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“The Legal Basis of Lockdown in Bangladesh Context”

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On December 31 last year, China alerted WHO to several cases of unusual pneumonia in Wuhan, a port city of 11 million people in the central Hubei province. The virus was unknown. Then, on January 7, officials announced they had identified a new virus, according to the WHO. The novel virus was named 2019-nCoV and was identified as belonging to the coronavirus family, which includes SARS and the common cold

This 2019–20 coronavirus pandemic was confirmed to have spread to Bangladesh on March 2020. The first three known cases were reported by the country’s Institute of Epidemiology, Disease Control and Research (IEDCR) on 7 March 2020. As of 27 March, 2020, the Government of Bangladesh has confirmed testing 1026 individuals among whom there is a total of 48 confirmed cases, 11 recoveries, and 5 deaths in the country

In the meantime, government locked down Shibchar upazila in Madaripur district as three more COVID-19 patients were identified, Phulbari upazila, Tolarbagh neighbourhood of Mirpur.The government has decided to suspend all public transport services to slow the spread of novel coronavirus, inching closer to enforcing a lockdown. It already suspended operations of all passenger trains, launches and domestic flights. Buses, minibuses, CNG-run auto-rickshaws will be off the roads. Freight trains, cargo vessels, trucks and lorries carrying goods, medicine, fuel and perishable items will, however, operate as usual, according directives from different ministries

Finally on March 16, Education Minister Dipu Moni said all educational institutions will remain closed till March 31, starting from 17th March, as a preventive measure against spread of the coronavirus and on March 23, Cabinet Secretary Khandker Anwarul Islam said, all government and private offices will be closed from March 26 to April 4 to prevent the spread of coronavirus.

So all this has happened by the government of Bangladesh. “Lockdown-Social distance-Home quarantine-Isolation” those words are known to all of us. But the biggest question is how the government of Bangladesh got the power?

According to Article 141A of the Constitution of People’s Republic of Bangladesh, there are three circumstances under constitution in which circumstances emergency may be proclaimed by president namely-War, external aggression and internal disturbance. But there is no provision regarding Public Health Emergency under the Constitution of People’s Republic of Bangladesh.

Actually a state of emergency is a situation in which a government is empowered to perform actions or impose policies that it would normally not be permitted to undertake. Such declarations alert citizens to change their normal behavior and orders government agencies to implement emergency plans. Where a lockdown is an emergency protocol that usually prevents people or information from leaving an area. The protocol can usually only be initiated by someone in a position of authority.

There are some ticklish difference between state of emergency and lockdown-In case of lockdown no special pass is required to go out but there need a special pass for go out in case of state of emergency. There available a list of exemption in lockdown but in state of emergency there are very few exemption. Lastly lockdown essential services remain accessible but in state of emergency the essential services are curtailed. So it is clear that, lockdown and state of emergency is not same at all. The meaning of lockdown give more emphasis as preventive measure rather than impose strict restriction. And thus lockdown is not similar with the state emergency mention in article 141A. The government got their lockdown power from other domestic law. There exist the communicable diseases under the Communicable Diseases (Prevention, Control and Eradication) Act, 2018 which enacted on 14th November, 2018. The main aspiration of this act is – “to address public health emergencies and reduce health risks for raising awareness, preventing, controlling and eliminating infectious diseases”

According to section 4 of the communicable diseases under the Communicable Diseases (Prevention, Control and Eradication) Act, 2018, there is a list of 23 Communicable Diseases and also mentioned that other  Emerging or Reemerging Diseases which may be declared by the Government, in the Official Gazette. On 18 March the High Court directed the government to issue a gazette notification declaring coronavirus a contagious disease in the country, and to inform it about steps taken to tackle this disease. The health secretary has been asked to issue the gazette notification including the name of coronavirus in the list of communicable diseases under the Communicable Diseases (Prevention, Control and Eradication) Act, 2018, to tackle any emergency situation related to public health by checking and eradicating this contagious disease.

The government has incorporated the life-threatening novel coronavirus (COVID-19) in ‘The Communicable Diseases (Prevention, Control and Eradication) Act, 2018’ to take legal action to check the disease. The health service wing under Ministry of Health and Family Planning issued a gazette in this regard. The gazette has been given a retrospective effect from March 08, 2020. Joint Secretary Abdul Wahab Khan, who signed the gazette, said with the issuance of the gazette the government has got a legal power to take action against the people not following the government’s direction. By this way the government has got power under the Communicable Diseases (Prevention, Control and Eradication) Act, 2018.

Section 11 of the Communicable Diseases (Prevention, Control and Eradication) Act, 2018, mentioned some particular area that can be declare as infected area by order of government Section 14 of the Communicable Diseases (Prevention, Control and Eradication) Act, 2018 said about temporarily transferred or displaced to another location of infected person. And section 16 of the Communicable Diseases (Prevention, Control and Eradication) Act, 2018 discussed about some specific measures which may be taken by empowered employee.

 Punishment under the Communicable Diseases (Prevention, Control and Eradication) Act, 2018-According to section 24, if a person helps spread the infectious germs, shall be punished for a maximum period of six (six) months, or a fine of not less than one (one) lakh taka, or both. According to section 25, if any person obstructs or hinders or disagrees with any direction shall be punished with an additional term of three (three) months, or with a fine not exceeding (fifty) thousand taka, or both. And according to section 26, if a person deliberately gives false or incorrect shall be punished for a maximum period of two (two) months, or a fine of up to twenty (twenty-five thousand) taka, or both.

There are another act called The Disaster Management Act, 2012. According to section 2(11) (c), ‘Disaster’ means Disease causing pandemic, such as pandemic influenza, bird flu, anthrax, diarrhea, cholera, etc. So the government has some obligation under this act. Section 19 of said act empowered government to formulate a National Disaster Management Policy considering different communities, geographical region, hazard and sectors in consistence with working structure concern to international and regional disaster management. There are also exist the provision for distress zone, distressed area, affected person and Disaster Management Fund chapter five is said about the offence and punishment as well as.

Chapter XIV of the penal code 1860 deal with offences affecting the public health, safety, convenience, decency and morals. According to section 269- any person shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both who unlawfully, negligently and knowingly spread the infection of any disease dangerous to life. And according to section 260- Who malignantly does any act to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

On March 23, Cabinet Secretary Khandker Anwarul Islam said, the army would start assisting the local administration at divisional cities and district towns in ensuring social distancing and implementing other precautionary measures. So the question how the army got the power?

According to section 130 of the code of criminal procedure, 1898- “any officer-in-command of any group of persons belonging to the Armed Forces to disperse the assembly with the help of the Armed Forces under his command” and can arrest and confine such persons forming part of it as the Magistrate or the Police Commissioner may direct. Section 131 considers a situation in which the Executive Magistrate is somehow incommunicado and the riot situation is full-blown. In such cases, “any commissioner or gazetted officer of the Armed Forces may disperse the unlawful assembly with the help of the Armed Forces under his command.” But the officer has to comply with the instructions of the Magistrate once communication is established with the latter. And section 132 protects the officers and members of the Armed Forces from prosecution for acts done in good faith in the course of their duties to contain the riot.

According to section 141 of the penal code, five or more persons is designated an “unlawful assembly and the third condition is-“To resist the execution of any law, or of any legal process”. And mass gathering prefer “a sufficient number of people” and the order of lockdown is a governmental order which is a legal governmental steps to prevent spread of disease.

An “aid-to-the-civil- power” function, based on the British colonial code, was used extensively during the united Pakistan era and has been employed by civilian and military governments since 1971.Military deployments in aid-to-civil roles fall into three categories. The first and most pervasive use of the military is to assist local authorities and police in putting down riots and conducting counterinsurgency operations. The military’s second aid-to-civil mission entails running essential services or industries whenever public sector employees stage a strike. A third aid-to-civil mission is to perform in disaster. For prevent and dispersal the “Mass gathering” in anywhere inside the country, military got their power through section 130 – 132 of the code of criminal procedure and armed forces will be deployed under the third category of “Aid to Civil for Power” 

Thus the way the government of Bangladesh got the power to declare lockdown and military also got the power through provision of CrPC. As we know, according to Article 32 of the Constitution of People’s Republic of Bangladesh, “No person shall be deprived of life or personal liberty save in accordance with law” so everyone has right to life which include medical facilities too. It can be said that, the government must take all necessary measures for tackling the diseases and to save affected and non-affected persons as it the fundamental right of people of Bangladesh to live a healthy life. After all, the Doctrine of Necessity proclaims loud and clear that “Necessity knows no law”.

Written by :

Lamia Khan Shethil, Vice-President (Events), NILS Daffodil International University Chapter.

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