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21 April, 2020 10:45:16 AM / LAST MODIFIED: 2 May, 2020 07:05:25 PM
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Closure of Supreme Court: Fundamental rights suspended during pandemic?

At this critical time of Covid-19 pandemic, the Supreme Court may continue to hear limited cases involving serious public importance and fundamental rights of citizens following neighbouring Indian Supreme Court model
M Qaium
Closure of Supreme Court: Fundamental rights suspended during pandemic?

1. It is known to us all that fundamental rights guaranteed in the constitution are inalienable. They can't be suspended under any circumstances nor can they be abrogated except few of them when state of emergency is declared by hon'ble President on the written advice of the Prime Minister in the event of grave emergency in which the security or economic life of Bangladesh, or any part thereof, is threatened by war or external aggression or internal disturbance. Further, Article 141C(1) of the constitution clearly says, "while a Proclamation of Emergency is in operation, the President may, on the written advice of the Prime Minister, by order, declare that the right to move any court for the enforcement of such of the rights conferred by Part III of this Constitution as may be specified in the order, and all proceedings pending in any court for the enforcement of the right so specified, shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order." Article 141 clearly transpires that the framers of the constitution did not even authorise the hon'ble President to suspend fundamental rights of the citizens except rights guaranteed in 36, 37, 38, 39, 40 and 42 even in state of emergency. Therefore, in a situation like current coronavirus pandemic, fundamental rights can't be suspended. It is thus clear that no authority may stop any citizen from approaching the High Court either directly or indirectly for enforcing such fundamental rights.

2. Supreme Court is the guardian of our sacred constitution and High Court Division of the Supreme Court has been entrusted and empowered by the Constitution to issue appropriate orders and directions on the application of aggrieved persons to safeguard and enforce fundamental rights of the citizens.  Enforcement mechanism of fundamental rights is provided for in Article 44(1) which says "the right to move the High Court Division in accordance with clause (1) of article 102, for the enforcement of the rights conferred by this Part is guaranteed."  Article 102 of the constitution clearly entrusted the power to enforce such rights on High Court Division giving all the powers to it for issuing orders and directions for safeguarding those fundamental rights of citizens.  Article 102(1) says "the High Court Division on the application of any person aggrieved, may give such directions or orders to any person or authority, including any person performing any function in connection with the affairs of the Republic, as may be appropriate for the enforcement of any of the fundamental rights conferred by Part III of this Constitution."  Citizens will therefore approach the Court when their fundamental rights are violated and for redressing such violations Court should always be kept open and vigilant since it is the spirit of our constitution.

3. Considering the coronavirus pandemic and health risk caused by it, Hon'ble Chief Justice who is guardian of our judiciary with consultation of his companion Justices of the Supreme Court decided to keep the function of both the Divisions of the Supreme Court closed until 23rd of April, which may, in my anticipation, be extended for further period since situation even deteriorating every day. The Letter issued by the Supreme Court administration even discarded any idea of limited functioning of High Court benches citing health risk of everyone involved. Which means in effect enforcement of fundamental rights are now suspended due to complete closure of High Court Division.

4. In the present context many citizens are feeling aggrieved by the hopeless failures and inaction of many responsible governmental and/or statutory authorities those were responsible for safeguarding citizens rights providing adequate health care and safely. One of the most important of all fundamental rights is right to life which is now in many ways endangered by the failures of responsible state functionaries. For redressing such failures aggrieved citizens required to approach High Court Division for just and appropriate order. However, citizens are now feeling violated and helpless as door of redress and justice is closed. Mechanism of enforcement of fundamental rights of the citizens against the statutory authorities should never be obstructed nor halted directly or indirectly under any circumstances. This total shutdown of High Court Division of Supreme Court is not consistent with the spirit of Supreme Supreme Court’s decision in Tayeeb vs. Bangladesh reported in 67 DLR AD 57 where it held that "judges are bound by their oath to uphold constitution including fundamental rights of the people guaranteed therein".

5. At this critical time of Covid-19 pandemic, the Supreme Court may continue to hear limited cases involving serious public importance and fundamental rights of citizens following neighbouring Indian Supreme Court model or if necessary through technology. Even Supreme Court of Victoria, Australia has decided to continue its operation using e-judiciary to ensure the Court can continue to deliver core and vital services during the coronavirus pandemic. High Court of Kerala of India is exemplary in using technology while delivering justice yet maintaining social distancing. Very recently while entire Indian is under lockdown, Supreme Court of India, sitting in constitutional bench even upon hearing a public interest litigation, directed private hospitals to provide free testing facilities to underprivileged people. Our Supreme Court, being guardian of constitutional and body entrusted to safeguard rights of citizens, should not be entirely shut for such long period in any circumstances. I hope Hon'ble Chief Justice will take initiative to facilitate at least hearing of some cases of grave public importance involving fundamental rights. Supreme Court administration may facilitate this even by following all precautionary guidelines suggested by Directorate of Health.

The writer, Barrister-at-Law, is an advocate, Supreme Court of Bangladesh. E-mail: Abdulqaium85@gmail.com

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Editor : M. Shamsur Rahman
Published by the Editor on behalf of Independent Publications Limited at Media Printers, 446/H, Tejgaon I/A, Dhaka-1215.
Editorial, News & Commercial Offices : Beximco Media Complex, 149-150 Tejgaon I/A, Dhaka-1208, Bangladesh. GPO Box No. 934, Dhaka-1000.

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