before the honourable high court division of the …

T7P

BEFORE THE HONOURABLE HIGH COURT DIVISION OF

THE SUPREME COURT OF STATE OF BRAAVOS

EQUITY FOR ALL

V

STATE OF BRAAVOS

MEMORIAL FOR THE PETITIONER

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TABLE OF CONTENTS

MEMORIAL FOR THE PETITIONER ................................................................................ I

TABLE OF CONTENTS ................................................................................................... II

TABLE OF ABBREVIATIONS .......................................................................................... V

INDEX OF LEGAL AUTHORITIES ................................................................................ VII

STATEMENT OF JURISDICTION ................................................................................... XI

STATEMENT OF FACTS .............................................................................................. XII

ISSUES RAISED ......................................................................................................... XVI

SUMMARY OF ARGUMENTS .................................................................................... XVII

ARGUMENTS ADVANCED ............................................................................................... 1

1. The non-admission of Sersai violated her fundamental right and both state and Medica

are liable for the violation ........................................................................................... 1

1.1 Sersai was denied the emergency medical care ................................................... 1

1.1.1 Serasi’s condition was a medical emergency ....................................................... 1

1.1.2 Right to receive emergency medical care is a part of right to life ....................... 1

1.2 Sersai’s Right to health and right to life was violated ........................................ 2

1.2.1 Right to health is a part of right to life ................................................................ 3

1.2.2 Right to life is one of the fundamental rights ....................................................... 3

1.3 The hospitals did not follow government’s directive .......................................... 4

1.4 Doctors are under obligation to extend medical care in emergency situation . 4

1.4.1 The conduct of the hospital goes against the code of medical ethics of Braavos 4

1.4.2 The conduct of the hospital goes against the code of medical ethics in other

jurisdictions ..................................................................................................................... 5

1.5 The state failed to meet its constitutional obligation .......................................... 5

1.5.1 There was a violation of article 18 and 15 of the constitution ............................ 5

1.5.2 Even though not enforceable, fundamental principles act as constitutional

obligation ......................................................................................................................... 6

1.1.7 Financial constraint cannot be an excuse for refusing medical care ..................... 6

III | P a g e

1.5.3 The state failed to make a co-ordinated network of hospitals ............................. 7

1.6 There was violation of rights under international law ....................................... 7

1.6.1 International law can be used to interpret the scope of constitutional right ....... 7

1.6.2 There was a violation of Universal Declaration of Human Rights ...................... 7

1.6.3 There was a violation of International Covenant on Economic, Social and

Cultural Rights ................................................................................................................ 8

1.7 Medica is also liable for the violation fundamental rights ................................. 8

1.7.1 Article 102(1) does not differentiate between public and private body ............... 8

1.7.2 Article 102(2) can be effective against private act done under public domain ... 9

1.7.3 The latest test of judicial reviewability of any act is the Datafin test .................. 9

1.7.4 The private hospitals work as the alter ego of the government ......................... 10

2 The declaration of a national emergency was in violation of the Constitution and

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 .......................................................................................................... 10

2.1 The Emergency Declaration created a procedural vacuum in the constitutional

framework of the State of Braavos. .................................................................................. 11

2.2 The state of emergency was declared without any prior planning which ultimately

violated the fundamental rights of the citizens: ................................................................ 12

2.3 The proclamation of emergency is violative of the International Covenant on Civil

and Political Rights ........................................................................................................... 12

2.4 The emergency state so declared reflects the mala fide intention and ulterior motive

of the State which is to curtail the rights of citizens to seek remedy and judicial recourse

13

2.5 The enforcement of fundamental rights of the Constitution of the State of Braavos

were curtailed due to the declaration of a national emergency ......................................... 14

2.6 The spirit of right to equality of law and equal protection of law were violated

resulting in severe disparity among citizens ..................................................................... 15

2.7 The closure of all courts without any alternative remedy resulted in violation of

fundamental rights including article: 27, 31, 35(3),44 and 102 as well............................ 16

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PRAYER ........................................................................................................................ 17

V | P a g e

TABLE OF ABBREVIATIONS

AD Appellate Division

ALR Apex Law Report

art Article

BDHC Bangladesh High Court

BLD Bangladesh Legal Decisions

BLT Bangladesh Legal Times

BSCR Bangladesh Supreme Court Reports

CLC Chancery Law Chronicles

DLR Dhaka Law Reports

EWCA England and Wales Court of Appeal

DULJ Dhaka University Law Journal

HCD High Court Division

ICElatifuSCR International Covenant on Economic, Social and Cultural

Rights

ICCPR International Covenant on Civil and Political Rights

MLR Mainstream Law Reports

para Paragraph

QB Queen's (or King's) Bench

s Section

VI | P a g e

SC Supreme Court

SCOB Supreme Court Online Bulletin

SCC Supreme Court Chronicles

UDHR Universal Declaration of Human Rights

UN United Nations

WLR Weekly Law Reports

VII | P a g e

INDEX OF LEGAL AUTHORITIES

Cases

Bangladeshi Cases

Bibliographical information Page No.

Abdul Hakim v Government of Bangladesh (2014) 34 BLD 129 [13]. 9

AF Shahab Uddin Ahmed v National Shooting Federation,

Bangladesh LEX/BDHC/0186/2010

10

Bangladesh National Women Lawyers Association v Bangladesh

(2009) 14 BLC 694

7

Bangladesh v Bangladesh Legal Aid and Services Trust (2016) 8

SCOB 1 [92].

4

Delwar Ali Khan & another Vs Sajedul Haque (1986)15 CLC (AD)

[1601].

7

Hussain Muhammad Ershad v Bangladesh (2001) 21 BLD (AD). 7

Idrisur Rahman v Bangladesh (2008) 37 CLC (HCD) 3993.

Liberty Fashion Wears Limited v Bangladesh Accord Foundation

(2017) 69 DLR 519.

8

Mohiuddin Farooque v Bangladesh (1996) 48 DLR 438 [19].

386

3

Mohiuddin Farooque v Bangladesh (1997) 49 DLR 1 [96].

4

Sri Kripa Shindu Hazra v The State and others (1977) 6 CLC (HCD) 14

VIII | P a g e

Syed Saifuddin Kamal v Bangladesh (2018) 13 SCOB (HCD) 85. 1

Tayeeb vs Bangladesh, (2015) 67 DLR (AD) 57.

11

Wahab v Secretary, Ministry of Land (1996) 1 MLR 338.

16

Foreign Cases


R (Datafin plc) v Panel on Take-overs and Mergers [1987] QB 815. 9

Parmanand Katara v Union of India (1989) 4 SCC 286.

1,4

Laxman Taneja v State of Rajasthan (2005) 2 RLW(Raj) 1261. 2

State of Punjab v Mohinder Singh Chawla (1997) 2 SCC 83. 3

State of Punjab v Ram Lubhaya Bagga (1998) 1 SCR 1120. 3

Maneka Gandhi v Union of India (1978) AIR 597.

4

Paschim Banga Khet Mazdoor Samity v State of West Bengal (1996)

4 SCC 36.

2,7

Kadra Pahadiya And Ors Etc vs State of Bihar (1997) AIR SC 3750

16

State of Rajasthan V Union of India, (1977) 8 AIR SC 1361.

14

Minerva Mills v Union of India AIR (1980) SC 1789. 14

The Cheng Poh alias Char Mer v The Public Prosecutor of Malaysia

(1980) AC 458.

13

IX | P a g e

Domestic and International Legislation


The Constitution of the People’s Republic of Bangladesh, 1972 2,4,5,6

Act of Disaster Management, 2012. 12

Universal Declaration of Human Rights, 1948 7

UN Committee on Economic, Social and Cultural Rights, ‘General

Comment No. 14’ on ‘The right to the highest attainable standard of

health (art 12)’ (2000) UN Doc HRI/GEN/Rev7.

8

International Covenant on Economic, Social and Cultural Rights,

1966

8,9

International Covenant on Civil and Political Rights, 1966 7,8,12

Geneva Declaration accepted by the General Assembly of the World

Medical Association at London, “Code of Medical Ethics

Declaration” (October 12, 1949), code 4.

5

Books, Journals and Treaties


Mahmudul Islam, Constitutional Law of Bangladesh (3rd edn,

Mullick Brothers 2012)

4

Grover A, Misra M and Rangarajan L, “Right to Health” in Colleen

M Flood and Aeyal Gross (eds), The Right to Health at the

Public/Private Divide: A Global Comparative Study (Cambridge

University Press 2014)

7

Mohammad Waheduzzaman, ‘Economic, Social and Cultural Rights

under the Constitution: Critical Evaluation of Judicial Jurisprudence

in Bangladesh’ (2014) 4(1 & 2) Bangladesh Journal of Law.

6

Lois Snyder Sulmasy and Thomas A Bledsoe, ‘American College of

Physicians Ethics Manual’ (2019) AIM

<www.acpjournals.org/doi/10.7326/M18-2160> accessed 3 August

2020.

5

X | P a g e

Dr. Ridwanul Hoque and Emraan Azad, ‘Judicial Review of State

Contracts: Piercing the Narrow Divide between ‘Pure and Simple’ and

‘Statutory or Sovereign’ Contracts’ (2017) 28 DULJ 35, 40.

9

Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta (eds), The

Oxford Handbook of the Indian Constitution (Oxford University Press

2016) 261.

14

Latifur Rahman, The Constitution of the People’s Republic of

Bangladesh: With Comments & Case-Laws (Mullick Brothers 2004)

235.

15

American Medical Association, ‘Code of Medical Ethics: Physicians

& the health of the community’ (American Medical Association, 25

June 2016) <https://www.ama-assn.org/delivering-care/ethics/code-

medical-ethics-physicians-health-community> accessed 3 August

2020.

5

Articles


M Qaium, ‘Closure of Supreme Court: Fundamental Rights

Suspended during Pandemic?’ (The Independent Bangladesh Online

Edition) <http://m.theindependentbd.com/post/244799> accessed on

10 August, 2020.

11

Md Azhar Uddin Bhuiyan, ‘Bangladesh’s constitutionally pragmatic

response to COVID-19’, (Oxford Political Review, (5 June 2020)

<http://oxfordpoliticalreview.com/2020/06/05/bangladeshs-constit

utionally-pragmatic-response-to-covid-19/> accessed 9 August 2020.

11

XI | P a g e

STATEMENT OF JURISDICTION

Equality for All, the Applicant, has filed this Writ Petition before the Honorable High Court

Division of the Supreme Court of Braavos, invoking the jurisdiction of the court under Article

102 read with Article 44(1) & 26 of the Constitution of state of Braavos.

XII | P a g e

STATEMENT OF FACTS

Salient Features of the State of Braavos

1. 1971: Braavos is a densely populated riverine country located in South Asia on the

northern littoral of the Bay of Andalos. Modern Braavos emerged as an independent

nation in 1971 after breaking away and achieving independence from Pentos in the 9

months long liberation war. With a population of 10 crore in an area of 50,000 square

kilometers, historically it had an agro-based labor force. But with rapid urbanization

and industrialization, most of its labor force is capital centric with 2000 people moving

to the capital each day. Its capital, Dorne is the most densely populated city in Braavos

with 16.5 million people living in an area of 400 km.

2. 1972: The Constitution of Braavos, drafted after independence laid down the structure

of a liberal democratic parliamentary republic with socialist influences which is still in

practice.

The State Healthcare Services

In Braavos, healthcare is offered either through government-run hospitals or through privately-

run clinics. Over the last decades, the key health indicators such as life expectancy and

coverage of immunization have improved notably whilst infant mortality, maternal mortality

and fertility rates have dropped significantly. Nevertheless, Braavos is still lagging in its public

health care services as the most critical challenge is in the arena of human resources for health.

2019: The ‘State of Health in Braavos 2019’ report published by the civil society group –

Health Watch made some alarming revelations. Braavos is still running a staggering shortage

of over 60,000 doctors and also have a deficit of almost 140,000 nurses with only 1 nurse per

3 physicians. However, the ratio should have been the other way round, i.e. three nurses for

one physician. So, the publicly funded healthcare system is used by only 25% of its entire

population as a result of massive lack of doctors, nurses, physicians, medical utilities, drugs

etc.

XIII | P a g e

The Outbreak of Canine 19

1. 31 December 2019: A pneumonia of unknown cause detected in Westeros, Cornfield was

first reported to the WHO Country Office.

2. 30 January 2020: The outbreak of candida virus was declared a Public Health Emergency

of International Concern.

3. 11 February 2020: WHO announced a name for the new candida virus, Canine-19.

4. 8 March 2020: Braavos announced the first confirmed candida virus case in the country

after 3 people tested positive for the infectious virus in the capital Dorne.

5. Mid-May of 2020: Soon, Braavos met with an unprecedented crisis in its health care services

as many general people and health service providers were infected and many were dead with

Canine-19.

Till mid-May, Braavos has recorded 37,751 confirmed cases with a death toll of 522. With as

many as only 30 labs conducting candida virus tests across the country and more than 500

health care service providers already infected with the virus, the entire healthcare system of

Braavos has been shackled in an unprecedented public health reality check.

Healthcare Amenities during the Pandemic

1. 26 March 2020: The Government of Braavos declared a 10-day shutdown effective

from this day to 4 April, 2020 to battle the spread of the candida virus. Both private and

public sectors except emergency services were put to a temporary halt. Armed forces

were also deployed in all 64 districts of Braavos in aid of the civil authorities to assist

district administrations across Braavos to ensure social distancing and aid in other

necessary measures. Though emergency services including hospitals, medical and

diagnostic centers were exempted from closure, many hospitals and clinics denied

treatment to regular patients. As a result, many lost lives, some of them elderly, sought

treatment for kidney and cardiac ailments with no canine symptoms.

2. 12 April 2020: Deputy Director of Health Services said that no hospitals can deny

treatment to any patients including those with fever. He added that the department had

communicated the same with all the city-based private hospitals with a directive on 12

April, 2020.

XIV | P a g e

Proclamation of Emergency and Closure of all Courts

The relatives of those who did not receive medical treatment went violent, and the entire

situation of Braavos became jeopardized.

1. 28 March 2020: To counter the ongoing lawless situation, the President of Braavos

issued a Proclamation of Emergency on the ground of internal security. It was declared

that the Freedom of Movement and Freedom of Assembly shall stand suspended.

2. 29 March 2020: The Supreme Court authorities had issued a notification declaring

closure for all courts in Braavos till April 2 due to the outbreak of Canine-19. Later, the

holiday was extended for the 5th time until 11 May 2020, which left the citizens with

no remedy for any violation of right.

Pregnant Sersai and Death of her Unborn Child

15 April 2020: Sersai, a resident of Castamere in Dorne who was pregnant for 9 months and

scheduled to deliver in June 2020, was taken to a nearby private hospital named Medica with

high fever and severe pain. Medica refused to admit any patient with high fever and referred

her to Dorne Medical College Hospital (DMCH). When Sersai was taken to DMCH, the

attending doctor refused to admit Sersai suggesting to take her to Mothercare Maternity

Hospital. Sersai endured severe labour pain and had to deliver the baby on the road to

Mothercare Maternity Hospital. Sersai’s husband blamed both the hospitals and decided to file

a case against them. But due to the extended Proclamation of National Emergency, he could

not file the case.

Launching of Online Court

1. 23 April 2020: The Law Ministry published a Gazette Notification of the Ordinance

titled ‘Usage of Information and Communication Technology in Court, 2020

(Ordinance No. I of 2020)’ following approval from the President of Braavos under

Article 93(1) of the Constitution to allow courts to work digitally via video-conference.

XV | P a g e

2. 25 April 2020: The Supreme Court announced that it would reopen in a limited capacity

to ensure that people were able to approach the Court with their most urgent concerns,

keeping in mind social distancing policies. In addition to this step, the Supreme Court

through its ‘Practice Directions’ announced a new initiative to allow for certain urgent

matters to be heard via the Online Forum, ‘My Court’.

3. 12 May 2020: This whole thing was questioned by “Equality for All,” along with the

declaration of Proclamation of Emergency on the account that the entire online court

process is discriminatory as well as the halting of the proceedings of the Court without

taking recourse to the Article 141C of the Constitution. It was accused in the press

conference arranged by “Equality for All” as being unconstitutional and a threat to the

Rule of Law of the State of Braavos.

XVI | P a g e

ISSUES RAISED

Hearings should be made before the Honorable High Court Division of the Supreme

Court of Braavos on the following issues:

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

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

fundamental right?

2. Whether the declaration of a national emergency was violative of the

Constitution and 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?

XVII | P a g e

SUMMARY OF ARGUMENTS

1. The non-admission of Sersai violated her fundamental right and both state

and Medica are liable for the violation

There was a violation of Article 31 and 32 of the Constitution since refusal of admission

to Sersai violated her right to life. Doctors are under obligation to extend medical care

in emergency situation as per the medical ethics of Braavos and also other jurisdictions.

Moreover, the hospitals violated the directive given by the government to admit any

patient despite having fever. There was also a violation of Article 15 and 18 of the

Constitution. The fundamental principles of state policy cast obligation on the state to

ensure health facilities to the citizen. Medica despite being a private hospital is also

liable for the violation of fundamental right as Article 102 of the Constitution does not

make a distinction between public and private bodies.

2. The declaration of a national emergency was violative of the Constitution

and 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.

The declaration of a national emergency was in violation of the Constitution as it

created a procedural vacuum in the constitutional framework of the State of Braavos. It

is known to us all that fundamental rights guaranteed in the Constitution are not

alienable. Here, the satisfaction of the President was in question and also the state of

emergency and the closure of all courts were declared without any prior planning which

ultimately violated the fundamental rights of the citizens.

Furthermore, the closure of all courts without any alternative remedy not only resulted

in violation of fundamental rights including Article 27, 31, 35(3), 44 and 102, but also

the proclamation of emergency is in violation of the International Covenant on Civil

XVIII | P a g e

and Political Rights (ICCPR). Besides, it reflects the mala fide intention and ulterior

motive of the State which is to curtail the rights of citizens to seek remedy and judicial

recourse. The spirit of the Constitution ensuring right to equality of law and equal

protection of law were violated resulting in severe disparity due to this situation.

1 | P a g e

ARGUMENTS ADVANCED

1. The non-admission of Sersai violated her fundamental right and both state

and Medica are liable for the violation

1.1 Sersai was denied the emergency medical care

1.1.1 Serasi’s condition was a medical emergency

An emergency medical condition is defined as a medical condition manifesting to itself

by acute symptoms of sufficient severity such that the absence of immediate medical

attention could reasonably be expected to result in-

(i) placing the health of the individual in serious jeopardy;

(ii) serious impairment to bodily functions or

(iii) serious dysfunction of any bodily organ or part.1

According to Anti-hospital Deposit Law of Philippine, ‘Emergency’ means ‘…in the

case of a pregnant woman, permanent injury or loss of her unborn child, or would result

in a noninstitutional delivery’.2

Here, Sersai was a pregnant lady who endued severed labour pain and then delivered a

dead child in the roadside.3 It was clearly a case of medical emergency.

1.1.2 Right to receive emergency medical care is a part of right to life

Justice Syed Refaat Ahmed in Syed Saifuddin Kamal v Bangladesh4 held that the

failure to ensure emergency medical care both by government and private medicals

constitutes a violation of Article 27, 31 and 32 of the Constitution.

The Indian Supreme Court in the case of Parmanand Katara v Union of India 5

recognized the obligation of the Government to preserve life. In the said case, a victim

of a scooter accident was denied treatment as the hospital did not have the requisite

arrangements for medico-legal cases. Failure to receive timely treatment eventually led

1 Kauffman v. Franz (2009) US District LEXIS 88749.

2 Anti-hospital Deposit Law, s 2(a) (Philippine).

3 Moot Compromis, para 6.

4 Syed Saifuddin Kamal v Bangladesh (2018) 13 SCOB (HCD) 85.

5 Parmanand Katara v Union of India (1989) 4 SCC 286.

2 | P a g e

to the victim's death. While interpreting the ambit of the right to life under Article 21

of the Constitution, the Supreme Court held ‘Article 21 of the Constitution casts the

obligation on the State to preserve life’.6

In the case of Paschim Bangal Khet Mazdoor Samity7 , a member of the petitioner

Mazdoor Samity suffered a brain injury after falling from a train and was denied

treatment at several hospitals due to lack of expertise and lack of beds and was forced

to seek treatment at a private hospital. The petition was filed for compensation of the

expenses incurred. The court held that government hospitals run by the State and the

medical officers employed therein are duty bound to extend medical assistance for

preserving human life. Failure on the part of a government hospital to provide timely

medical treatment to a person in need of such treatment results in violation of his right

to life guaranteed under Article 21.8 To preserve health and obtain medical aid in

furtherance of self-preservation is part of right of life under Article 21 of the

Constitution of India.9

Sersai was in need of emergency care from the hospitals. But both the public and private

hospital refused to give her treatment.10 Therefore, her right to receive emergency

medical care was violated.

1.2 Sersai’s Right to health and right to life was violated

Article 18 of the Constitution states, ‘the State shall regard the raising of the level of

nutrition and the improvement of public health as among its primary duties’. 11

Moreover, Article 15 of the Constitution states that government should secure ‘the

provision of the basic necessities of life, including food, clothing, shelter, education and

medical care’.12

6 ibid

7 Pashchim Bang Khet Mazdoor Samiti v State of West Bengal (1996) AIR (SC) 2426.

8 ibid

9 Laxman Taneja v State of Rajasthan (2005) 2 RLW(Raj) 1261.


11 Constitution of the People's Republic of Braavos, art 18.


3 | P a g e

Sersai, a pregnant woman, was taken to a private hospital named Medica. But it refused

to admit her. She was then referred to Dorne Medical College Hospital (DMCH), a

public hospital13. The doctors of DMCH too refused to give her treatment. Thereafter,

she was forced to give birth to a dead child at the road side on her way to another

hospital.14 This constitutes a clear and flagrant violation of right to health.

1.2.1 Right to health is a part of right to life

The Appellate Division in Mohiuddin Farooque v Bangladesh15 held that ‘right to life

under Articles 31 and 32 of the Constitution not only means protection of life and limbs

necessary for full enjoyment of life but also includes, amongst others, protection of

health and normal longevity of an ordinary human being’. The Indian Supreme Court

in State of Punjab v Mohinder Singh Chawla16 held that ‘it is now settled law that right

to health is an integral to right to life and government has constitutional obligation to

provide the health facilities’. It was further held in State of Punjab v Ram Lubhaya

Bagga17 that ‘the court has time and again emphasized to the Government and other

authorities for focusing and giving priority to the health of its, citizen, which not only

makes one's life meaningful, improves one's efficiency, but in turn gives optimum

output’. The court went on to say that ‘to secure protection of one's life is one of the

foremost obligations of the State, it is not merely a right enshrined under Article 21 but

an obligation cast on the State to provide this both under Article 21 and under Article

47 of the Constitution. The obligation includes improvement of public health as its

primary duty’.18

Therefore, it is clear that the right to life also includes right health and the non-

admission of Sersai in the hospitals constituted not only the violation of the right to

health but consequently, her right to life as well.

1.2.2 Right to life is one of the fundamental rights

13 Moot Clarification, para 35.


15 Mohiuddin Farooque v Bangladesh (1996) 48 DLR 438 [19].

16 State of Punjab v Mohinder Singh Chawla (1997) 2 SCC 83.

17 State of Punjab v Ram Lubhaya Bagga (1998) 1 SCR 1120.

18 Ibid.

4 | P a g e

Articles 31 and 32 of the Constitution of Braavos protect right to life as a fundamental

right.19 Article 31 of the Constitution says, ‘…no action detrimental to the life, liberty,

body, reputation or property of any person shall be taken except in accordance with

law’. Article 32 says, ‘Everyone has the right to life, liberty and security of person’.20

Article 32 is quite explicit in providing the right to life to people. On the other hand,

Article 31 is couched in a negative language, but it nevertheless confers the

fundamental right to life and personal liberty.21 Right to life cannot be compared with

any other right since without this all the other rights are meaningless.22 No right is so

basic and fundamental as the right to life and exercise of all other rights is dependent

on the existence of the right to life.23

1.3 The hospitals did not follow government’s directive

Deputy Director of Health Services said that no hospitals can deny treatment to any

patients, including those with fever.24 He added that the department had communicated

the same with all the city-based private hospitals with a directive on 12 April, 2020.25

Here, none of the public or private hospitals admitted Sersai. This is undoubtedly a clear

violation of the directive of the government.

1.4 Doctors are under obligation to extend medical care in emergency situation

A doctor is positioned to meet the State obligation and is therefore, duty-bound to

extend medical assistance for preserving life.26 Every doctor, whether at a Government

hospital or otherwise, has the professional obligation to extend his services with due

expertise for protecting life.27

1.4.1 The conduct of the hospital goes against the code of medical ethics of

Braavos

19 Mohiuddin Farooque v Bangladesh (1997) 49 DLR 1 [96].


21 Maneka Gandhi v Union of India (1978) AIR 597.

22 Bangladesh v Bangladesh Legal Aid and Services Trust (2016) 8 SCOB 1 [92].

23 Mahmudul Islam, Constitutional Law of Bangladesh (3rd Edn, Mullick Brothers, 2012) 269.


25 ibid Parmanand Katara v Union of India (1989) 4 SCC 286.

26 Parmanand Katara v Union of India (1989) 4 SCC 286.

27 Ibid.

5 | P a g e

The declaration form28 in accordance with the Code of Medical Ethics of Braavos

includes the following ‘the health and well-being of my patient will be my first

consideration’ and ‘I will maintain the utmost respect for human life’. Moreover, the

code also states that in all dealings with patients, the interest and advantage of their

health should along influence his conduct towards them. As their trust to their

profession is great so the obligation to be true to their interest is greater and any single

failure in this respect is wholly discreditable and inexcusable.29

1.4.2 The conduct of the hospital goes against the code of medical ethics in

other jurisdictions

According to the World Medical Association Declaration of Geneva, a member of

medical profession shall solemnly pledge stating that health of the patient will be the

first consideration.30 American College of Physicians Ethics Manual states, ‘the ethical

imperative for physicians to provide care overrides the risk to the treating physician,

even during epidemics.’31 Medical Ethics Opinion by American Medical Association

says ‘individual physicians have an obligation to provide urgent medical care during

disasters. This obligation holds even in the face of greater than usual risks to physicians’

own safety, health, or life’.32

1.4.3 Any death because of non-admission amounts to negligence

Recently, Supreme Court in Sheikh Abdullah Al Mamun v Bangladesh has declared

that any death because of non-admission would amount to criminal negligence.

1.5 The state failed to meet its constitutional obligation

1.5.1 There was a violation of Article 18 and 15 of the Constitution

28 Code of Medical Ethics of Braavos, 1983, Declaration.

29 Code of Medical Ethics of Braavos, 1983.

30 Geneva Declaration accepted by the General Assembly of the World Medical Association at London,

“Code of Medical Ethics Declaration” (October 12, 1949), code 4.

31 Lois Snyder Sulmasy and Thomas A Bledsoe, ‘American College of Physicians Ethics Manual’ (2019)

AIM <www.acpjournals.org/doi/10.7326/M18-2160> accessed 3 August 2020.

32American Medical Association, ‘Code of Medical Ethics: Physicians & the health of the community’

(American Medical Association, 25 June 2016) <https://www.ama-assn.org/delivering-care/ethics/

code-medical-ethics-physicians-health-community> accessed 3 August 2020.

6 | P a g e

Article 18 of the Constitution states, ‘the State shall regard the raising of the level of

nutrition and the improvement of public health as among its primary duties’. 33

Moreover, Article 15 of the Constitution states that government should secure ‘the

provision of the basic necessities of life, including food, clothing, shelter, education and

medical care’.34

1.5.2 Even though not enforceable, fundamental principles act as constitutional

obligation

In the case of Zulhas Uddin Ahmed, 35 the court observed that Article 18 of the

Constitution has imposed obligation on the state to take measures for sound health of

its citizens. The court observed in Wahab v Secretary, Ministry of Land that although

not judicially enforceable, the fundamental principles of state policy cast an obligation

upon the state to act on them.36 Article 8(2) states that the principle set out in part II of

the Constitution shall be fundamental to the governance of Bangladesh, shall be applied

to by the state in making laws, shall be a guide to the interpretation of the constitution

and of other laws but shall not be judicially enforceable.37 The constitutional mandate

that ‘these principles shall be guide to the interpretation of the constitution’ when read

with other prior constitutional mandate that ‘these principles shall be fundamental to

the governance of Bangladesh’ clearly means that other provisions of the Constitution

should be construed in conformity with the fundamental principles.38

1.1.7 Financial constraint cannot be an excuse for refusing medical care

It is no doubt true that financial resources are needed for providing medical facilities.

But at the same time, it cannot be ignored that it is the constitutional obligation of the

State to provide adequate medical services to the people. Whatever is necessary for this

purpose has to be done. In the context of the constitutional obligation to provide free



35 Chairman, National Board of Revenue v Advocate Zulhas Uddin Ahmed (2010) 39 CLC (AD).

36 Wahab v Secretary, Ministry of Land (1996) 1 MLR 338.

37 Constitution of the People's Republic of Braavos, art 8(2).

38 Mohammad Waheduzzaman, ‘Economic, Scial and Cultural Rights under the Constitution: Critical

Evaluation of Judicial Jurisprudence in Bangladesh’ (2014) 4(1 & 2) Bangladesh Journal of Law.

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legal aid to a poor accused, this Court has held that the State cannot avoid its

constitutional obligation in that regard on account of financial constraints. The said

observations would apply with equal, if not greater, force in the matter of discharge of

constitutional obligation of the State has to be kept in view.39

1.5.3 The state failed to make a coordinated network of hospitals

An ideal medical care system should have a co-ordinated network of hospitals in which

all the hospitals will know about the resources of each other. In that way, the hospitals

will be able to refer the patient to the right one in the emergency situation. The Indian

Supreme Court in Paschim Banga Khet Mazdoor Samiti laid down guidelines to create

a coordinated network of hospitals, which would ensure that each hospital has

information about where to best refer a patient.40

1.6 There was violation of rights under international law

1.6.1 International law can be used to interpret the scope of constitutional right

The Appellate Division in Hussain Muhammad Ershad v Bangladesh41 held that the

national courts should not straightaway ignore the international obligations, which a

country undertakes. If the domestic laws are not clear enough or there is nothing therein

the national courts should draw upon the principles incorporated in the international

instruments. It was held in Bangladesh National Women Lawyers Association v

Bangladesh42 that the court can look into international conventions and covenants as

an aid to interpretation of the provisions of Part III, particularly to determine the rights

implicit in the rights like the right to life and the right to liberty, but not enumerated in

the Constitution..

1.6.2 There was a violation of Universal Declaration of Human Rights

The state of Braavos has ratified the Universal Declaration of Human Rights. Article

25 of the Universal Declaration of Human Rights affirms, ‘Everyone has the right to a

39 Paschim Banga Khet Mazdoor Samity v State of West Bengal (1996) 4 SCC 36.

40 Grover A, Misra M and Rangarajan L, “Right to Health” in Colleen M Flood and Aeyal Gross (eds),

The Right to Health at the Public/Private Divide: A Global Comparative Study (Cambridge University

Press 2014)

41 Hussain Muhammad Ershad v Bangladesh (2001) 21 BLD (AD).

42 Bangladesh National Women Lawyers Association v Bangladesh (2009) 14 BLC 694.

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standard of living adequate for the health of himself and of his family, including food,

clothing, housing and medical care and necessary social services’.43 The refusal of

medical care has constated a violation of this Article.

1.6.3 There was a violation of International Covenant on Economic, Social and

Cultural Rights

The state of Braavos has ratified the International Covenant on Economic, Social and

Cultural Rights. It provides the most comprehensive Article on the right to health in

international human rights law. In accordance with Article 12.1 of the Covenant, States

parties recognize ‘the right of everyone to the enjoyment of the highest attainable

standard of physical and mental health’, while Article 12.2 enumerates, by way of

illustration, a number of steps to be taken by the States parties to achieve the full

realization of this right.44

General Comment No. 14 issued by the United Nations Committee on Economic,

Social and Cultural Rights in 2000 lists the availability and accessibility of public

health-care facilities as two essential elements for a state to ensure right to health of its

citizens.45

1.7 Medica is also liable for the violation fundamental rights

1.7.1 Article 102(1) does not differentiate between public and private body

Article 102(1) of the constitution says ‘The High Court Division on the application of

any person aggrieved, may give such directions or orders to any person or authority’.

Here the word ‘any person or authority’ stretches to the private body. This interpretation

has been approved by the decision of the Supreme Court. Recently, the HCD in Liberty

Fashion Wears Limited v Bangladesh Accord Foundation46 held that ‘the language of

Article 102(1) however clearly states that a person must be aggrieved by the action or

order of "any person" including a person acting in connection with the affairs of the

43 Universal Declaration of Human Rights, art 25.

44 The International Covenant on Economic, Social and Cultural Rights, art 12.

45 UN Committee on Economic, Social and Cultural Rights, ‘General Comment No. 14’ on ‘The right

to the highest attainable standard of health (art 12)’ (2000) UN Doc HRI/GEN/Rev7.

46 Liberty Fashion Wears Limited v Bangladesh Accord Foundation (2017) 69 DLR 519.

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Republic. Thus, it is not necessary for the impugned act or order to be done or made by

a public functionary or statutory body or local authority for Article 102(1) to be

attracted. When fundamental rights of a person are infringed the remedy under Article

102(1) is available to the aggrieved person irrespective of whether he has been

aggrieved due to the action of a person who is in the service of the Republic, local

authority, statutory body or even in a private capacity’.

1.7.2 Article 102(2) can be effective against private act done under public

domain

Any act done in the public domain is subject to judicial review of the court. This view

has been clearly expressed by the HCD in Abdul Hakim vs Bangladesh,47 where court

opined that ‘public activity has blurred the traditionally held view that a writ in

certiorari, in particular, under Article 102(2) can only validly be addressed to public

functionaries.’ The Court resolved the question of jurisdiction by employing a liberal

interpretation to the term ‘a person performing any functions in connection with the

affairs of the Republic’ in Article 102(2). It held that a body does not necessarily have

to have its powers derived from statute to be amenable to judicial review under Article

102(2). It will suffice if the functions of that body are “in connection with the affairs”

of the State.48

1.7.3 The latest test of judicial reviewability of any act is the Datafin test

In the famous British case R (Datafin plc) v Panel on Take-overs and Mergers,49 the

test of judicial reviewability has been supplemented by the ‘nature of the power’ in

addition to the ‘sources of power’. Lloyd LJ in that case held that that ‘in between these

extremes there is an area in which it is helpful to look not just at the source of the power

but at the nature of the power. If the body in question is exercising public law functions,

or if the exercise of its functions has public law consequences then that may be

sufficient to bring the body within the reach of judicial review. It may be said that to

47 Abdul Hakim v Government of Bangladesh (2014) 34 BLD 129 [13].

48 Dr. Ridwanul Hoque and Emraan Azad, ‘Judicial Review of State Contracts: Piercing the Narrow

Divide between ‘Pure and Simple’ and ‘Statutory or Sovereign’ Contracts’ (2017) 28 DULJ 35, 40.

49 R (Datafin plc) v Panel on Take-overs and Mergers [1987] QB 815.

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refer to 'public law' in this context is to beg the question. But I do not think it does. The

essential distinction, which runs through all the cases to which we were referred, is

between a domestic or private tribunal on the one hand and a body of persons who are

under some public duty on the other’.

1.7.4 The private hospitals work as the alter ego of the government

The State is directly responsible for the action of private institutions when it outsources

its medical services, and that furthermore, the State always maintains the duty to

regulate and monitor private health-care institutions.

Article 102(2) permits of any function "in connection with the affairs of the Republic"

which the State itself may not perform but necessarily other bodies, even private non-

statutory bodies, may in substitution of the State or government perform, thereby,

significantly complementing and supplementing the otherwise essential responsibilities

of the Republic to its citizenry.

The court in AF Shahab Uddin Ahmed vs National Shooting Federation, Bangladesh

held liable a shooting federation and observed that irrespective of whether this body is

a statutory quango or mandarin or not, it, in our introspection is certainly performing

jobs in "connection with the affairs of the Republic, by extending the right to recreation

and leisure, as enunciated by Article 15(C), and in doing so it is, in truth, acting as an

alter ego of the government.50

If Medica did not exist, then the government would have to come forward to meet its

obligation. Therefore, private hospitals like Medica works as the alter ego of the

government.

2 The declaration of a national emergency was in violation of the Constitution

and 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

50 AF Shahab Uddin Ahmed v National Shooting Federation, Bangladesh LEX/BDHC/0186/2010

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2.1 The Emergency Declaration created a procedural vacuum in the

constitutional framework of the State of Braavos.

During the outbreak of Canine-19, the relatives of the citizens who did not receive any

medical treatment launched attacks upon the hospitals out of aggression. When the hike

of attacking hospitals and back to back clashes with the law enforcement agencies led

to lawlessness, the President issued a Proclamation of Emergency on 28 March 2020

on the ground of internal security and also declared that the freedom of movement and

freedom of assembly shall stand suspended.51

Article 141A and 141B of the Constitution of Braavos state that if the President is

convinced that a severe emergency exists in which the security or economic life of the

State, or any part thereof, is threatened by war or external aggression or internal

disturbance52, he may issue a Proclamation of Emergency.53 That proclamation shall

require for its validity the prior countersignature of the Prime Minister and approval of

the Parliament. It is known to us all that fundamental rights guaranteed in the

Constitution are not alienable. This closing of all courts without suspension of

enforcement of fundamental rights during the pandemic is inconsistent with the spirit

of the Supreme Court’s decision54 where it is held that, "Judges are bound by their oath

to uphold the constitution including fundamental rights of the people guaranteed

therein."55 Moreover, it was mentioned regarding Bangladesh that, the absence of a

precise definition of the term “internal disturbance” allowed the ruling governments of

succeeding generations to abuse this leeway in tackling situations which could have

51 Moot Compromis para 5.

52 Owen Hood Phillips and Paul Jackson, O. Hood Phillips’ Constitutional and Administrative Law (4th

impr, 7th edn, Sweet & Maxwell 1992) 317

53 ‘Emergency Provisions in Bangladesh: A Critical Analysis’ (The Lawyers & Jurists)

<www.lawyersnjurists.com/article/emergency-provisions-bangladesh-critical-analysis/> accessed 09

August 2020.

54 Tayeeb vs Bangladesh, (2015) 67 DLR (AD) 57.

55 M Qaium, ‘Closure of Supreme Court: Fundamental Rights Suspended during Pandemic?’ (The

Independent Bangladesh Online Edition) <http://m.theindependentbd.com/post/244799> accessed on 10

August, 2020.

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been easily dealt with by the legislative model.56 Even in this case of Braavos, the same

scenario is evident. Thus, it is responsible for creating a procedural vacuum in the

constitutional framework of the State of Braavos.

2.2 The state of emergency was declared without any prior planning which

ultimately violated the fundamental rights of the citizens

Furthermore, the responsibility of the Parliament and the executive organ of any state

are not to let any emergency situation be declared without any proper implementation

of planning and without violating the rights of the citizens. However, here it has not

only failed to ensure such requirement, but also violated the fundamental rights of the

citizens. The Canine-19 was notified as a communicable disease according to the

Ministry of Health notification under the Communicable Diseases (Prevention, Control,

and Eradication) Act of 2018. But it was not declared to be a disaster under the Disaster

Management Act of 2012.57 The Health Directorate issued another statutory order with

a few instructions like maintaining social distance, curfew and punishment of not

abiding by the rules under the same Act of 2018, whereas the authority did not feel the

need to place any limitation upon the powers within the Act.

2.3 The proclamation of emergency is violative of the International Covenant

on Civil and Political Rights

As stated in the covenant, a State party must comply with “two fundamental conditions”

before invoking article 4(1) of the Covenant, namely (1) “the situation must amount to

a public emergency which threatens the life of the nation” and (2) “the State party must

56 Md Azhar Uddin Bhuiyan, ‘Bangladesh’s constitutionally pragmatic response to COVID-19’, (Oxford

Political Review, (5 June 2020) <http://oxfordpoliticalreview.com/2020/06/05/bangladeshs-constit

utionally-pragmatic-response-to-covid-19/> accessed 9 August 2020.

57 Act of Disaster Management, 2012.

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have officially proclaimed a state of emergency”. 58

With regard to the condition of exceptional threat, it is evident that “not every

disturbance or catastrophe qualifies as a public emergency which threatens the life of

the nation” within the meaning of article 4(1).59

In this regard, the Committee states that:

“During armed conflict, whether international or non-international, rules of

international humanitarian law become applicable and help, in addition to the

provisions in article 4 and article 5, paragraph 1, of the Covenant, to prevent the abuse

of a State’s emergency powers. The Covenant requires that even during an armed

conflict measures derogating from the Covenant are allowed only if and to the extent

that the situation constitutes a threat to the life of the nation. If States parties consider

invoking article 4 in other situations than an armed conflict, they should carefully

consider the justification why such a measure is necessary and legitimate in the

circumstances.”60

The Committee here makes it clear that, irrespective of whether Article 4(1) is invoked

in an armed conflict or some other kind of crisis, the situation must be so serious as to

constitute “a threat to the life of the nation”. Thus, here in Braavos neither any such

grave situation of armed conflict or crisis arose for which the life of the nation would

have been threatened. So, it is evident that this declaration of state of emergency was

completely violative of the provisions of ICCPR.

2.4 The emergency state so declared reflects the mala fide intention and

ulterior motive of the State which is to curtail the rights of citizens to seek

remedy and judicial recourse

Furthermore, as it is derived from Article 141A and 141B that the President must be

58 UN doc. GAOR, A/56/40 (vol. I), p. 202, para. 2 59 UN doc. GAOR, A/56/40 (vol. I), p. 202, para. 3

60 Ibid, loc.cit

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convinced or satisfied which plays a significant role for the declaration of an emergency

situation. But the contention arises when this turns out to be questionable. The Court

has also the jurisdiction to decide whether the purported exercise of the discretion was

nevertheless ultra vires either because it was done in bad faith or as a result of

misconstruing the provision of the Act by which the discretion was conferred upon

him.61 So undoubtedly, the satisfaction of the President is final and conclusive but this

immunity from an attack cannot apply where the challenge is not that the satisfaction

is improper or unjustified rather that there is no satisfaction at all.62 In this regard, the

existence of the satisfaction is challenged.63 Although the declaration of the national

emergency was done on the ground of internal security, the mala fide intention and

ulterior motive of the State ensured that the citizens are not able to seek remedy and

judicial recourse. Now it clearly implies that the declaration was emergency, without

the appropriate implementation of prior planning was not done in good faith entirely.

2.5 The enforcement of fundamental rights of the Constitution of the State of

Braavos were curtailed due to the declaration of a national emergency

Article 141A and 141B of the Constitution of Braavos state that if the President is

convinced that a severe emergency exists in which the security or economic life of the

State, or any part thereof, is threatened by war or external aggression or internal

disturbance64 , he may issue a Proclamation of Emergency. Then such proclamation

suspends the fundamental rights65 mentioned in Articles 36, 37, 38, 39, 40, and 42.

Section 141A cannot justify an inference that the Legislature intended that prosecutions

61 The Cheng Poh alias Char Mer v The Public Prosecutor of Malaysia (1980) AC 458.

62 Minerva Mills v Union of India AIR (1980) SC 1789.

63 State of Rajasthan V Union of India, (1977) 8 AIR SC 1361.

64 Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta (eds), The Oxford Handbook of the Indian

Constitution (Oxford University Press 2016) 261.

65 Sri Kripa Shindu Hazra v The State and others (1977) 6 CLC (HCD)

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by private individuals should not be allowed in its actual term. 66 However, the

proclamation of emergency is not operative in the case of enforcement of any other

fundamental rights mentioned in Part III of the Constitution of Braavos unless declared

by the President in the declaration itself or if it is declared that the right to move before

any court for the enforcement of such of the rights conferred by part III of the

Constitution shall remain suspended under Article 141C of the Constitution.

Such situation arised in the State of Braavos since the relatives of those who did not

receive any medical treatment launched attacks upon the hospitals out of aggression.

When the hike of attacking hospitals and back to back clashes with the law enforcement

agencies led to lawlessness, the President issued a Proclamation of Emergency on 28

March 2020 on the ground of internal security and also declared that the freedom of

movement and freedom of assembly shall stand suspended.67 Furthermore, due to the

global outbreak of Canine- 19, the Supreme Court authorities on 29 March 2020 had

issued a notification declaring closure for all courts in Braavos till 2 April. Later, the

holiday was extended for the fifth time until 11 May 2020 which left the citizens with

no remedy for any violation of right.68 After that, on April 25 2020, the Supreme Court

announced that it would reopen in a limited capacity keeping in mind social distancing

policies. In addition to this step, the Supreme Court through its ‘Practice Directions’

announced a new initiative to allow for certain urgent matters to be heard via the Online

Forum such as ‘My Court’.69

2.6 The spirit of right to equality of law and equal protection of law were

violated resulting in severe disparity among citizens

Although all citizens are equal before law and are entitled to equal protection of law in

accordance with Article 27 of the Constitution of Braavos, in consequence of such

66 Delwar Ali Khan & another Vs Sajedul Haque (1986)15 CLC (AD)



69 Moot Comporimis, para 9.

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declaration, the citizens of the state could not avail their right to protection of the law

as the courts remain closed without suspension of fundamental rights under Article

141C. Such violation of the right to access to justice does not come under the purview

of suspension for the proclamation of emergency.70 Here, the declaration of emergency

not only suspended fundamental and other civil rights of the people but it is also a fatal

system error for democracy of the state where participation of the people in decision

making is absent.71

After the courts reopened on a limited scale, there was a disparity as everyone did not

have equal access to digital platforms and neither did they have enough technological

knowledge.

2.7 The closure of all courts without any alternative remedy resulted in

violation of fundamental rights including those referred in Article 27, 31,

35(3), 44 and 102 of the Constitution

Also, the right to speedy and public trial under Article 35(3) was also hindered due to

the decision of closing all the courts. Any accused person who has been denied this

right of speedy trial is entitled to approach the Supreme Court to enforce his right to a

speedy trial, and the Supreme Court, in the discharge of its constitutional obligation,

has the power to give the necessary direction to the Government for securing this

right.72 The closure of all courts with no alternative remedy has violated the rights of

the citizens of Braavos under Article 44 and 102 of the Constitution as well. Since the

court has not been suspended by the proclamation of national emergency, it questions

the validity of the national emergency declaration and thus it was indeed in violation of

the fundamental rights of the Constitution of the State of Braavos.

70 Latifur Rahman, The Constitution of the People’s Republic of Bangladesh: With Comments & Case-

Laws (Mullick Brothers 2004) 235.

71 Idrisur Rahman v Bangladesh (2008) 37 CLC (HCD) 3993.

72 Kadra Pahadiya v State of Bihar (1997) AIR SC 3750.

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PRAYER

In light of the legal precedents and principles cited; and in light of the provisions of the

Constitution applied and arguments advanced, the Petitioner most humbly prays that the

Supreme Court:

1. Adjudge and declare that the non-admission of Sersai violated her fundamental right

and both the state and Medica are liable for the violation; and

2. Adjudge and declare that he declaration of national emergency was not violative of

the constitution and the closing of all Courts without suspension of enforcement of

fundamental rights during emergencies under Article 141C did not violate the right to

enforce fundamental rights under the Constitution.

AND/OR

Pass any other order that it deems fit in the interest of Justice, Equity and Good

Conscience.

AND FOR THIS ACT OF KINDNESS, THE PETITIONER AS IN DUTY-BOUND,

SHALL HUMBLY FOREVER PRAY.

Sd/-

(Counsels for Petitioner)

before the honourable high court division of the …

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