Lockdown, Law and Life: A Critical Thought in a Constitutional Tone

1,731 Views

We all are well informed of the fact that our government had locked down 52 zones of Dhaka after COVID-19 positive patients were found in the territories. [1] Later, 45 out of 64 districts were completely locked down.[2]At this moment, every district is under lockdown except 3 districts.[3] Though it is now really risky to roam around on streets, how constitutional is it to impose a restriction on movement? Is this not suicidal to the day laborer, the rickshaw puller, the street livers and small vendors?

Laws regulating pandemic situation:

The law which is now being used to lockdown different parts of Bangladesh is The Communicable Diseases (Prevention, Control and Elimination) Act, 2018. Under Section 11 of this Act, with the prior approval of the Government, the directorate general of health services can restrict or control the access of any person near the place of an infected person.

On 16th April 2020, The government declared entire Bangladesh at risk of the coronavirus pandemic under section 11(1) of the Infectious diseases (Prevention, Control and Elimination) Act 2018.

Section 11 of the aforesaid Act states about the declaration of an infected area, control of access in the infected area etc.

Section 11(1), under which the entire country was declared at risk of the coronavirus pandemic states about declaring any local area or territory as an infected zone. It does not seem a perfect step to declare the entire country as infected using this provision. The declaration could be done using a series of division-wise circulars, or even one circular stating the names of the local areas or territories as stated in the law.

Section 11(2) talks about the authority of the Director-General or authorized officer to put restrictions in contact with an infected person or entry of another person into the infected place.

What is meant by the term ‘place’ is not clear in this Act. It can include many places from an infected person’s room to the whole area where he lived. Meaning, if one person found infected inside his apartment, to what extent everyone around his locality will fall under restrictions is not clear in this legislation.

When an area is getting under lockdown, people cannot move or work which is, to some extent violating their right to move and right to work (conducting trade or business) as mentioned in Article 36 & Article 40 in the Bangladesh Constitution.

As mentioned in Article 141A, there is a provision of emergency that can constitutionally stop civil rights including the freedom of movement temporarily (120 days) as mentioned in Article 141B in the Constitution. But, to proclaim an emergency, the President has to be satisfied that the economic life or the security of this republic is threatened by war or external aggression or internal disturbance. In the present situation, the conditions which have stated in Article 141A have not occurred in Bangladesh, therefore no proclamation of emergency will be issued by the President & probably that is why the government is not declaring an emergency.

Right to Movement:

The supreme law of the land and the reflection of every citizen’s rights can be found in the Constitution. Now let us have a look at what does the Constitution state about such a frozen situation?

As indicated by Article 36 of the Constitution of Bangladesh, ” Subject to any reasonable restrictions imposed by law in the public interest, every citizen shall have the right to move freely throughout Bangladesh, to reside and settle in any place therein and to leave and re-enter Bangladesh.”

There is no fixed standard of determining the term ‘reasonable’, citizens can face a restriction on movement anytime which may seem reasonable by the government. Due to the restriction on movements, daily wage earners will die in hunger if they do not get any help from the government. They need money to buy food which they do not have at the moment.

Right to Life: Beyond Textual Representation

One man committed suicide because he failed to earn money in corona virus outbreak and couldn’t feed his family. His family was starving for a few days and did not receive any relief from any organization or government. [4] Death of a person may seem small in number, but if the day laborer, rickshaw puller, street merchant, and every other daily wager do not get support from the government, such incidents can go up in number.

According to Article 32 of the Constitution of Bangladesh, “Everyone has the right to life, liberty, and security of person.” Difficulties to secure the right to life originate from numerous positions, including from subjective activity by the police or security powers, and deficient or absence of implementation of wellbeing laws and guidelines.

The concept of the right to life encompasses not only negative duties on the state but also positive obligations. For example, to secure the right to shelter, that can also include the right of food especially in such hard times of lockdown due to corona virus. Such elaborated concepts of right to life have successfully obtained judicial recognition in BLAST and others vs. Bangladesh and others. [5]

In Ain O Salish Kendra Vs Bangladesh, it was declared that when rootless people have been taken shelter in slums and somehow making a livelihood, their wholesale eviction without any scheme of their rehabilitation has been found to offend the right to life. [6]

In another mentionable case[7], the High Court Division of the Supreme Court of Bangladesh referred to the preamble of the constitution which states that the preamble glorified the pledge of the nation to establish a society where the rule of law, fundamental human rights, living with dignity will be secured for all the citizens under Article 31 & 32 of Bangladesh constitution.

Lockdown: Connection with Right to Life and Food

The concept of the right to life has managed to get a larger meaning which more than plain texts. The High Court Division of the Supreme Court of Bangladesh can and has issued judgments and orders dealing with aspects of food rights.

In Rabia Bhuiyan, MP v Ministry of LGRD& Others, the Court relied on a harmonious reading of Article 15, the right to food and basic necessities, and Article 32 in concluding that the failure to provide access to safe food and potable water violates the right to life.[8]

High Court Division has shown in different judgments how the concept of Right to life is connected with simple things like eviction without providing alternative shelter[9] to selling radiated milk powder[10] in Bangladesh. Such interpretation of the concept of right to life elaborated the scope of Article 32 of the Constitution.

Similarly, lockdown without ensuring foods, especially to the lower class of the society will be a violation of the right to life- as a result, it will become unconstitutional. Prompt action should be taken by the Government to ensure safe food for at least those who used to earn a small amount and lockdown has stopped their income. Our government should make sure at least those who used to earn on a daily basis get easy access to food. At the point when the very basic right to life of the country is jeopardized, however, such constitutional arguments may seem to be too harsh.

The counter-arguments do contain the doctrine of necessity. Nemo judex in causa sua is a Latin phrase meaning, “no one is judge in his own cause”. Doctrine of Necessity is an exception to this legal maxim. Doctrine of Necessity says, in a situation of emergency or exigent circumstance, a state may legitimately act in ways that would normally be illegal.

It is based on legal maxim ‘which is otherwise not lawful or constitutional is made lawful by necessity’ given by English Jurist Henry de Bracton. Lockdown is a necessity that may cause some harm but to an extent, it will serve the greater interest. At this moment, if we are willing to acknowledge that these unexpected events are convincing us to act beyond the four corners of our regular laws, at any cost let us not lose focus on the poor people – those who are most underestimated.

Conclusion:

Corona virus is not only taking lives, but it is also destroying the economy. In such a situation, lockdown without providing enough food to the citizens is hampering the right to life which is guaranteed by the Constitution – the supreme law of the country. As the government has come up with taka seventy-two thousand, seven hundred fifty crore package to address the impact of corona virus, food, and treatment should put into priority and the government has to be prompt in taking actions to save lives and reduce sufferings of the citizens’ as low as possible.