The recent outbreak of the novel coronavirus (Covid-19) has halted daily life cycles around the world. While the deadly virus is killing thousands worldwide every day, the World Health Organization (WHO) has declared Covid-19 as pandemic and the virus has hit Bangladesh as well.
There is neither any vaccine or cure of the virus and the extreme contagious nature and rapidness of the virus by human contact has made physical distancing between humans the most important preventive measure. Despite the fact that Bangladesh is a densely populated country and Dhaka is one of the most densely populated cosmopolitan cities in the world with inadequate medical facilities, in the first few weeks of detection of the virus in Bangladesh, there were no strict government measures in place except closure of educational institutions.
No voluntary practices of social distancing was seen among the general public specially the non-resident Bangladeshis returning from virus infected areas. In the light of increasing number of infections and deaths everyday and the recommendation by the World Health Organization (WHO) for partial or complete lockdown of Bangladesh, the government declared ‘General/Public Holiday’ for 10 days starting from March 26 to April 4 with some guidelines to be strictly followed by all the citizens and residents in an attempt to minimize the spread of Covid-19.
Some of the important government orders/guidelines include:
- Generally all private and government offices will remain closed for 10 days except pharmacies, hospitals, restaurants, shops of essential commodities such as fresh produce markets and grocery shops, industries, retail banks in limited capacity and other emergency services. The holiday has been declared with the sole objective of social distancing to prevent spreading of the virus.
- Citizens and residents are requested to stay in their residences during the 10-days holiday and to avoid going out in public places except for urgent tasks such as obtaining ready to go meals, groceries, medicines and for taking medical treatment by wearing protective equipment like masks and gloves.
- All persons returning from foreign countries and the persons in contact with them must maintain strict quarantine for 14 days.
- Public transport will operate limitedly. People are encouraged to avoid public transport and use them only on emergency with adequate protection by wearing masks and gloves.
- All social/political/religious assemblies/gatherings are banned.
It is absolutely necessary for compliance of the government orders/guidelines to achieve the goal of preventing spread of the virus. However, three days into the holiday, hundreds of videos surfaced on social media showing people taking the opportunity to make trips to their home towns/villages, creating complexities and confusions about the interpretation of the government orders, the role of the civil administration and law enforcement agencies and the rights and duties of the public.
Enforcement by civil administration, police, army and other law enforcement agencies
Following the frequent violations of the quarantine orders from the government by the non-resident Bangladeshis returning from infected foreign countries and the people in close contact with them, the executive magistrates around the country have been operating mobile courts under Mobile Courts Act, 2009 and have been imposing fines on the violators under section-269 of The Penal Code, 1860 which provides that it is an offence to unlawfully or negligently act in a manner that is likely to spread infection of any disease that is dangerous to life.
The punishment of an offence under section-269 is imprisonment of six months and/or fin. Since the fine amount is not specified, the amount can be any amount which is not extreme or unreasonable as per Section 63 of the Penal Code, 1860.
Alternatively, the mobile courts can also impose punishments of maximum of 6 months imprisonment and/or one thousand taka fine under section-188 of The Penal Code, 1860 for disobedience of government orders that may endanger human health or life. It must be noted that any person aggrieved by the penalty awarded by the mobile courts can prefer an appeal before the district magistrate having local jurisdiction.
A person who violates the order of the government to prevent spread of contagious disease or who spreads or helps to spread a contagious disease or fails to inform of the contraction of the disease or gives false information about a contagious disease can be prosecuted under various provisions of Shonkramok Roge (Protirodh, Niontron O Nirmul) Ain, 2018. . Since the mobile courts do not have the power to enforce the 2018 law, the government chooses to prosecute under the penal code through mobile courts to immediately address the violations and avoid the lengthy criminal justice process.
The police and other law enforcement agencies are responsible to ensure that the public are abiding by the law and government orders/guidelines. The current pandemic also falls under the definition of “disaster” under Disaster Management Act, 2012 and as a result the Armed Forces have also been deployed around the country to act in aid of the civil administration to deal with the current disaster situation. All the law enforcement agencies have to function strictly in accordance with law.
Unfortunately,pictures have surfaced recently which show that an Executive Magistrate is making elderly citizens stand holding their ears as punishment for not complying with the government order of wearing masks in public places. In the pictures the Magistrate is also seen taking pictures of those old persons holding ears. Many videos are also showing that the police and army are using sticks to beat the citizens and making them stand by holding their ears for not staying back home or wearing masks.
All the government servants are regulated by law and are not allowed to do such things under any circumstances. Punishments such as beating with sticks and standing and holding ears are totally illegal and outside the ambit of the legal punishments prescribed in The Penal Code, 1860 because as per section-53 of Code the available punishments are death, life imprisonment, simple imprisonment, imprisonment with hard labour, forfeiture of property and fine. Nirjaton Ebong Hefazote Mrittu (Nibaron) Ain, 2013 makes such actions of physical assault by beating with sticks and social shaming by magistrates and police, criminal offences punishable with imprisonment and fine. The concerned magistrates and police officers have also violated the government servant conduct rules and have grossly violated the fundamental rights of citizens as guaranteed under Article 31 and Article 35 of the Constitution.
The Police Regulations of Bangladesh, 1943 forbids rudeness, harshness and brutality and obliges the higher ranked police officers to ensure that their subordinates practice civility, forbearance and courtesy to the public while performing their duties.
While social shaming, rudeness, harshness and brutality by the police is an age old tactic that may achieve deterrent effect on the public discouraging them to violate law, such actions destroy the respect, confidence and goodwill of the police that is required to achieve cooperation of the general public.
Can the police order lockdown and quarantine?
In addition to the declaration of public holiday with orders/guidelines restricting movement, the government is seen to order new quarantine and isolation buildings, areas and zones around the country and put some areas under formal lockdown. In this regard, many complaints have been reported that the local police have been randomly putting buildings under quarantine or complete lockdown when occupants are showing symptoms of being infected. It must be made clear that the law does not empower the police to take decisions of quarantine or lockdown.
Shonkramok Roge (Protirodh, Niontron O Nirmul) Ain, 2018 empowers the Director General of Health Services (DGHS) or any other officer empowered by the DGHS (with prior permission from government) to declare an area/building/vehicle to be infected by a contagious disease, order mandatory isolation/quarantine and limit access or impose a complete lockdown therein.
Besides, the same authority in aide of the civil surgeon has the power to take all steps necessary to disinfect/destroy the infected area/building/vehicle. Thus, the police or other law enforcement agencies have no power whatsoever to order quarantine/isolation or lockdown. The police and law enforcers have the duty to provide information to the relevant government authority and assist in executing any order passed by the government in due process of law.
We habitually compare ourselves with foreign countries, thus we must compare the current situation with countries like Singapore which imposes hefty fine of upto $10,000 and/or six months’ imprisonment and countries like South Korea which is going as far as prosecuting the quarantine violators for murder and other serious criminal offences. Time has come to ask ourselves that when the citizens of foreign countries are abiding by the rules of quarantine, are we performing our solemn duty as humans and citizens to ensure survival of humanity?
Amongst the negative videos showing social shaming by magistrates and police brutality, it is encouraging to observe that videos and photos have also surfaced showing magistrates, police and army personnels are taking life risks to educate people about the virus and encourage them to maintain quarantine and perform all tasks required to combat this virus and ensure everyone’s safety.
It seems that the confusion among the public and the government officials has been the outcome of misinterpreting the guidelines and lack of understanding of the applicable laws. The higher authorities of the government departments must continuously educate and monitor the government servants working at the field for refraining from making such mistakes that are questioning their efforts to serve the nation in these times of crisis.
Barrister Mahin M. Rahman is a Supreme Court Advocate and the head of the firm and Advocate TanjimRafeed is an associate at GUARDIAN CHAMBERS
