19 and Medica did not have any testing kits for Canine 19 –
as it was stated by the Chairman of Medica.

Statement from the Concern authority

However, the Deputy Director of Health Service said that no hospital including public or
private can refuse any patients including those who with fever.

Closure of Courts
On March 29, the Supreme Court declared the closure of all Courts by issuing a notification
till April 2, due to the outbreak of Candida virus.

Opening of Virtual Court

On April 23, 2020, the Ministry of Law published a Gazette of the Ordinance approved by the
President to constitute a virtual Court and allow the Courts to work digitally via video
conference.

10
 ISSUES RAISED

I. Whether non-admission of Sersai violated Sersai’s fundamental right(s), whether

both the State and Medica can be held liable for the violation of fundamental rights?

II. Whether the declaration of a national emergency was violative of the constitution,
whether closing of all courts without suspension of enforcement of fundamental
rights during emergencies under Article 141C violated the right to enforce
fundamental rights under the constitution?

11
 SUMMARY OF PLEADINGS

PLEADING I.

The non-admission of Sersai by Medica did not violate her fundamental rights. Moreover, PIL
cannot be filed to enforce the right of an individual. However, Non-admission of Sersai was
not the result of negligence on the part of the State rather owing to the limitations of health
sector of Braavos. As such, Effective preventive measures can validly be taken to save the
collective rights, because doctors and Health care service providers are also entitled to have
right to life. Preventive measures could validly be taken to protect a group of people from being
affected by the communicable disease. Accordingly, neither state nor Medica can be held liable
for the violation of fundamental right because State cannot be held liable for the violation of
public health as it is not a fundamental right rather than fundamental state policy, thus, neither
in national level nor in international level, state can be liable to ensure state policy.
Furthermore, Medica is not liable for the non-admission of Sersai because non-admission is
not a refusal rather than recommendation for the better treatment.

PLEADING II.

The declaration of a national emergency was not violative of the Constitution as the situation
became threatening to right to life which indicates internal disturbance; which satisfied the
president to proclaim emergency; also, there was prior permission of the Prime Minister.
Emergency proclamation was declared as a preventive manner. Accordingly, the closure of
the court did not violate the right to enforce fundamental rights under the constitution as it was
a response for public health emergency of international concern also it was not a consequence
of the emergency; it was proclaimed to protect right to life collectively moreover virtual court
was introduced shortly to secure the fundamental rights.

12
 PLEADINGS

I. NON-ADMISSION OF SERSAI DID NOT VIOLATE SERSAI’S

FUNDAMENTAL RIGHT AND NEITTHER STATE NOR MEDICA CAN BE
HELD LIABLE FOR SUCH VIOLATION OF FUNDAMENTAL RIGHT.
A. NON-ADMISSION OF SERSAI DID NOT VIOLATE HER FUNDAMENTAL
RIGHTS.
1. ‘Equality for All’ lacks Locus Standi to File this PIL
a) PIL cannot be filed to enforce the right of an individual
Article 102 (1) of the Constitution of the People’s Republic of Bangladesh -that is pari
materia of the Constitution of Braavos,1 required that “the High Court Division may issue
directive or order against any person or authority, including any person performing any
function in connection with the affairs of the republic for the enforcement of any of the
fundamental rights and the interim order is likely to have effect of harmful to the public
interest” 2

Additionally, in the case of Ms. Syeda Rizwana Vs Bangladesh and Others it stated that “it is
to be seen that where there is undoubtedly public injury by the act or omission of the
functionary of the State or a local authority or public authority or executive excess causes a
legal injury to a specific class or group of individuals or a public injury or public wrong or
infraction of fundamental rights affecting a number of people is involved the exercise of
jurisdiction by Court is justiciable.” 3

Moreover, in SP Gupta vs Union of India 4 it was clearly mentioned that “the petitioner can
only get the locus standi if the fundamental rights of a group of people are violated.”

As Sarsai’s husband claim that he and his wife lost their child due to the refusal of hospital to
give medical treatment,5 which indicates that it is not a public concern rather the violation of
an individual’s right to get medical treatment. Comprehensively, the petitioner filed the petition
to enforce the right of an individual.6 Accordingly, the petitioner has no locus standi to file this
PIL for the enforcement of individual’s right.

1
Compromis, ¶ 12.
2
The Constitution of the People’s Republic of Bangladesh, Article 102 (4) (b).
3
Ms. Syeda Rizwana Vs Bangladesh and Others 9 ADC (2012) 816, 18 BLC (AD) (2013) 54; 39 CLC (AD),
¶ 20.
4
SP Gupta vs Union of India AIR 1982 SC 194.
5
Compromis, ¶ 7.
6
Compromis, ¶ 7.

13
 2. Non-admission of Sersai was not the result of negligence on the part of
the State rather owing to the limitations of health sector of Braavos.

In National Board of Revenue vs Abu Saeed khan,7 the Supreme Court of Bangladesh held that
every wrong or curiosity is not and cannot be the subject matter of PIL.

Accordingly, inability of the Braavos, to provide medical care cannot be a subject matter to file
this PIL. Braavos is a third world country with thousands of problems specially in health sector.
8
Braavos is still running a staggering shortage of over 60,000 doctors and also have a deficit
of almost 140,000 nurses with only one nurse per three physicians, a scenario inverse of the
World Health Organization’s (WHO) recommendation. Moreover, doctors or other health care
service provider had no personal protection equipment. Evidently, non-admission of Sersai was
not out of the negligence of the State Braavos.

3. Effective preventive measures can validly be taken to save the collective

rights
a) Health care service providers are also entitled to have right to
life
Every person including the doctors and health service providers is entitled to exercise his/her
right to life.9 Being a citizen of an independent country,10 every citizen of Braavos has the right
to life as a fundamental right guaranteed by the Constitution. In the case of Francis Coralievs
Union of Delhi, Justice Bagwati said “right to life means right to necessary condition of life”.11

Sersai came to Medica with the common symptoms of canine-1912 and by her admission in
Medica could have affect the health of the doctors, nurses and other health care service
providers. Whereas, 500 health service providers are already affected by canine-19.13 As such,
Sersai’s admission was likely to threatening to others life.

b) Preventive measures could validly be taken to protect a group

of people from being affected by the communicable disease.
International community set the principle that in a pandemic situation the Competent
authorities shall implement effective preventive measures to control the occurrence of

7
National Board of Revenue vs Abu Saeed khan (2013) 18 BLC (AD)116, ¶ 4.
8
Compromise, ¶¶ 1,2.
9
The Constitution of Bangladesh, Article 32.
10
Compromis, ¶ 1.
11
Francis Coralie vs Union of Delhi, AIR 1981 SC 746.
12
Compromis, ¶ 6.
13
Compromis, ¶ 3.

14
communicable diseases; when there are outbreaks or epidemics of communicable diseases,
control them promptly to prevent further transmission”.14 As the non-admission of Sersai is an
individual circumstances 15and Sersai had common symptoms of Canine-19 16 thus the health
care service providers and other patients of the hospitals can be affected by her. This prevention
measures are important to save the collective rights. Thus, the state is not liable for the
preventive measures to save the collective rights.

B. NEITHER STATE NOR MEDICA CAN BE HELD LIABLE FOR THE

VIOLATION OF FUNDAMENTAL RIGHT
3. Providing Medical care is a fundamental State Policy; as such, cannot be
claimed as a fundamental right.
The right to get medical care is a fundamental principle of state policy. Article 15 (a) of the
Constitution secures the basic necessity of life including medical care. Accordingly, under the
Article 8(2) of the Constitution of the People’s Republic of Bangladesh It is not enforceable by
law.17 As state is taking, measures to improve the public health sector,18 state cannot be held
liable on the ground of its failure to provide adequate health service.

a. State cannot be held liable for the Preventive Measures to Save The
Collective Rights
Article 7 the Communicable Diseases Control Act, 2018 requires the Competent authorities to
consult and implement effective preventive measures promptly to control and prevent further
transmission the occurrence of communicable diseases when there is outbreak of
communicable diseases. Accordingly, the measures taken to control the outbreaks of epidemics
by the competent authority was valid.

It is to be mentioned that, Sersai came with high fever and severe pain which is the common
symptoms of canine-19.19 Moreover, Braavos has shortage of doctors.20 Braavos has 60,000
doctors and also have a deficit of almost 140,000 nurses with only one nurse per three
physicians, while the ratio should have been the other way around, which is three nurses for

14
the Communicable Diseases Control Act, 2019, Article 7.
15
Compromis, ¶ 7.
16
Compromis, ¶ 6.
17
the Constitution of the People’s Republic of Bangladesh, Article 8 (2).
18
Compromis, ¶ 7.
19
Compromis, ¶ 6.
20
Compromis, ¶ 2.

15
one physician, a scenario inverse of the World Health Organization’s (WHO)
recommendation.21 There were only 30 labs to test Canine 19 virus and there were also
shortage of testing kits.22 Comprehensively, the health service providers and other patients can
be affected by Sersai, as such, the life of a group of people would have fallen in danger without
this preventive measure.

b. Alternatively, the State cannot be Held Liable for the Non-Admission of

Sersai as State already took effective initiatives

Article 32 of the Constitution ensures everyone’s right to life, save in accordance with law.
Accordingly, to ensure the right to life of the citizens the Deputy Director of Health Services
directed all the govt. and private hospitals to provide treatment to all the patient either they
came with canine-19 symptoms or not.23 It proves that Govt. had taken effective initiatives.
Thus, the state is not liable for negligence.

4. Non-admission of Sersai is not a refusal rather than recommendation for

the better treatment, as such Medica is Not Liable.

According to the Medical Act,24 “The physicians, professional registered nurses, doctors can
refer the patient to another physician for the better treatment”. It was mentioned in the fact25 as
500 health service providers are already affected by the Canine-19 virus thus they refer another
hospital where she can get better treatment with protection. Even doctors or other health care
service provider can spread her or her child the canine-19 virus as they had no personal
protection equipment. Thus, the health service providers of Medica refer her to another hospital
for the better treatment is not a matter of refusal rather than the recommendation for better
treatment.

Thus, the health service providers of Medica refer her to another hospital for the better
treatment is not a matter of refusal rather than the recommendation for better treatment.

21
Compromis, ¶ 2.
22
Compromis, ¶ 3.
23
Compromis, ¶ 7.
24
The Medical Act 1983, Article 10.
25
Compromise, ¶ 5.

16
II. THE DECLARATION OF A NATIONAL EMERGENCY WAS NOT
VIOLATIVE OF THE CONSTITUTION AND CLOSURE OF THE COURT’S
PROCEEDING WITHOUT THE SUSPENSION OF THE ENFORCEMENT OF
THE FUNDAMENTAL RIGHTS DURING EMERGENCIES WAS
CONSTITUTIONAL AND IT DID NOT VIOLATE THE RIGHT TO ENFORCE
FUNDAMENTAL RIGHTS UNDER THE CONSTITUTION

The Emergency was declared in compliance with provisions of Article 141 of the Constitution
of Peoples Republic of Bangladesh, that deals with the emergency situations.

A. THE DECLARATION OF A NATIONAL EMERGENCY WAS NOT

VIOLATIVE OF THE CONSTITUTION.
1. The Declaration of National Emergency was in Compliance with the
Article 141 of the Constitution.
a) The Required Satisfaction of the President had been fulfilled:
Art. 141C of the Constitution of Peoples Republic of Bangladesh -the pari materia of the
Constitution of Braavos,26requires the satisfaction of the president to declare the emergency.
However, In Ataur Rahman vs BM Muhibur Rahman case,27 the appellate division of the
Supreme Court of Bangladesh clearly stated that whenever the President considered the
suspension to be necessary it has to be taken to have been made in the interest of the Bangladesh
and no further proof is necessary. Furthermore, in Advocate Sultana Kamal vs Bangladesh28
the court held that the satisfaction of the President is subjective to judicial review. Thus, it
depends upon the particular situation that causes the satisfaction of the President. In another
case named, Ahsanullah vs Bangladesh,29 it was held that the satisfaction of the president
regarding the existence of the circumstance requiring immediate action cannot be questioned
in court.

Accordingly, the president of Braavos found it necessary for the country which led him to
declare the state of emergency. The president had enough grounds to proclaim the state of
emergency, such as there were attacks, violence and lawlessness around the country.30
Comprehensively, satisfaction of the president is beyond any question.

26
Compromis, ¶ 12.
27
Ataur Rahman vs BM Muhibur Rahman, 14MLR (AD) 138.
28
Advocate Sultana Kamal vs Bangladesh 14 MLR (HCD)105.
29
Ahsanullah vs Bangladesh, 1991 44 DLR 179.
30
Compromis, ¶5.

17
 b) The situation was tantamount to internal disturbance.
Article 141A (1) requires the security of the country to be threatened by internal disturbance,
for declaring the state of Emergency. Internal disturbances are typically acts of public disorder
accompanied by acts of violence.31 The President of Braavos on March 28 called state of
emergency on the ground of internal security. However, in Binod Rao vs Minocher Rustom
Masan case32 it was observed that Proclamation of Emergency was made on the ground that
there was internal disturbance threatening the security of India, which was of such a nature that
a grave emergency had arisen which would affect the public safety, the internal security and
the maintenance of public order.

Accordingly, the situation that had been existing in the State had created a threat against the
internal security of the country. People started to attack the hospitals; essential services like
grocery shops and drug stores were closed down due to burglary; small mobs at highways
apprehended and destroyed public vehicles containing food supplies.33 Comprehensively, the
situation was a threat to the public safety and right to life under Article 32 of the Constitution
as well, since the virus spared deadly,34contagious.35 As the shutdown was not working and
made the situation worse. However, the state of emergency was not unconstitutional since it
was necessary to control the situation. Therefore, the situation exhibited a valid ground for
proclaiming state of emergency by the president.

c) Prior permission of the Prime Minister was essential.

To declare the state of emergency by the president under Article 141A of the constitution, a
written permission from the prime minister is needed. Moreover, in such a case, an approval
from the parliament is needed under Article 141A (2). Accordingly, notwithstanding the fact
that there was no mentioning of such permission to declare the emergency, the declaration of
emergency itself led us to presume that it was approved by the parliament. On the other hand,
satisfaction of the president is in reality the satisfaction of the Prime Minister.36 Evidently, the
consent of the prime minister was present impliedly.

d) Emergency was proclaimed as a preventive manner.

31
ICRC, Violence and the Use of Force A Book By ICRC,
32
Binod Rao vs Minocher Rustom Masan (1976) 78 BOMLR 125.
33
Compromis, ¶¶ 4, 5.
34
Compromis, ¶3.
35
Clarifications, ¶36.
36
Mahmudul Islam, Constitutional Law of Bangladesh, (2nd ed, Mullick Brothers 2009) ¶ 319.

18
Article 141A (3) stated that if the president that the security of Bangladesh, or any part thereof,
is threatened by war or external aggression or by internal disturbance may be made before the
actual occurrence of war or any such aggression or disturbance. We get to know that the
emergency was proclaimed just after 2 days of the declaration of shutting down as the situation
of the country got worst there was lawlessness around the country.37 Lawlessness is a behavior
that is illegal or not controlled by laws.38 Thus lawlessness is a situation when the legal system
of the country fails to control the crime which might increase the crime rate. In this situation,
the president found it necessary to proclaim emergency as the situation was getting out of
control. In the year of 1981, in Bangladesh a state of emergency was declared by Vice
President Abdus Sattar, who assumed the duties of Acting President. Rebels announced over
the radio from Chittagong that they were taking over the Government, but officials in Dacca
said that they were still in control.39 Visibly, this emergency was proclaimed as a preventive
manner. Accordingly, this emergency -proclaimed as a preventive manner to ensure the
security of the state, is justified; as such, was not unconstitutional.

2. The situation became threatening to right to life.

State is bound to provide its citizen’s right to life as enunciated under Article 32 of the
Constitution. Life is the most precious and nothing can be more fundamental than preservation
of life.40 It is clarified from the fact that Till mid-May, Braavos has recorded 37751 confirmed
cases of Canin 19 with a death toll of 522.41 Moreover, WHO declared a ‘Public Health
Emergency of International Concern.’42 To prevent the spreading of the virus the state had to
stop physical human contact. To battle the spread of the virus, government declared a 10 days
shutdown from 26 of March, mentioned in the facts43. But it did not work out the way
government wanted. Apart from that the situation got worst and a lawlessness situation and
clash were spread around the country.44 To save the people from getting affected, to protect the
right to life of the people, there was no other way then to call Emergency. Article 3 of UDHR
ensures one’s right to life, liberty and security of person. Proclaiming the emergency was to
ensure the right to life and the security of individuals. Article 6 of the International Covenant
on Civil and Political Rights [ICCPR] also mentions that Every human being has the inherent

37
Compromis, ¶ 5.
38
Cambridge Dictionary.
39
The New York Times (31May 1981), Section 1, Page 1.
40
Mahmudul Islam, Constitutional Law of Bangladesh, (2nd ed, Mullick Brothers 2009) ¶ 194.
41
Compromis, ¶ 3.
42
Compromis, ¶ 3.
43
Compromis, ¶ 4.
44
Compromis, ¶ 5.

19
right to life. This right shall be protected by law. Accordingly, the proclamation of emergency
was justified as it was to secure the right to life of the people which is a fundamental right.

B. THE COURTS CAN CLOSE ITS PROCEEDING WITHOUT THE SUSPENSION OF

ENFORCEMENT OF FUNDAMENTAL RIGHTS DURING EMERGENCIES UNDER
ARTICLE 141C AND IT DOES NOT VIOLATE THE RIGHT TO ENFORCE
FUNDAMENTAL RIGHTS UNDER THE CONSTITUTION.

1. Response for Public Health Emergency of International Concern.

On 30th January, 2020, WHO declared a Public Health Emergency of International Concern.45
In case of Public Health Emergency of International Concern, according to, WHO wants every
member country to determine rapidly the control measures required to prevent domestic and
international spread.46 As Braavos is a contracting party to the WHO Constitution, it is bound
to follow the regulation provided by WHO. Moreover, requires the state to adopt the measures
directed by WHO. Accordingly, the declaration of shutdown and closing of courts by the
government was such a measure to stop the spreading of Canin 19. It was a controlling
measures required to prevent domestic and international spread as the WHO directed.

2. Closure of the Court was not a consequence of State of emergency.

Closure of court proceeding without the suspension of enforcement of fundamental rights
during emergencies under Article 141C did not violate the right to enforce fundamental rights
under the Constitution because the court did not close as a consequence of the Emergency
under Article 141C. Rather the government declared general holidays under rule no 37 of
schedule I of the Rules of Business. Moreover, the Supreme Court decides their holidays by
itself under Chapter III of Supreme Court of Bangladesh (High Court Division) Rules 197347
and the Supreme Court of Bangladesh (Appellate Division) Rules 1988.48 Enjoying the
vacation is a statutory right of the Court and it did not violate the right to enforce fundamental
rights under the constitution and the Court did not need to suspend the right to enforce the
fundamental right under Article 141C of the constitution.

3. The closure of the Court was aimed to protect the collective right to life.

45
Compromis, ¶3.
46
INTERNATIONAL HEALTH REGULATIONS (2005), Annex I article 6,
47
Chapter III, Supreme Court of Bangladesh (High Court Division) Rules 1973.
48
Order 2 rule 3, Supreme Court of Bangladesh (Appellate Division) Rules 1988.

20
The constitution ensures the right to life for the citizen of the country under Article 32 of the
Constitution. On the other hand, court is a place where judges, lawyers and mass people meet
together. Keeping the courts open means to endanger the life of these people. Closing of court
might violate the right to enforcement of fundamental rights but this measure was taken to
ensure the right to life of judges, lawyers and mass people collectively. Because no right is as
basic and fundamental as the right to life and personal liberty and the exercise of all other rights
is dependent on the existence of right to life and liberty.49 In Francis Coralie Mullin vs The
Administrator50 it was held that the fundamental right to life is the most precious human right
and which forms the ark of all other rights. This right to life cannot be derogated anyhow and
the state is bound to secure this fundamental right. Thus, closing of the Court was not violative
of the right to enforce fundamental rights guaranteed under the Constitution rather it protected
the right to life of the judges, lawyers and mass people.

4. Virtual Court was introduced shortly as a remedy.

Closing of courts did not violate the right to enforce fundamental rights under the Constitution
as it came up with virtual court within one month after the closure. The president made an
ordinance51 to let the court starts proceeding virtually. During this time the restriction was
reasonable because there was a pandemic spreading around. In the case Collector of Custom
Vs Sampathu Chetty, “it was concluded that the reasonableness of restraint would have to be
judged by the magnitude of the evil which is the purpose of the restraint or curb or eliminate.”52
Exactly the same happened at Calcutta in India. The Calcutta High Court stopped its proceeding
for corona situation from 10th of April to 30th of April and then came up with Virtual court.
Same initiative was taken by Pakistan also. After opening of virtual court, ‘Equality for law’
also got chance to file the petition in the High Court. Thus, right to enforce the fundamental
rights was not restricted.

49
Mahmudul Islam, Constitutional Law of Bangladesh, (2nd ed, Mullick Brothers 2009) ¶ 193.
50
Francis Coralie Mullin vs The Administrator , 1981 AIR 746, 1981 SCR (2) 516.
51
Usage of information and Communication Technology in Court, 2020, Ordinance 1 of 2020.
52
Collector of Custom Vs Sampathu Chetty (1963) SC AIR 216, ¶ 35.

21
 PRAYER FOR RELIEF
The State of Braavos most respectfully requests this honorable Court to adjust and declare that:

1. Non-admission of Sersai did not violate Sersai’s fundamental rights and neither the
state nor Medica could be held liable for the violation of fundamental right.
2. The declaration of national emergency did not violate the Constitution and closing of
all Courts without suspension of enforcement of fundamental rights during emergencies
did not violate the right to enforce fundamental rights under the Constitution.

Respectfully submitted,
LEGAL REPRESENTATIVE FOR THE RESPONDENTS.

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