In part I, I highlighted the notable pronouncements of the High Court Division (HCD) and the Appellate Division (AD) of the Supreme Court (SC) of Bangladesh unrelated to the COVID-19 pandemic from March 2020. Here in part II, I focus on the HCD’s directives relating to COVID-19. The HCD issued several rules in the form of directives asking the concerned authorities to ensure that COVID-19 did not spread throughout Bangladesh and the government and the health sector were prepared to effectively respond to this pandemic.

Directing to prevent the outbreak of COVID-19 in Bangladesh

On 5 March Advocate Ishrat Hasan brought the HCD’s attention to the news that Bangladesh was at risk of the coronavirus outbreak. The HCD instantly issued a rule nisi with three directives to the government: (1) to inform the court whether the authorities were screening people entering the country through air, water and land routes; whether the concerned personnel were trained and well equipped to carry out such screenings; and whether all the machines used to carry out such screenings were functional; (2) to arrange for separate cabins in all public and private hospitals for treating patients affected with coronavirus and to confirm that hospitals, especially private hospitals, had taken all preparations to deal with such patients; and (3) to check the availability of adequate number of testing kits in all the designated places for screening people who were suspected of contracting coronavirus and in case of their unavailability, to urgently import such kits. It fixed 9 March as the next date of hearing. 

The HCD acted immediately after the filing of the writ petition and directed the authorities to take precautionary measures to prevent an outbreak. However, from the court’s following rule to check the price hike of masks and hand sanitizers, it becomes evident that the authorities remained lax in their response. 

Ruling to check price hike of masks and hand sanitizers

During the next hearing on the above writ on 9 March the HCD expressed its displeasure over the fact that the thermal scanners in the airport were out of order. It then directed the authority to provide for functional thermal scanners without any delay. While urging the government to adequately stock masks and hand sanitizers as a safety measure, the court cautioned them against unscrupulous business syndicates taking advantage of the pandemic by hiking their prices in the market. Furthermore, the court ordered strict punishment for such activity and even asked the government to run mobile courts to stop these syndicates. In this connection, RAB’s mobile court fined online shopping platform Daraz for charging excessive rates for a box of masks. Mobile court drives throughout Dhaka also led to imprisoning one individual and imposing fine on 29 pharmacies for hoarding and hiking prices of masks and hand sanitizers.

While the court’s order to check price hikes of essential safety items was well-intentioned, its willingness to let mobile courts run by executive magistrates carry out this task seems dubious. The HCD itself declared mobile courts run by executive magistrates illegal in 2017. Although the AD stayed that verdict, it is yet to dispose of the appeal.

Directing to enlist COVID-19 as a communicable disease

In a writ petition on 18 March Law and Life Foundation sought two directives from the HCD: to order the closure of courts across the country and to keep the returnees from abroad in quarantine in state-designated places. In this connection, they asked the court to direct the government to enlist COVID-19 as a communicable disease (emerging or reemerging) under section 4 of the Communicable Diseases (Prevention, Control and Eradication) Act, 2018 (the 2018 Act). Listing COVID-19 as a communicable disease would help to contain the spread of coronavirus and legally ensure that the affected ones were kept in isolation and quarantine, the writ petitioners submitted successfully. Consequently, the court asked the government to declare coronavirus as a communicable disease under the 2018 Act via a gazette notification. The government complied with the directive and issued the gazette notification on 23 March.

While the original prayer for the closure of all courts points to the petitioner’s abuse of the provisions of article 102 (2) of the constitution, the only positive takeaway from this is the court’s order and the government’s subsequent compliance to enlist COVID-19 as a communicable disease under the 2018 Act.   

Issuing directives on dealing with the influx of overseas returnees

Following a writ petition by Advocate Eunus Ali Akond the HCD on 19 March issued several preliminary directives to the concerned authorities to deal with the sudden influx of overseas returnees. Firstly, it asked the Ministry of Civil Aviation and Tourism to ensure that every individual entering the country was first handed over to the police and then compulsorily sent to quarantine for 14 days in state-designated quarantine facilities. Secondly, it asked the secretary of Ministry of Health and Family Welfare (MOHFW) to take necessary steps to screen these returnees and the suspected COVID-19 patients. Moreover, the court directed them to ascertain that the returnees were kept in quarantine for a minimum of 14 days or longer if they tested positive for COVID-19. Thirdly, the court directed the cabinet secretary to ask all deputy commissioners across Bangladesh to supervise these returnees so that they remain in compulsory home quarantine for 14 days and prevent community transmission. Lastly, the court asked MOHFW to submit two lists by 16 April – the details of individuals who have been affected with COVID-19 and the ones who were released after compulsory quarantine for 14 days for testing negative for COVID-19.    

This writ seems to be premature since the petitioner failed to specify if he had exhausted ‘all other equally efficacious remedies’ before coming to the HCD as the last resort – a prerequisite of article 102 (2). Thus, the court should have exercised restraint before issuing these directives. However, given the huge influx of overseas returnees into the country and the authority’s failure to quarantine them, the court may have felt the need to act expeditiously to help contain the outbreak of COVID-19.

Directing to supply personal protective equipment (PPE) to healthcare providers 

On 22 March Human Rights and Peace for Bangladesh brought the HCD’s attention to reports on the shortage of PPE for healthcare providers across the country and prayed for necessary orders. The petitioners submitted that without PPE the healthcare providers would be at risk of contracting the virus. This situation makes them unable to treat the patients, they contended. Afterwards, the court asked the secretary of MOHFW to form an expert committee to list all protective equipment required during the pandemic within 48 hours. It further ordered the concerned authorities to procure all such equipment from seven days of receiving the list and the Directorate General of Health Services to ensure proper distribution of the equipment to every healthcare provider across the country. 

Like the abovementioned writs, the petitioners should have approached the concerned authorities first before filing the petition to fulfill the prerequisite of article 102 (2). Earlier while healthcare providers were demanding PPE, there was no response from the authorities. Therefore, the court may have felt it necessary to come up with these directives.

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