BEFORE THE HONOURABLE SUPREME COURT OF BRAAVOS

T8R

BEFORE THE HONOURABLE

SUPREME COURT OF BRAAVOS

EQUALITY FOR ALL

(PETITIONER)

v.

STATE OF BRAAVOS

(RESPONDENT)

2020

MEMORANDUM FOR RESPONDENT

1st Prof. Shah Alam Constitutional Law Virtual Moot Court Competition 2020

Memorandum for the Respondent 2

TABLE OF CONTENTS

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

Table of Abbreviations…………………………………………………………………………....4

Index of Authorities……………………………………………………………………………….5

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

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

Issues Raised……………………………………………………………………………………..13

Summary of Arguments………………………………………………………………………….14

Arguments Advanced…………………………………………………………………………….15

1. NON-ADMISSION OF SERSAI VIOLATED SERSAI’S FUNDAMENTAL RIGHT(S),

AND ONLY MEDICA CAN BE HELD LIABLE FOR THE VIOLATION OF

FUNDAMENTAL RIGHT BUT NOT STATE……………………………………………..15

1.1 Recognition of Rights by the State of Braavos……………………………………..15

1.1.1 Recognition of Right to Health………………………………………………15

1.1.2 Recognition of the Judgments Given in Landmark Cases…………………...17

1.2 Non-Violation of International Human Rights Laws………………………………18

1.2.1 The Notion of Public Health Emergency in International Human Rights

Law…………………………………………………………………………..18

1.2.2 Individual Responsibility and State Responsibility………………………...20

1.2.3 WHO Constitution…………………………………………………………...21

1.3 Steps Taken by the State……………………………………………………………21

1.3.1 Steps Taken to Combat Canine-19………………………………………….21

1.3.2 The Gunnison Strategy………………………………………………………23

1.4 Right to Life during National Emergency…………………………………………25

1.5 Non-Liability of DMCH…………………………………………………………...26

1.6 Responsibility of Medica…………………………………………………………..27

1.7 Unjustified PIL Writ-Petition……………………………………………………...28



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……………………………..30

2.1 The emergency declaration was made according to the provisions of the

Constitution……………………………………………………………………………..30

2.1.1 Existing disturbance being a threat to the internal security………..………….30

2.1.2 Emergency declaration depends on the satisfaction of the President…………31

2.2 That Closing of Courts did not violate the fundamental rights………………………..32

2.2.1 Suspension of fundamental rights during emergency…………………………33

2.2.2 Enforcement of the fundamental rights were ipso facto suspended…….…….34

Prayer…………………………………………………………………………………………….35



TABLE OF ABBREVIATIONS

¶ Para

¶¶ Paras

AC Appeal Cases

AD Appellate Division

AIR All India Report

Art. Article

BLD Bangladesh Legal Decisions

Cal Calcutta

CEDAW Convention on the Elimination of all Forms of

Discrimination Against Women

COVID Coronavirus Disease

DLR Dhaka Law Report

DMCH Dorne Medical College Hospital

ECHR European Convention on Human Rights

Ed. Edition

ETV Ekushey Television

FPSP Fundamental Principles of State Policy

HCD High Court Division

HRC Human Rights Council

ICCPR International Covenant on Civil and Political Rights

ICESCR International Covenant on Economic, Social and Cultural

Rights

Ltd. Limited

MDG Millennium Development Goals

p. Page No.

PIL Public Interest Litigation

PLD All Pakistan Legal Decisions

Raj Rajasthan

SC Supreme Court

SCC Supreme Court Cases

Sec. Section

u/a Under Article

UDHR Universal Declaration of Human Rights

UN United Nations

UNDP United Nations Development Programme

UNHCR United Nations High Commissioner for Refugees

UNICEF United Nations Children's Fund

USSR Union of Soviet Socialist Republics

v. Versus

Vol. Volume

WHO World Health Organization



INDEX OF AUTHORITIES

Cases Referred

1. Alyne da Silva Pimentel vs. Brazil, UN Doc CEDAW/C/49/D/17/2008……………………17

2. Begum Khaleda Zia Vs. Anti-Corruption Commission and Others, 2015, 44 CLC (HCD)...29

3. Bijayananda V President of India AIR (1974) Ori 52………………………………………32

4. Idrisur Rahman (Md) Vs Bangladesh, 2008, 37 CLC (HCD) [3993]………………………..25

5. Kudrat-E-Elahi Panir vs. Bangladesh, (1992) 44 DLR (AD) 319…………………………...17

6. M Saleem Ullah Advocate Vs. Bangladesh, 2004, 33 CLC (HCD) [7029]…………………34

7. Md Ataur Rahman & others Vs. B M Muhibur Rahman & others, 2008, 37 CLC (AD)

[2979]………………………………………………………………………………………...34

8. Parmanand Kataria v Union of India (1989) 4 SCC 286; AIR 1989 SC 2039)……………..16

9. Paschim Banga Khet Mazdoor Samity v State of West Bengal [AIR 1996 SC 2426 at 2429

para 9]………………………………………………………………………………………..16

10. Professor Nurul Islam v Bangladesh (2000) 52 DLR (HCD) 413…………………………..15

11. SR Bommai And Others vs. Union Of India And Others (AIR 1994 SC 1918)……………32

12. Sri Kripa Shindu Hazra on behalf of detenu Kalipada Hazra Vs. The State and others, 1977, 6

CLC (HCD) [9023]…………………………………………………………………………..19

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

14. State vs. Dosso (1959) 11 DLR (SC) 1; PLD 1958 (SC) 533……………………………….17

15. Tayeeb vs Bangladesh reported in 67 DLR AD 57…………………………………………19

Books Referred

1. Choudhry S, Khosla M and Mehta PB (eds), The Oxford Handbook of the Indian

Constitution (Oxford University Press 2016)………………………………………………..20

2. Ginsburg T and Dixon R (eds), Comparative Constitutional Law (Edward Elgar 2011)…...25

3. Haeck Y, Human Rights and Civil Liberties in the 21st Century (Springer Berlin Heidelberg

2013)…………………………………………………………………………………………16



4. Halim MdA, Constitution, Constitutional Law, and Politics: Bangladesh Perspective : A

Comparative Study of Problems of Constitutionalism in Bangladesh (10th edn, CCB

Foundation 2017)…………………………………………………………………………….31

5. Hirschl R, ‘“Negative” Rights vs. “Positive” Entitlements: A Comparative Study of Judicial

Interpretations of Rights in an Emerging Neo-Liberal Economic Order’ (2000) Vol. 22, No. 4

The Johns Hopkins University Press 1060…………………………………………………..16

6. Ides A, Grossi S and May CN, Examples & Explanations for Constitutional Law Individual

Rights. (9999)………………………………………………………………………………...16

7. Islam M, Constitutional Law of Bangladesh (2nd ed, Mullick Brothers 2002)……………..25

8. Phillips OH and Jackson P, O. Hood Phillips’ Constitutional and Administrative Law (7. ed.,

4. impr, Sweet & Maxwell 1992)……………………………………………………………31

9. Rahman L, The Constitution of the People’s Republic of Bangladesh: With Comments &

Case-Laws (Mullick Brothers 2004)…………………………………………………………19

10. Rosenfeld M and Sajó A (eds), The Oxford Handbook of Comparative Constitutional Law

(1st ed, Oxford University Press 2012)………………………………………………………18

Legislations Referred

1. Communicable Diseases (Prevention, Control, and Eradication) Act 2018…………………22

2. The Constitution of Braavos…………………………………………………………………15

3. The Constitution of the People’s Republic of Bangladesh…………………………………..17

Treaties and Conventions Referred

1. African Commission on Human and Peoples’ Rights, 1987………………………………...24

2. Convention on Elimination of All Sorts of Discrimination Against Women, 1979…………19

3. International Covenant on Civil and Political Rights 1976………………………………….16

4. International Covenant on Economic, Social and Cultural Rights 1976…………………….16

5. Universal Declaration of Human Rights (UDHR) 1948……………………………………..16



Essays and Articles Referred

1. “A Quarantine against All the World” - The Town That Dodged the 1918 Spanish Flu

Pandemic ⋆ The Savage Nation’ (The Savage Nation, 14 March 2020)

<http://michaelsavage.com/a-quarantine-against-all-the-world-the-town-that-dodged-the-

1918-spanish-flu-pandemic/> accessed 5 August 2020……………………………………...24

2. ‘Bangladesh Constituent Assembly Debate-1972’

<https://www.parliament.gov.bd/index.php/publication-2/archive-materials/bangladesh-

constituent-assembly-debate-1972> accessed 5 August 2020……………………………….17

3. ‘Cold War | Causes, Facts, & Summary’ (Encyclopedia Britannica)

<https://www.britannica.com/event/Cold-War> accessed 24 July 2020…………………….17

4. ‘Denial of Treatment: Hospitals Defy Govt Warnings’ (The Daily Star, 24 June 2020)

<https://www.thedailystar.net/frontpage/news/denial-treatment-hospitals-defy-govt-

warnings-1919517> accessed 5 August 2020………………………………………………..25

5. ‘Gunnison, Colorado: The Town That Dodged the 1918 Spanish Flu Pandemic | Coronavirus

Outbreak | The Guardian’ <https://amp.theguardian.com/world/2020/mar/01/gunnison-

colorado-the-town-that-dodged-the-1918-spanish-flu-

pandemic?fbclid=IwAR1Mx9LoIW074J5hlqZfbdyDfwVLEod7O6l8W44A-

FbLB8DqoUf3g-99U04> accessed 5 August 2020………………………………………….23

6. Comparative Study of Problems of Constitutionalism in Bangladesh (10th edn, CCB

Foundation 2017)…………………………………………………………………………….31

7. Interpretations of Rights in an Emerging Neo-Liberal Economic Order’ (2000) Vol. 22, No. 4

The Johns Hopkins University Press 1060…………………………………………………..16

8. ‘Human Rights in the Administration of Justice: A Manual on Human Rights for Judges,

Prosecutors and Lawyers’ Chapter 16

https://www.ohchr.org/Documents/Publications/training9chapter16en.pdf............................19

9. ‘International Health Regulations’ <https://www.who.int/westernpacific/health-

topics/international-health-regulations> accessed 5 August 2020…………………………...18

10. Menthe D, ‘Jurisdiction in Cyberspace: A Theory of International Spaces’ (1998) 4 Michigan

Telecommunications & Technology Law Review 69……………………………………….23

11. Osman FA, ‘Health Policy, Programmes and System in Bangladesh: Achievements and

Challenges’ (2008) 15 South Asian Survey 263……………………………………………..17

http://michaelsavage.com/a-quarantine-against-all-the-world-the-town-that-dodged-the-1918-spanish-flu-pandemic/

http://michaelsavage.com/a-quarantine-against-all-the-world-the-town-that-dodged-the-1918-spanish-flu-pandemic/

https://www.parliament.gov.bd/index.php/publication-2/archive-materials/bangladesh-constituent-assembly-debate-1972

https://www.parliament.gov.bd/index.php/publication-2/archive-materials/bangladesh-constituent-assembly-debate-1972

https://www.britannica.com/event/Cold-War

https://www.thedailystar.net/frontpage/news/denial-treatment-hospitals-defy-govt-warnings-1919517

https://www.thedailystar.net/frontpage/news/denial-treatment-hospitals-defy-govt-warnings-1919517

https://amp.theguardian.com/world/2020/mar/01/gunnison-colorado-the-town-that-dodged-the-1918-spanish-flu-pandemic?fbclid=IwAR1Mx9LoIW074J5hlqZfbdyDfwVLEod7O6l8W44A-FbLB8DqoUf3g-99U04




https://www.ohchr.org/Documents/Publications/training9chapter16en.pdf

https://www.who.int/westernpacific/health-topics/international-health-regulations

https://www.who.int/westernpacific/health-topics/international-health-regulations



12. Otorkpa D, ‘World Health Organization(WHO) Definition Of Health’ (Public Health, 1

August 2019) <https://www.publichealth.com.ng/world-health-organizationwho-definition-

of-health/> accessed 5 August 2020…………………………………………………………21

13. Sachs JD, ‘From Millennium Development Goals to Sustainable Development Goals’ (2012)

379 The Lancet 2206………………………………………………………………………...17

14. Sarwar TB, ‘Judicial Enforcement of Socio-Economic Rights in Bangladesh: Lessons from

India and South Africa’ (2014) VIII No. 2…………………………………………………..18

15. ‘The Elements of State Responsibility’ <https://www.lawteacher.net/free-law-

essays/international-law/the-elements-of-state-responsibility-international-law-essay.php>

accessed 5 August 2020……………………………………………………………………...20

16. ‘The Prevention of Corruption Act, 1947 | 5. Criminal Misconduct’

<http://bdlaws.minlaw.gov.bd/act-217/section-3312.html> accessed 5 August 2020………29

17. UNICEF, World Health Organization 3and International Conference on Primary Health Care,

Declaration of Alma Ata: International Conference on Primary Health Care, Alma Ata,

USSR, 6-12 September 1978. (World Health Organization 1978)…………………………...17

18. ‘WHO | The Ottawa Charter for Health Promotion’ (WHO)

<http://www.who.int/healthpromotion/conferences/previous/ottawa/en/> accessed 24 July

2020…………………………………………………………………………………………..17

https://www.publichealth.com.ng/world-health-organizationwho-definition-of-health/

https://www.publichealth.com.ng/world-health-organizationwho-definition-of-health/

https://www.lawteacher.net/free-law-essays/international-law/the-elements-of-state-responsibility-international-law-essay.php

https://www.lawteacher.net/free-law-essays/international-law/the-elements-of-state-responsibility-international-law-essay.php

http://bdlaws.minlaw.gov.bd/act-217/section-3312.html

http://www.who.int/healthpromotion/conferences/previous/ottawa/en/



STATEMENT OF JURISDICTION

The petitioner has filed this writ petition under the articles 44(1) and 102 of the Constitution of

Braavos for the violation of Sersai’s fundamental right(s) enumerated in part III of the

Constitution. The respondent maintains that no violation of fundamental right(s) by the State has

taken place. Violation of Sersai’s fundamental right(s) has taken place by the actions of the only

Medica individually. Therefore, this honourable Court does not need to entertain its jurisdiction

in this writ petition.



STATEMENT OF FACTS

Background

State of Braavos is a densely populated country which got its independence in 1972 and formed a

liberal democratic parliamentary republic structure with socialist influence. Modern Braavos

gained its independence from Pentos in the year 1971 after a bloody nine months liberation war.

Braavos formed a democratic parliamentary republic form of Government with socialist

influence in 1972 after its independence. Historically it had an agro-based labour force, but as a

result of rapid urbanization and industrialization, most people in Braavos are now capital centric

with an alarming number 200 people moving each day into its capital Dorne. Among the total

population of 10 Crore people, Dorne has 16.5 million people living in it with only an area of

400 km.

Health Care Services

Braavos is still lagging in its Public Health Care Services. However, health care is offered in

Braavos through hospitals and privately-run clinics and health indicators such as life expectancy,

coverage of immunization has improved notably in Braavos along with the dropping of infant

mortality, maternal mortality, and fertility rates, According to a report published by the ‘State of

Health in Braavos,’ 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.

Braavos has only one Nurse per three physicians opposite to the WHO’s recommendation.

However, the scenario should have been the opposite.

The Canine-19 Catastrophe

Unknown pneumonia was reported to the WHO (World Health Organization) detected in

Westeros, Cornfield. The virus was later named candida Virus-Canine 19 by WHO, which first

hit the surface of Braavos on 8 March 2020, and reportedly three positive Canine 19 cases were



confirmed. 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.

Medical Facilities in Lockdown

To counter the massive outbreak of the Canine-19 catastrophe, the Govt, of Braavos declared a

ten days lockdown for both private and public sectors, except emergency services including

hospitals, medical diagnostic centres with ensuring social distancing and aid. Armed forces were

deployed to help the Civil authorities in Braavos for ensuring social distancing. However, many

hospitals and clinics still denied providing treatments to regular patients who did not have

Canine-19 for which many lives were at stake, even the elderly.

Proclamation of Emergency

On the verge of such a medical emergency in the state the law and order was in a haphazard

situation. The persons who did not receive medical attention for themselves or their loved ones

went violent, and the entire situation of Braavos became haphazard. To counter the ongoing

lawless situation, the President of Braavos issued a Proclamation of Emergency on the ground of

Internal Security along with a declaration of suspension of Freedom of Movement and Freedom

of Assembly, two guaranteed fundamental constitutional rights of the citizens.

Closure of Courts

On the verge of such a medical emergency in the State, law, and order was in a chaotic situation.

Attacks on the hospitals due to their unwillingness to treat patients because of Canine-19,

burglary in shops and stores, mobbing on highways made the situation even worse, and on

account of this for internal security, the President of Braavos proclaimed national emergency on

28 March 2020. The Supreme Court of Braavos also issued a notification on 29 March 2020

declaring closure for all courts, which was extended till 11 May 2020.



Death of Sesai’s Infant Child

Both public and private health care facilities in Braavos were unlawfully and unjustifiably

turning down patients for fear of Canine-19. Lack of Protocol for patient management was on the

horizon. A pregnant lady named Sersai suffered an irreparable loss as her infant child was

declared dead as a result of turning down from being admitted to the hospital for proper medical

attention and delivery by Private Hospital Medica and Public Hospital DMCH (Dorne Medical

College 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. However, due to the extended Proclamation of Emergency, along with the

Courts being Shut down for Canine-19 Outbreak, no case could be filed.

Online Court

Under an Ordinance named “Usage of Information and Communication Technology in Court,

2020 (Ordinance No. I of 2020)” approved by the President of Braavos under Article 93(1) of the

Constitution, the Supreme Court announced that the Court would continue its proceeding online

but only for urgent matters. This whole thing was questioned by “Equality for All” along with

the declaration of Proclamation of Emergency on the verge that the entire online court process is

discriminating and 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.



ISSUES RAISED

The State of Braavos respectfully requests the Court to adjudge:

I.

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, and

II.

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.



SUMMARY OF ARGUMENTS

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.

Non-admission of Sersai has violated Sersai’s Right to Health, which is an integral part of

Fundamental Right to Life as recognized by the State and guaranteed constitutionally and

enforceable judicially. However, the State has not done anything to violate Sersa’s Fundamental

Right(s). It was only Medica which violated Sersai’s Fundamental Right to Life guaranteed

under Article 32 of the Constitution of Braavos. The present PIL Writ-petition in the High Court

Division of the Supreme Court of Braavos is not maintainable against the State because the State

has not violated any 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.

During the global Canine-19 outbreak, the President of Braavos declared a proclamation of

emergency in the state of Braavos, and the Supreme Court authority also declared that all the

courts should remain closed to prevent the spread of the virus. The emergency declaration was

not in violation with the provisions of the Constitution as it was declared based on the

satisfaction of the President which is his constitutional right under Article 141A, 141B and also

there was the existence of ongoing internal disturbance which posed a significant threat to the

internal security of the state. Again the closure of all courts did not violate the fundamental rights

as they were already suspended due to the emergency declaration and also subject to reasonable

restriction. Also, the right to enforcement of fundamental rights was ipso facto suspended under

article 141C of the Constitution.



ARGUMENTS ADVANCED

1. NON-ADMISSION OF SERSAI VIOLATED SERSAI’S FUNDAMENTAL RIGHT(S),

AND ONLY MEDICA CAN BE HELD LIABLE FOR THE VIOLATION OF

FUNDAMENTAL RIGHT BUT NOT STATE

1.1 Recognition of Rights by the State of Braavos

1.1.1 Recognition of Right to Health.

According to the Sub-Article 1 of Article 18 (Public Health and Morality) of Part II

(Fundamental Principles of State Policy) of the Constitution of Braavos, the State shall regard

the improvement of public health among its primary duties.1 The rights mentioned in Part II of

the Constitution of Braavos are parts of Fundamental Principles of State Policy, which has no

judicial enforceability in the Constitution. These rights are guiding principles of the State. They

are not part of Fundamental Rights under Part III of the Constitution, which are Judicially

enforceable. However, the State has given the recognition of Right to Health as an integral part

of Right to Life under Article 32 (Protection of Right to Life and Personal Liberty), which also

has judicial enforceability. Articles 31 and 32 of the Constitution do not only mean the protection

of life and limbs necessary for full enjoyment of life but also includes the protection of health

enshrined in Article 18(1).2

Though this is a point where other States could have taken advantage of it. In a case like Sersai’s

any other State on the verge of Fundamental Principles of State Policy which have no judicial

enforceability cannot be taken as a ground of filing a suit in a Court of Law, would have raised

the plea as a ground of its defence as non-recognition of the Right to Health as a Fundamental

Right guaranteed by the State in the Constitution with judicial enforceability. However, the State

of Braavos has given full recognition to the Right to Health as an integral part of the

Fundamental Right to Life, having judicial enforceability.

1 The Constitution of Braavos. 2 Professor Nurul Islam v Bangladesh (2000) 52 DLR (HCD) 413.



The rights in the FPSP of Part II of the Constitutions are Economic, Social, and Cultural Rights,

also known as Positive Rights mainly taken from the ICESCR3, 1966, which needs resources to

be recognized as Fundamental Rights guaranteed in and by the Constitution.4 Braavos after not

even 50 years of its independence along with a vast more population than its total or entire area

and lack of medical human resources and resources5 still recognizing Article 18(1) which speaks

of Public Health, as an integral part of Fundamental Right to Life under Article 32 of Part III

(having 18 out of 25 Fundamental Rights which are judicially enforceable from the UDHR6) of

its Constitution. Article 21 of the Indian Constitution also does the same as established by the

observations and judgments given in various cases. Article 21 of the Indian Constitution

guarantees protection of life and personal liberty to every citizen. The Supreme Court has held

that the right to live with human dignity, enshrined in Article 21, derives from the directive

principles of State policy and therefore includes the protection of health.

Further, the right to health is integral to the right to life, and the Government has a Constitutional

obligation to provide health facilities.7 A person, therefore, is entitled to appropriate procedures

before being deprived of life, liberty, or property.8 Failure of a government hospital to provide

medical treatment to a patient, timely results violation of the patient’s right to life.9 PIL writ

petitions have been filed under Article 21 of the Indian Constitution in response to violations of

the right to health for immediate medical aid to injured persons.10 The Fundamental Rights

mentioned in Part III of the Constitution of Braavos are mainly Civil and Political Rights, also

known as Negative Rights taken from the ICCPR11, 1966.12

The Government of Braavos declared a 10-day shutdown effective from 26 March 2020 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 deployed from 26 March

3 International Covenant on Economic, Social and Cultural Rights 1976 (Article 12). 4 Yves Haeck, Human Rights and Civil Liberties in the 21st Century (Springer Berlin Heidelberg 2013). p. 76 5 Moot Proposition at ¶¶ 1,2 6 Universal Declaration of Human Rights (UDHR) 1948 (Article 25). 7 State of Punjab v Mohinder Singh Chawla (1997) 2 SCC 83. 8 Allan Ides, Simona Grossi and Christopher N May, Examples & Explanations for Constitutional Law Individual

Rights. (9999) p. 28 9 Paschim Banga Khet Mazdoor Samity v State of West Bengal [AIR 1996 SC 2426 at 2429 para 9]. 10 Parmanand Kataria v Union of India (1989) 4 SCC 286; AIR 1989 SC 2039). 11 International Covenant on Civil and Political Rights 1976. 12 Ran Hirschl, ‘“Negative” Rights vs. “Positive” Entitlements: A Comparative Study of Judicial Interpretations of

Rights in an Emerging Neo-Liberal Economic Order’ (2000) Vol. 22, No. 4 The Johns Hopkins University Press

1060.



onwards 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. It

proves that the State of Braavos cares for the health of its citizens and has given full priority on

their Rights to Health and proper medical attention. So, on this ground, the State of Braavos

cannot be held responsible for the violation of Sersai’s Fundamental Right(s), which has only

been violated by Medica.13

1.1.2 Recognition of the Judgments Given in Landmark Cases

The observations of the Supreme Court of Bangladesh in the following cases:

I. In the case of Kudrat-E-Elahi Panir vs. Bangladesh (1992), the High Court Division of

the Supreme Court of the People’s Republic of Bangladesh held that though fundamental

principles are not enforceable in the Court, a law which is directly contrary to any of them or

which negates such a principle may be declared void despite the provision in Article 8(2).14

Thus, it appears that the fundamental principles can be enforced to declare a law void on the

ground of direct inconsistency. However, Mustafa Kamal J observed in the Appellate Division of

the Supreme Court of the People’s Republic of Bangladesh; it is the law of the Constitution itself

that the Fundamental Principles of State Policies are not Laws but Principles.

Therefore, to equate Principles with Laws is to go against the law of the Constitution15 itself. So

other Laws cannot be made void on the ground of inconsistency with these Principles or

Directives. Thus, literal interpretation was taken up while considering the enforcement of the

Fundamental Principles of State Policy, and the rights-based approach seems to be absent.

Nonetheless, a remarkable point arises on behalf of the appellants, which is to bring the

13 ‘Cold War | Causes, Facts, & Summary’ (Encyclopedia Britannica) <https://www.britannica.com/event/Cold-

War> accessed 24 July 2020; ‘Bangladesh Constituent Assembly Debate-1972’

<https://www.parliament.gov.bd/index.php/publication-2/archive-materials/bangladesh-constituent-assembly-

debate-1972> accessed 5 August 2020; Ferdous Arfina Osman, ‘Health Policy, Programmes and System in

Bangladesh: Achievements and Challenges’ (2008) 15 South Asian Survey 263; UNICEF, World Health

Organization and International Conference on Primary Health Care, Declaration of Alma Ata: International

Conference on Primary Health Care, Alma Ata, USSR, 6-12 September 1978. (World Health Organization 1978);

‘WHO | The Ottawa Charter for Health Promotion’ (WHO)

<http://www.who.int/healthpromotion/conferences/previous/ottawa/en/> accessed 24 July 2020; State vs Dosso

(1959) 11 DLR (SC) 1; PLD 1958 (SC) 533 (Supreme Court of Pakistan); Alyne da Silva Pimentel vs Brazil, UN

Doc CEDAW/C/49/D/17/2008; Jeffrey D Sachs, ‘From Millennium Development Goals to Sustainable

Development Goals’ (2012) 379 The Lancet 2206. 14 Kudrat-E-Elahi Panir vs Bangladesh, (1992) 44 DLR (AD) 319. 15 The Constitution of the People’s Republic of Bangladesh.



Fundamental Principles of State Policy within the scope of Article 7(2) of the Constitution16 and

thus enforce them without violating Article 8(2) of the Constitution.17

II. Mohiuddin Farooque vs Bangladesh (2003), the Supreme Court of Bangladesh, stood for

socio-economic rights. Social and economic rights cannot be examined in isolation from other

forms of rights claims.18 In this case, the Court held that it is the Constitutional obligation of the

Government to ensure that the rights of the People under Article 18 and 32 of the Constitution

are implemented in its real spirit to protect the interest of the people.19

The State of Braavos not only acknowledges the observations given by the Supreme Court of

Bangladesh in the landmark as mentioned above cases but also has given practical applicability

to them in the light of its Constitution by giving judicial enforceability to Right to Health which

is originally a part of the Fundamental Principles of State Policy of Part II of the Constitution20

having no judicial enforceability, as an integral part of Right to Life which is a Part of

Fundamental Rights in Part III of the Constitution having judicial enforceability which proves

that the State of Braavos is much more concerned with the Life, Health, Medical Treatment and

Well-being of its Citizens than anything. Thus, the State did nothing which would have caused

the death of Sersai’s infant but had taken initiatives to minimize such incidents. Its Medica who

is responsible for the denial of providing treatment to Sersai.

1.2 Non-Violation of International Human Rights Laws

1.2.1 The Notion of Public Health Emergency in International Human Rights Law

Disaster management is a core function of public health law. National laws and emergency plans

must take into account International obligations for the management of public health

emergencies, including the International Health Regulation (2005).21 Following a determination

by WHO, a public health emergency of International advice or recommendation from an

16 ibid. 17 Tariq Bin Sarwar, ‘Judicial Enforcement of Socio- Economic Rights in Bangladesh: Lessons from India and South

Africa’ (2014) VIII No. 2. 18 Michel Rosenfeld and András Sajó (eds), The Oxford Handbook of Comparative Constitutional Law (1st ed,

Oxford University Press 2012). p. 1020 19 Sarwar (n 18). 20 The Constitution of Braavos. 21 ‘International Health Regulations’ <https://www.who.int/westernpacific/health-topics/international-health-

regulations> accessed 5 August 2020.



Emergency committee may include health measures for implementation by the country

experiencing the public health emergency.

Article 4(1) of the International Covenant on Civil and Political Rights (ICCPR), 1966 provides

that: “In time of public emergency which threatens the life of the nation and the existence of

which is officially proclaimed, the States Parties to the present Covenant may take measures

derogating from their obligations under the present Covenant to the extent strictly required by the

exigencies of the situation, provided that such measures are not inconsistent with their other

obligations22 under international law and do not involve discrimination solely on the ground of

race, color, sex, language, religion or social origin.”23

Braavos is a ratifying party and a bound member State of the ICCPR, 1966 and according to the

above Statement, Braavos has not breached its international obligations as the Proclamation of

Emergency declared by the President of the State of Braavos was done on the verge of a medical

emergency which created a lawless situation.24 Also, Article 32, which is Fundamental Right To

Life of which Right to Health is an integral part under the Constitution of Braavos having

Judicial Enforceability, was suspended neither by Article 141B25 of the Constitution nor by any

order of the President of the State.26 However, Article 36 and 37 which are Freedom of

Movement and Freedom of Assembly were suspended both automatically by the Article 141B of

the Constitution and by the President's specific declaration.27

Article 25 of the Universal Declaration on Human Rights 1948, which is not a binding legal

document but a customary international law established through State Practice and Opinio Juris

Sive Necessitatis (the belief that an action was carried out as a legal obligation) as an inviolable

universal human right. Besides, Article 12 of ICESCR, Article 6 of ICCPR, Article 5 and 12 of

CEDAW, 1979 talks about the protection of the right to health specifically for women and

children which has been violated by Medica but not by the State as it took all the possible

measures to combat Canine-19 and in the meantime to ensure and protect the Constitutionally

guaranteed Right to Life of the citizens even during a national emergency.

22 Tayeeb vs Bangladesh reported in 67 DLR AD 57. 23 ‘Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and

Lawyers’ Chapter 16 <https://www.ohchr.org/Documents/Publications/training9chapter16en.pdf>. 24 Moot Proposition at ¶ 5 25 Latifur Rahman, The Constitution of the People’s Republic of Bangladesh: With Comments & Case-Laws

(Mullick Brothers 2004). p. 235 26 Sri Kripa Shindu Hazra on behalf of detenu Kalipada Hazra Vs The State and others, 1977, 6 CLC (HCD) [9023]. 27 ibid



1.2.2 Individual Responsibility and State Responsibility

The law of State responsibility is the principles governing when and how a state is held

responsible for a breach of an Intentional obligation. According to the elements of State

responsibility, a State is not responsible for the acts of private individuals. State responsibility

arises from the actions of police officers, just as it can be from the actions of the highest officials

such as the head of a State.

However, in the case of Sersai, for the action of Medica which is a private hospital28 and violated

Sersai’s Fundamental Right to Life of which Right to Health (despite initially being a part of the

Fundamental Principles of State Policy) is an integral part as recognized by the State of Braavos

itself, the State will not be held liable as it had done everything to ensure the Right to Health for

the likes of Sersai even in this pandemic as well as in the period of the ongoing National

Emergency for internal security29 declared by the President of Braavos on the verge of Medical

Emergency which caused a lawless situation.30

The private medical Hospital Medica itself will be held liable for the action as it has worked

directly against the Constitution and also against the direct orders and instructions given by the

State of Braavos, and that was, no hospital should deny the treatment of any patient even with

fever.31 Instead, State responsibility may arise from acts or omissions of the legislatures, and

judicially, as here the intention of the Government was very clear and specific about the

protection of the Right to Health of its citizens32, the State will not be held responsible for the

violation of Sersai’s Fundamental Right(s).

If the actions of private individuals are done on the instructions given by the State or under its

effective direction, only then can the State be held liable.33 However, there was no such

instruction from the Government side of the State of Braavos, but the complete opposite34 and

the State has not breached any international obligation under international law. So, in short, the

28 Moot Proposition at ¶ 6 29 Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta (eds), The Oxford Handbook of the Indian Constitution

(Oxford University Press 2016). p.261 30 ibid at ¶¶ 4,5,7 31 ibid at ¶ 7 32 ibid at ¶¶ 4,5,7 33 ‘The Elements of State Responsibility’ <https://www.lawteacher.net/free-law-essays/international-law/the-

elements-of-State-responsibility-international-law-essay.php> accessed 5 August 2020. 34 Moot Proposition at ¶ 7



State of Braavos is not responsible for the Act of private individual (hospital authority) Medica

for the unconstitutional and illegal or unlawful violation of Sersai’s Fundamental Right(s).

1.2.3 WHO Constitution

Braavos is a member State of the World Health Organization. According to the Preamble of the

Constitution of the World Health Organization, the Governments have a responsibility for the

health of their peoples which can be fulfilled only by the provision of adequate health and social

measures35 the Government is trying their best to overcome the situation. However, Braavos is

still running a staggering shortage of over 60,000 doctors and also has a deficit of almost

140,000 nurses with only one Nurse per three physicians. In contrast, the ratio should have been

the other way around, which is three nurses for one physician, a scenario inverse of the World

Health Organization’s (WHO) recommendation (Fact 2), despite these the State took the

initiative that every hospital will be bound to admit any type of patient eve with fever.36 As

Medica did not follow that, it will be responsible for the violation of Sersai’s Fundamental

Human Rights.

1.3 Steps Taken by the State

1.3.1 Steps Taken to Combat Canine-19

The entire world, including the State of Braavos, has been currently dealing with the global

pandemic known as Canine-19 caused by the Candida virus, which is catastrophic and hazardous

pneumonia. Many people around the world until now has been infected with this deadly disease.

Many people have already been dead. Braavos announced the first confirmed Candida Virus case

in the country after three people tested positive for the infectious virus in the capital Dorne on 8

March 2020. After a certain amount of time, many people in Braavos were infected by the virus,

including health workers of medical care services, and many died also. The State first declared a

ten days shutdown effective from 26 March 2020 to combat the situation. Both private and

35 Dr Otorkpa, ‘World Health Organization(WHO) Definition Of Health’ (Public Health, 1 August 2019)

<https://www.publichealth.com.ng/world-health-organizationwho-definition-of-health/> accessed 5 August 2020. 36 Moot Proposition at ¶ 7



public sectors, except emergency services, were put to a temporary halt. The State exempted the

medical services from being closed to ensure medical treatment for all citizens.37

Within the timeframe when the State noticed that such action was not enough to prevent the

Canine-19 from spreading and also a chaotic situation all around the country spread for the

relatives of the persons who unjustifiably did not receive proper medical attention which was

there right to be received with, doing violence which created a lawless situation as, despite the

order of the State, many hospitals, medical and diagnostic centres denied treatment unlawfully to

regular patients as a result of which many lost lives, some of them elderly, sought treatment for

kidney and cardiac ailments with no canine-19 symptoms, the State of Braavos, for the physical

and mental well-being of its citizen’s health, on 28 March, on the ground of internal security.38

So, not only for ensuring the safety of the citizens of Braavos from Canine-19 but also to combat

the ongoing hazardous internal situation in the country, the President of Braavos declared

Proclamation of Emergency because it would be more convenient to combat the situation than

declaring a regular lockdown.

According to the Clause (c) of Section 5 Sub-Section 1 of the Songkramok Rog Protirodh O

Nirmul Ain, 2018 {Act No. 61 of 2018}39, in dealing with emergencies regarding public health

and for reducing health risks, building public awareness, preventing, controlling and eradicating

of contagious disease, the Government shall for this Act by its General or Special power take

necessary steps. Thus, the Government of the State of Braavos for reducing public health risks

and for the prevention, control, and eradication of the contagious Canine-19 disease40, the

President of the State of Braavos declared the proclamation of emergency under the provisions of

the Sections 141A, 141B and 141C of Part IXA (Emergency Provisions) of the Constitution of

the State of Braavos which is an extraordinary power provided to the President of the State of

Braavos by its Constitution as the regular lockdown was not enough to do so.

Despite knowing that National Emergency would create obstacles and various problems for the

Government itself, the State decided to go for it because the Fundamental Right to Life

guaranteed by the Constitution, which includes the Right to Health recognized by the State,

matters the most to the State of Braavos.

37 ibid at ¶ 4 38 ibid. 39 Communicable Diseases (Prevention, Control, and Eradication) Act 2018 (Section 5). 40 Clarifications, Para 36



A similar type of incident has been recorded in the State of Michigan of the USA. The Governor

of the State of Michigan on 1 April 2020, finding that Canine-19 had created emergency and

disaster conditions across the State just like the situation here in the State of Braavos, declared a

Proclamation of State of Emergency under Article 5(1) of the Constitution of the State of

Michigan to combat the situation.41

While most countries of the world, which are also facing these sorts of situations while

combatting Canine-19, only a handful of states like Braavos, despite knowing that National

Emergency would be more useful to deal with such situations, have not declared it. Braavos was

willing to risk everything just to ensure the health of its citizens. Braavos could have just moved

on with regular or general lockdown, which has not been a very effective way around the globe

to combat the global Canine-19 pandemic, which would also have favoured the Government of

the State of Braavos in remaining stable. However, the State of Braavos not being selfish but

selfless, only did the best which it possibly and ultimately could to make sure the safety of its

citizens and to protect their Right to Health which is an integral part of the Fundamental Right to

Life as recognized by the State of Braavos (despite being mainly a part of the Fundamental

Principles of State Policy in Part II of the Constitution of the State of Braavos having no judicial

enforceability which is not laws but principles or directives) under its Constitution having

judicial enforceability. That is why the proclamation of emergency was declared to ensure the

health safety of the citizens and which does not halt the Fundamental Right to Life, of which the

Right to Health is an integral part which very much proves the fact that the State of Braavos is

one of the most concerned States about the protection of the Fundamental Rights of its citizens.

So, there is no scope for the State to be blamed for the violation of Sersai’s fundamental rights,

which has only been violated by Medica, which acted against the State as well.

1.3.2 The Gunnison Strategy42

The proclamation of emergency declared by the President of the State of Braavos to ensure the

safety of public health and to combat Canine-19 to uproot it from the State, the strategy followed

41 Darrel Menthe, ‘Jurisdiction in Cyberspace: A Theory of International Spaces’ (1998) 4 Michigan

Telecommunications & Technology Law Review 69. 42 ‘Gunnison, Colorado: The Town That Dodged the 1918 Spanish Flu Pandemic | Coronavirus Outbreak | The

Guardian’ <https://amp.theguardian.com/world/2020/mar/01/gunnison-colorado-the-town-that-dodged-the-1918-

spanish-flu-pandemic?fbclid=IwAR1Mx9LoIW074J5hlqZfbdyDfwVLEod7O6l8W44A-FbLB8DqoUf3g-99U04>

accessed 5 August 2020.



by Gunnison town of Colorado in the USA which was the only place that was able to dodge the

Spanish Flu during the 1918 Spanish Flu pandemic.

The success of the town in combatting the greatest pandemic in the history of humanity to date

lies in its strategy. In late 1918 the world’s greatest killer – Spanish Flu – roared towards

Gunnison, a mountain town in Colorado.43

The pandemic was infecting hundreds of millions of people in Europe, Africa, Asia, and across

the United States, overwhelming hospitals and morgues in Boston and Philadelphia before

sweeping west, devastating cities, villages, and hamlets from Alaska to Texas. Gunnison, a

farming and mining town of about 1,300 people44, had particular reason to fear. Two railroads

connected it to Denver and other population centres, many badly hit. “The flu is after us,” the

Gunnison News-Champion warned on 10 October. “It is circulating in almost every village and

community around us.” What happened next is instructive amid a new global health emergency a

century later as the world struggles to react to the emergence of a new Candida Virus.

Gunnison declared a “quarantine against all the world.45” Its erected barricades sequestered

visitors, arrested violators, closed schools and churches and banned parties and street gatherings,

a de facto lockdown that lasted four months.46 However, the type of quarantine or lockdown as

was initiated and proved to be effective by and for Gunnison, Colorado, is highly unlikely to be

compared with today’s concept of quarantine and lockdown which has not been so useful for

many reasons mainly naming lack of awareness among the people in the present time especially

in the State of Braavos because of the vast population, unlike Gunnison. So, for this, the State of

Braavos had only one option left that could very well be the successor of the Gunnison Strategy

with modified tactics.

That is why the State of Braavos went for National emergency with the President also being

declaring the suspension of the Freedom of Movement and Freedom of Assembly but not the

Right to Life under the provisions of Article 141A, 141B, and 141C which is more strict than

regular lockdowns to combat Canine-19 and to ensure quarantine, social distancing, public health

and safety which the State tried to ensure by regular lockdown which failed an also created chaos

43 ‘“A Quarantine against All the World” - The Town That Dodged the 1918 Spanish Flu Pandemic ⋆ The Savage

Nation’ (The Savage Nation, 14 March 2020) <http://michaelsavage.com/a-quarantine-against-all-the-world-the-

town-that-dodged-the-1918-spanish-flu-pandemic/> accessed 5 August 2020. 44 ibid. 45 ibid. 46 ‘Gunnison, Colorado: The Town That Dodged the 1918 Spanish Flu Pandemic | Coronavirus Outbreak | The

Guardian’ (n 43).



against the internal security of the State on the verge of a medical emergency. In short, for

getting fruitful results from the Gunnison Strategy and also for National Security, National

Emergency is the most useful tool to do so.47

The State exempted the Medical Services from being closed during the emergency so that the

likes of Sersai could get proper or at least primary medical attention, but Medica violated it by

going against the State and acting against the Constitution. The health ministry of Bangladesh

issued an order on 11 May, asking all private hospitals to keep separate arrangements for

suspected coronavirus patients. It also asked hospitals not to turn away any patients if they have

treatment facilities.48 Moreover, if a hospital has to refer any patient to another one, it has to

inform the Covid-19 Hospital Control Room of the DGHS about this and follow the DGHS

instructions to ensure treatment for the patient.49 So, here only Medica is liable but not the State.

1.4 Right to Life during National Emergency

According to Article 141B of the Constitution of Braavos, while a proclamation of emergency is

in operation, Articles 36, 37, 38, 39, 40 and 42 will be halted or suspended automatically. Apart

from this, the President, with the written advice of the Prime Minister, may by order suspend the

enforcement of any or all of the other Fundamental Rights guaranteed in Part III of the

Constitution, and such a suspension shall remain in force for long as the proclamation remains in

force.50

Also, the President of Braavos, while declaring the Proclamation of Emergency, mentioned that

specifically Articles 36 and 37, which are Fundamental Constitutional Rights under Part III

known as Freedom of Movement and Freedom of Assembly, will remain suspended.51 The State

declared an emergency, under emergency fundamental and other civil rights of the people are

suspended52, democracy is not functioning, and participation of the people in the decision

making is absent.53 This step was mandatory to stop the chaos caused by the relatives of the

47 Moot Proposition at ¶ 5 48 ‘Denial of Treatment: Hospitals Defy Govt Warnings’ (The Daily Star, 24 June 2020)

<https://www.thedailystar.net/frontpage/news/denial-treatment-hospitals-defy-govt-warnings-1919517> accessed 5

August 2020. 49 Clarifications, Para 32 50 Mahmudul Islam, Constitutional Law of Bangladesh (2nd ed, Mullick Brothers 2002)., p. 318 51 Moot Proposition at ¶ 5 52 Tom Ginsburg and Rosalind Dixon (eds), Comparative Constitutional Law (Edward Elgar 2011). p. 134 53 Idrisur Rahman (Md) Vs Bangladesh, 2008, 37 CLC (HCD) [3993].



person who suffered a great deal for not receiving medical treatment unlawfully by the Medical

Services against the direct specific order of the State on them. The Right to Health, which is an

integral part of the Fundamental Right to Life recognized by the State itself, is not affected by

the National Emergency. Even the Deputy Director of Health Services said that no hospitals

could deny treatment to any patients, including those with fever, and added that the department

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

2020.54

Responding to the issue, District Civil Surgeon said that as per norms, a clear indication had

been given to all hospitals that they should not deny admission citing fever or cold and added

that the woman (Sersai) should have given treatment.55

So, Sersai, who tragically lost her newborn infant for non-admission of her in her unscheduled

sudden severe Labour pain, is for the actions of Medica only, and only they are responsible for

such Act as they violated the order of the State. However, the State, in this case, is not liable at

all.

1.5 Non-Liability of DMCH

The Dorne Medical College Hospital in the capital refused to admit Sersai, and the attending

doctor suggested to take her to Mothercare Maternity Hospital, which is a private, non—profit

and semi-charitable hospital.56

On the way to Mothercare, Sersai endured severe Labour pain and had to deliver her child at a

roadside. When they are taken to hospital, doctors declared the newborn dead on examination.

Nevertheless, DMCH cannot be held responsible here for the violation of Sersai’s Fundamental

Human Right(s). DMCH is a government hospital. Furthermore, in this time of the global

pandemic, the entire hospital is filled with Canine-19 positive patients. The doctors, nurses and

other health workers working in the hospital are always running. They are working with their life

risks despite having sufficient Personal Protective Equipments (PPEs) provided by the State.

Also, the hospital runs hundreds of Candida Virus tests every day.

54 ibid at ¶ 7 55 ibid 56 Clarifications. Para 2



So, DMCH is not a safe place at present for a pregnant lady or an infant because they could also

be getting infected with the contagious Candida Virus, also known as Canine-19, which would

make their physical health and condition more vulnerable than it is used to be. Besides, when

Sersai was taken to DMCH after being rejected from Medica who could have easily provided her

with maternity care service or at least a primary medical attention but did not; her condition was

worsened, and at that time she needed the best maternity care treatment which was not possible

to provide in DMCH for the Canine-19 situation. That is why she was suggested to be taken to

the Mothercare Maternity Hospital and on the way there she delivered, and her newborn infant

died. However, if Medica would have admitted her in the first place, the scenario would have

been different, and her newborn infant might not have to die.

So, DMCH in the current situation is not a safe place where a woman in severe labour pain can

be given the proper medical attention that she requires. It is a too dangerous place, especially for

a pregnant woman for the whole Canine-19 situation. So, for Sersai’s safety, she was not

admitted to DMCH, which could have caused her own life along with her child if she was taken

for admission. So, in a sense, the non-admission of Sersai in DMCH at least saved her life from

Canine-19 Pneumonia, which is deadlier for a pregnant woman.

1.6 Responsibility of Medica

First of all, Medica violated Sersai’s Right to Health, which is an inaugural part of Sersai’s

Fundamental Right to Life by refusing to admit her while she came to the hospital first in her

unscheduled and untimely Labour. Medica, as a private hospital, has the responsibility,

especially in the current situation of Canine-19, to treat every patient even with cough or cold

and fever. As the Canine-19 positive patients are treated in public hospitals like DMCH in the

State along with testing of Candida virus, it has reduced pressure on the private hospitals so that

they can handle patients with other problems.

Secondly, the Chairman of Medica said that Medica had no testing kits to test Canine-19 and

that is why they did not let Sersai in as she had high fever57 which is a significant symptom of

Canine-19, but yet it could have been just a regular fever, and it was because as of present date,

there is no report recorded of Sersai being infected with Canine-19. He also added that the

57 Moot Proposition at ¶ 6



Statement was being misled.58 However, the State has provided financial aid after the breakout of

Canine-19 to all the private healthcare services for buying a reasonable amount of testing kits

and PPEs for emergencies such as if any emergency patient like Sersai comes with fever to

private hospitals or clinics, for surety and safety, canine-19 tests can be done for those patients.

Also, reports show that only 25% of the population can use a publicly funded welfare in the State

of Braavos for lack of workforce and resources in public healthcare services like DMCH as the

population of Braavos is huge to bring everyone under the publicly funded healthcare facilities.59

However, the scenario would likely change in the future. However, it is not the case for private

healthcare services. The Government of the State of Braavos to ensure the Right to Health

recognized by the State itself as an integral part of Fundamental Right to Life guaranteed by the

Constitution provides financial aids to private healthcare services like Medica.

So, the State emphatically and denies such claim of Medica as false, and only it is responsible for

the death of Sersai’s newborn infant as it has violated Sersai’s Fundamental Right(s) against the

Constitution as well as the direct order of the State. The State is not responsible for the violation

of Sersai’s Fundamental Right(s).

1.7 Unjustified PIL Writ-Petition

“Equality For All” filed a PIL Writ-petition against the State, which cannot be valid. The State

has done everything in its power in the time of this global crisis, not only to ensure the Right to

Health recognized by the State itself as an integral part of Fundamental Right to Life guaranteed

by the Constitution for all the citizens. The State gave proper direction to all the hospitals to let

every patient in for proper and if not at least primary medical treatment or aid or attention even

with fever also which has been unconstitutionally and also unlawfully or illegally violated by

Medica.

Besides, the State also provided funding to the private healthcare services for buying a

reasonable number of PPEs and Canine-19 testing kits, but Medica did not do it and also claimed

falsely. “Equality For All” could have brought a criminal case against Medica in a Criminal

Lower Court as Medica has done Culpable Homicide to Sersai’s newborn infant under

Explanation 3 of Section 299 of the Penal Code, 1860. Nevertheless, here, filing a writ petition in

58 ibid at ¶ 5 59 ibid at ¶ 6



the form of a PIL to the High Court Division of the Supreme Court of Bangladesh is not justified

and is a waste of precious time of the Court and the State in this time of the pandemic when

Sersai can get justice in a Criminal Lower Court by bringing up a criminal suit against Medica.

Equality For All should have been more dedicated in their work as an NGO which was registered

with the NGO Affairs Bureau of Braavos under Foreign Donation Regulation Ordinance, 1978,

in 1993.60 It could have brought a real case against the actual responsible party Medica and could

also criminally get it convicted in a criminal lower court of law.

It would have saved the precious time of the High Court Division (HCD) of the Supreme Court

of Braavos (another division of the Supreme Court is the Appellate Division) and the State of

Braavos which is now most needed to combat the Canine-19 situation, and also Sersai might

have gotten the proper justice which she rightfully deserves. A PIL writ petition against the State

cannot be brought here because the State has done nothing that violates Sersai’s Fundamental

Rights but tried everything in its power to protect it. Nevertheless, the State would like to take

actions against Medica for violation of Sersai’s Fundamental Rights and take legal actions in a

lower criminal Court under Explanation 3 of Article 299 (Culpable Homicide) of the Penal Code,

1860 and also would take further actions in investigating about the false claim of Medica about

the Testing Kits for which the State provided funding to it.

The State also believes that the authority including the Chairman of Medica is involved in

Corruption which shall be dealt with actions strictly taken by the State by suing Medica in a

criminal lower Court of the Law with further inquiry61 under Section 5 of the Prevention of

Corruption Act, 194762 as well as under the relevant provisions of criminal misconduct under the

Anti-Corruption Commission Act, 2004, the Anti-corruption Commission Rules, 2007 and the

Code of Criminal Procedure (CrPC), 1898. The State would also ask the victim Sersai to join it

as the State itself wants justice for Sersai.

60 Clarifications, Para 11 61 Begum Khaleda Zia Vs Anti-Corruption Commission and Others, 2015, 44 CLC (HCD). 62 ‘The Prevention of Corruption Act, 1947 | 5.Criminal Misconduct’ <http://bdlaws.minlaw.gov.bd/act-217/section-

3312.html> accessed 5 August 2020.



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.

2.1 The emergency declaration was made according to the provisions of the

Constitution.

During the ongoing medical emergency around the world due to the outbreak of Candida Virus

or Canine-19, the State of Braavos declared a national emergency on 28 March 2020 on the

ground of internal security.63

2.1.1 Existing disturbance being a threat to the internal security

The State of Braavos confirmed their first Candida Virus or Canine-19 case on 8 March 202064

and started conducting tests across the country, which had a significant impact on the health

sector of the State. In order to give a check to the spread of the virus, the Government declared a

10-day shutdown effective from 26 March 2020 to 4 April 2020.65

All sorts of measures were taken on behalf of the State to ensure that the shutdown is effective

without causing any sufferings to the people of the State by proper directions to the private and

public sectors, employment of armed forces in 64 districts for maintaining social distance and all

providing aid during such emergency going in the State.66

However, despite all these measures law and order of the State seemed to go out of control as the

people of the country was so panicky and on top of that denial of the clinic and hospital

authorities to give treatment soon made the general people very much aggressive which resulted

into attacks on the hospitals, clashes with law enforcement agencies, mobbing, burglary, price

hike all over the country. All this amounted to a threat to the internal security of the State, and in

order to maintain the decorum of law and order, the President declared a Proclamation of

63 Moot Proposition at ¶ 5 64 ibid at ¶ 3 65 ibid at ¶ 4 66 ibid.



Emergency on 28 March 2020 on the ground of internal security.67 According to Article 141A68,

The validity of a proclamation of emergency depends upon the satisfaction of the Executives

about the existence of two things - (1) there is war69, external aggression or internal disturbance

and (2) security or economic life of Bangladesh or any part thereof is threatened by such war,

external aggression or internal disturbance.

For issuance of the proclamation of the actual emergency occurrence of armed conflict is not

necessary for war situation which may exist even before actual armed hostility, and may

continue even after armed hostility has stopped. However, in the case of the proclamation of

emergency for internal disturbance, there must be an actual disturbance that threatens the

security or economic life of Bangladesh.70

When the President of Braavos declared the emergency, the State was going through some actual

disturbance which possessed to be a threat to the internal security. The people were already

engaged in continuous clashes with law enforcement agencies, which created a lawless situation

around the State. Furthermore, on top of that hike of criminal activities like attacks on hospitals,

burglary, destruction of public vehicles, etc. was making the situation out of control. So

considering the circumstances of the State, it is visible that there was the existence of actual

disturbance that fulfills the provision of emergency according to the Constitution of Braavos.

2.1.2 Emergency declaration depends on the satisfaction of the President

The validity of a proclamation of emergency depends upon the satisfaction of the Executives.71

Article 141A says that the President can declare emergency whenever he thinks that a grave

emergency exists in which the security or economic life of Braavos or any part thereof is

threatened by war, external aggression or internal disturbance.72 The declaration of emergency,

therefore, depends on the subjective satisfaction of the Executives.73

67 ibid at ¶ 5 68 The Constitution of Braavos. 69 Owen Hood Phillips and Paul Jackson, O. Hood Phillips’ Constitutional and Administrative Law (7. ed., 4. impr,

Sweet & Maxwell 1992). p.317 70 Islam (n 51). p. 318 71 ibid. 72 Md Abdul Halim, Constitution, Constitutional Law, and Politics: Bangladesh Perspective : A Comparative Study

of Problems of Constitutionalism in Bangladesh (10th edn, CCB Foundation 2017)., p. 285 73 ibid. at p. 286



In S.R. Bommai And Others vs. Union Of India And Others,74 the Supreme Court of India held

that the scope of judicial review in the Constitutional law extends only to prevent actions that are

unConstitutional or ultra vires the Constitution. The areas where the judicial power, therefore

can operate are limited and pertain to the domain where the actions of the Executive or the

legislation enacted infringe the scheme of the division of power between the Executive, the

Legislature and the judiciary or the distribution of powers between the States and the centre. The

judicial power has no scope in Constitutional law beyond examining the said infringements

That means the Court cannot question the justifiability of the satisfaction of the President.75 The

Constitution has committed the matter to the discretion of the Executive, and Parliament has

been given the authority to approve or disapprove it. In such a situation, it is not for the Court to

question the adequacy or sufficiency of the grounds of satisfaction or the correctness of the facts

upon which the satisfaction is based.76

Also, The satisfaction of the President under and the basis thereof are subjective and are not

subject to objective tests by judicial review. The question involves high Executive and

administrative policy, and the Court will find out no standard for resolving it judicially. The

High Court also asserted that the satisfaction of the President was not a justifiable matter.77

The Proclamation of Emergency declared by the President of Braavos was based on his

satisfaction that the current lawless situation in the State is creating an actual disturbance which

is a threat to the internal security of the State. Moreover, this satisfaction is not a justifiable

matter as it is the sole authority of the President with the countersign of the Prime Minister. Thus

the declaration of emergency was not violative of the provisions of the Constitution.

2.2 That Closing of Courts did not violate the fundamental rights

Due to the 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 due to the global coronavirus

outbreak. Later the holiday was extended for the fifth time until 11 May 2020.78

74 SR Bommai And Others vs Union Of India And Others (AIR 1994 SC 1918). 75 Halim (n 73). at p. 285 76 Islam (n 51). at p. 320 77 Bijayananda V President of India AIR (1974) Ori 52. 78 Moot Proposition at ¶ 8



2.2.1 Suspension of fundamental rights during emergency

According to Article 141B of the Constitution of Braavos, The issuance of the proclamation shall

automatically suspend the operation of the fundamental rights guaranteed by Arts. 36, 37, 38, 39,

40, and 42 and a law made during the continuance of the emergency shall not be void because of

inconsistency with the provisions of these Articles' for so long as the proclamation remains

operative.79 As the President of Braavos declared an emergency on the ground of internal

security on 28 March 2020,80 the above mentioned fundamental rights were suspended already

for so long the proclamation was in operation.

That means these rights were no longer Constitutionally available to the citizens of the State. We

know that fundamental rights are inalienable which means can not be taken away, but at the

same time, there arises some situation in which in order to maintain law and order of the State

the Government has to curtail certain rights of the citizens which are not a violation of the

Constitution.

If individuals are allowed to have absolute freedom of speech and action, the result would be

chaos, ruin, and anarchy. On the other hand, if the State has absolute power to determine the

extent of personal liberty, the result would be tyranny. So restrictions may be imposed on the

enjoyment of fundamental rights for the higher purpose of public welfare.81

During a global pandemic where the life of the entire population is at stake, it is the fundamental

duty of the State to ensure the safety and security of the citizens of the State. In such a situation,

if the courts are kept open for its regular proceedings, it would be a threat to the life of every

people working in and around the court structure. Thus for a more significant benefit of the State,

the Supreme Court authorities on 29 March 2020 had issued a notification declaring closure for

all courts in Braavos till 2 April due to the global coronavirus outbreak.

As the State of emergency was in operation in the State of Braavos, it automatically suspended

certain fundamental rights provided by the Constitution. Thus it can not be termed as a violation

of the Constitution.

Also, the courts started its proceedings 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.

79 Islam (n 51). 80 Moot Proposition at ¶ 5 81 Halim (n 73). at p. 101



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’.82

This specific initiatives adopted by the State was in order to ensure that the people of the State

can reach the Court with their urgent needs when the courts remained closed in a practical

manner. Also, In this way, the State ensured the maintenance of the absolute fundamental rights,

which does not come under the purview of national emergency.

2.2.2 Enforcement of the fundamental rights were ipso facto suspended

On 29 March 2020, the Supreme Court of Braavos issued a notification declaring closure for all

courts around the State.

According to Article 141C of the Constitution83 during the proclamation of emergency in a State

the right to move to any court for the enforcement of the fundamental rights by part 3 of the

Constitution shall remain suspended for the period during which the proclamation is in force.84

As the President of Braavos declared an emergency across the State on the ground of internal

disturbance85, the right to enforce the fundamental rights were ipso facto suspended with other

fundamental rights guaranteed by the Constitution.

82 Moot Proposition at ¶ 9 83 The Constitution of Braavos. 84 Md Ataur Rahman & others Vs B M Muhibur Rahman & others, 2008, 37 CLC (AD) [2979]. 85 M Saleem Ullah Advocate Vs Bangladesh, 2004, 33 CLC (HCD) [7029].



PRAYER

Therefore, in the light of facts stated, issues raised, arguments advanced, and authorities cited,

the respondent, the State of Braavos, most respectfully requests this Honorable Court be pleased

to:

A. Dismiss the writ petition.

B. In the alternative declare and adjudge that:

i. Non-admission of Sersai have violated Sersai’s fundamental right(s) and only Medica

can be held liable for the violation of fundamental right but not the State;

ii. The declaration of a national emergency is not violative of the Constitution and

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.

Furthermore, for this, the Respondents as in duty bound shall humbly pray.

Respectfully submitted,

Counsels for the State of Braavos

BEFORE THE HONOURABLE SUPREME COURT OF BRAAVOS

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