[IDM202]

American International University Bangladesh

Intra Department Moot Court Competition

Department of Law

People's Care NGO

(Applicant)

The Republic of Riverland

(Respondent)

Memorial for Respondents

[Word Count 3057]

1
 TABLE OF CONTENTS

LIST OF ABBREVIATIONS……………………………………………………...……Page 3

LIST OF AUTHORITIES……………………………………………………………….Page 4

STATEMENT OF RELEVANT FACTS………………………………………..………Page 5

QUESTION PRESENTED……………………………………………………………...Page 8

SUMMARY OF ARGUMENTS………………………………………………………..Page 9

ARGUMENTS…………………………………………………………………………Page 12

1. The Court cannot exercise its jurisdiction over the issue in view of s. 6 of the Essential

Commodities (Vital Drugs) Act, 2015………………………………………….Page 12

2. The Essential Commodities (Vital Drugs) Act, 2015 is not violative of the

Constitution……………………………………………………………………..Page 14

3. Vital Drugs Rule, 2015 is not violative of the Constitution of the State as well as the

Essential Commodities (Vital Drugs) Act, 2015……………………………….Page 15

4. The impugned legislation is not violative of International obligations of

Reiverland………………………………………………………………………Page 16

PRAYER FOR RELIEF………………………………………………………………..Page 18

2
 LIST OF ABBREVIATIONS

AD Appellate Division

ADC Appellate Division Cases

AIR All India Report

BLC Bangladesh Law Chronicles Times

CLC The Civil Law Cases

HCD High Court Division

NBR National Board of Revenue

PLD The All Pakistan Legal Decision

SC Supreme Court

ICCPR International Covenant on Civil and Political Rights

v./Vs. Versus

3
 LIST OF AUTHORITIES

DECLARATIONS, TREATIES, AND CONVENTIONS

ICCPR (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171

ICESCR (adopted on 16 December 1966, came in force from 3 January 1976)

CASES

Hussain Muhammad Ershad Vs. Bangladesh and others, II ADC (2005) 371

Government of Bangladesh Vs. Zeenat Hossain 1 BLC (AD) 89;

State Vs. M. M. Rahmatullah;

Satwant Singh vs. D. Ramarathnam, Assistant Passport Officer, New Delhi and others, AIR
(1967) (SC) 1836;

Province of Sind v. Public at Large PLD 1988 (SC) 138.

4
 STATEMENT OF RELEVANT FACTS

Background of Reiverland

A. Reiverland is a small democratic country surrounded by few other countries and the

Bay of Moria, in the continent of Tortuga. Constitutionally secular country Reiverland,

gained its independence through a struggle against its neighboring State Erabor in 1973.

Since independence, the state has been fighting various social evils such as poverty,

illiteracy and corruption.

B. According to the constitution of Reiverland, the State owes certain responsibilities

towards its citizens including the protection of public health, decency and morality.

The Essential Commodities (Vital Drugs) Act, 2015 and The Vital Drugs Rules, 2015

C. Based on a survey on death rates in Reiverland, several news channels conducted talk

shows, interviews with prominent personalities and public opinion through online

voting which resulted in protests by several pressure groups and mass people

pressurizing the government to take necessary steps to protect and preserve the life and

health of people.

D. In 2015, the Parliament of Reiverland decided to make drugs as Essential Commodities

and enacted “the Essential Commodities (Vital Drugs) Act, 2015” with the objectives

to make vital drugs available at reasonably affordable price to all its citizens and to

protect the public health through effective measures. However, the Act delegated the

5
 power to the National Drug Authority to decide by rules what drugs are vital for this

purpose.

E. Also In 2015, in exercise of the powers conferred by “The Essential Commodities (Vital

Drugs) Act 2015”, The National Drug Authority made a delegated legislation namely

“The Vital Drugs Rules, 2015” The Rules providing the Vital Drugs shall be divided

into two separate categories: (a) Basic Vital Drugs, and (b) Special Vital Drugs.

F. Basic Vital Drugs includes drugs for all diseases other than those coming under Special

Type and the Special Vital drugs includes drugs for AIDS, H1N1, Tuberculosis

affecting spine, brain and skin and diseases affecting heart, brain and kidney. Further,

The Rules defined the term 'reasonably affordable price' as a price which is half the

market price of the medicine.

G. In addition, Both the generic and imported medicines shall be available at a reasonably

affordable price in Government Hospitals. However, in Private Hospitals, when the

generic medicines will be available at reasonably affordable price, the imported

medicines shall be available at their market price.

H. Nonetheless, drugs for sexually transmitted diseases or any disease caused due to

narcotics consumption shall not be available at reasonably affordable price neither in

Government Hospitals nor in Private Hospitals.

6
Government against the Writ Petition of People’s Care (NGO)

I. People's Care is a registered NGO working in the field of public health and welfare,

mainly to the lower class of society. People's Care took stand in response to a case of

an industrial worker who suffered from syphilis, claimed generic medicines at a

reasonably affordable price in a Government Hospital, when the authority refused to

provide him such drugs at reasonably affordable price as according to the law, for

syphilis is a sexually transmitted disease.

J. Then, People’s Care made a representation to the Government to provide subsidies for

vital drugs of special type or to make production of the same under the generic medicine

and to make available drugs for sexually transmitted diseases at reasonably affordable

price. Further, the NGO filled a Writ Petition to the Supreme Court of Reiverland

challenging the Constitutional validity of the Vital Drugs Rules, 2015.

K. The Government of Reiverland, in its reply has challenged the maintainability of the

Writ Petition on the grounds of the petitioners' “locus standi” and claimed that the

delegated legislation is constitutionally valid since the government is obliged to protect

the decency and morality of its citizens.

7
 QUESTIONS PRESENTED

1. Can the Court exercise its jurisdiction over the issue in view of s. 6 of the Essential
Commodities (Vital Drugs) Act, 2015?

2. Whether the Essential Commodities (Vital Drugs) Act, 2015 Act is violative of the
Constitution?

3. Whether the Vital Drugs Rules, 2015 is violative of the Constitution as well as the Essential
Commodities (Vital Drugs) Act, 2015?

4. Whether the impugned legislation is violative of any International obligations of

Reiverland?

8
 SUMMARY OF THE ARGUMENTS

The Court cannot exercise its jurisdiction over the issue in view of s. 6 of the Essential

Commodities (Vital Drugs) Act, 2015

A. When any law clearly specifies the jurisdiction of the courts within its act, restricting the

courts from exercise their jurisdiction in certain matters mentioned in the very act, they are

constitutionally empowered to do so. Based on this principle, In Reiverland, Section 6 of

the Essential Commodities (Vital Drugs) Act, 2015 restricted any court or tribunal to

question in any ground whatsoever related with this act.

B. Additionally, it is the duty of every citizen to observe the Constitution and the laws, to

maintain discipline and to perform public duties accordingly.

The Essential Commodities (Vital Drugs) Act, 2015 is consistent with the Constitution

C. It is the fundamental aim of the State to ensure to its citizens fundamental human rights,

equality before law and equality of opportunity. With a view to secure these principles, The

Essential Commodities (Vital Drugs) Act, 2015 of Reiverland, took effective measures to

ensure that the Vital Drugs available to all of its citizens and also to be regarded as Essential

Commodities.

D. It is also the fundamental responsibility of the state to ensure improvement of public health

and to protect the public morality. For example, The State can adopt effective measures to

prevent the consumption of alcoholic and other intoxicating drinks and drugs which are

injurious to health. The Essential Commodities (Vital Drugs) Act, 2015 suggested

9
 deferential treatment in respect of the price of the drugs for any diseases which are caused

by immoral acts or behavior or any illegal consumption of narcotics to protect public

morality and to improve public health.

Vital Drugs Rules, 2015 is consistent with the Constitution of the State as well as the

Essential Commodities (Vital Drugs) Act, 2015

E. It is the fundamental duty of the State to provide basic necessities of life, including food,

clothing, shelter, education and medical care to all its citizens. “Vital Drugs Rules, 2015”,

separated vital drugs into two different types- generic can be produces locally when

medicines of special vital type are needed to be imported from abroad. Prices thus

reasonably varies of particular type of drugs depending on its rarity.

F. Again, it is one of the primary duties of the State to improve the public health and raise the

level of nutrition of its citizens. On such condition, The Rules provided both the generic

and imported medicines to be available at a reasonably affordable price in Government

Hospitals. In addition, the State can take effective measures in prevention of consumption

of alcohol and other intoxicating drinks and drugs that are injurious to public health. With

the purpose to ensure maintainability of law and to put fear amongst those adopting

immoral means and breaking the law, The Rules made drugs for sexually transmitted

diseases or any disease caused due to narcotics consumption to not be available at

reasonably affordable price neither in Government Hospitals nor in Private Hospitals.

10
The impugned legislation is consistent with International obligations of Reiverland

G. Vital Drugs Rules, 2015 was created with the view to ensure protection of public morality,

improvement of public health along with providing every citizen with the right to an

adequate standard of living for himself and his family. Although, Limitations may be placed

on these rights only if compatible with the nature of these rights and solely for the purpose

of promoting the general welfare in a democratic society. Anyway, Vital Drugs Rules, 2015

has its immunity of this discussion based on the fact that, courts will not enforce Covenants

as Treaties and Conventions even if ratified by the State, as they are not part of the corpus

juris of the State unless those are incorporated in the municipal legislation.

11
 ARGUMENTS

1. The Court cannot exercise its jurisdiction over the issue in view of s. 6 of the Essential

Commodities (Vital Drugs) Act, 2015

A. As the Constitution and the other relevant Laws of Reiverland are exactly similar to the

Constitution and Laws of Bangladesh1, we shall try to look in all matters hereinafter in

the light of the Constitution of Bangladesh and other laws.

Firstly, every court of Bangladesh possesses jurisdiction over matters only to the extent

granted to it by the Constitution of Bangladesh or legislation of this country. The

Superior Court of Justice in Bangladesh is named as Supreme Court of Bangladesh

followed by a hierarchy of civil and criminal court at the district level.

Secondly, Public Interest Litigation (PIL) means a legal action initiated in a court of

law for the enforcement of public interest or general interest in which the public or class

of the community have pecuniary interest or some interest by which their legal rights

or liabilities are affected2.

Judiciary, being the sentinel of constitutional statutory rights of citizens has a special

role to play in the constitutional scheme. It can review legislation and administrative

actions or decisions on the anvil of constitutional law. For the enforcement of

fundamental rights, one has to move the Supreme Court or the High Court directly by

1
The Constitution of the People's Republic of Bangladesh (adopted on 4 November 1972, effective from 16
December 1972)
2
According to Black's Law Dictionary

12
 invoking Writ Jurisdiction of these courts. But the high cost and complicated procedure

involved in litigation, however, makes equal access to jurisdiction in mere slogan in

respect of millions of destitute and underprivileged masses stricken by poverty,

illiteracy and ignorance.

B. When any law clearly specifies the jurisdiction of the courts within its act, restricting

the courts from exercise their jurisdiction in certain matters mentioned in the very act,

they are constitutionally empowered to do so3. Based on this principle, In Reiverland,

Section 6 of the Essential Commodities (Vital Drugs) Act, 2015 restricted any court or

tribunal to question in any ground whatsoever related with this act.

C. Additionally, it is the duty of every citizen to observe the Constitution and the laws, to

maintain discipline and to perform public duties accordingly.4 The Essential

Commodities Act made the Vital Drugs as Essential Commodities Act with the object

of Making vital drugs available to the public at reasonably affordable price. The Act

also aims to protect the public health through effective measures. The citizens of the

country should follow the rules provided in this Act for it is their fundamental duty

towards the country.

3
Jurisdiction of Courts <http://www.judiciary.org.bd/en/judiciary/jurisdiction-of-the-court>; Also see
Jurisdiction Stripping concept of USA <https://en.m.wikipedia.org/wiki/Jurisdiction_stripping>.
4
Article 21 (1)

13
2. The Essential Commodities (Vital Drugs) Act, 2015 is consistent with the Constitution

D. It is the fundamental aim of the State to ensure to its citizens fundamental human rights5,

equality before law6 and equality of opportunity7. With a view to secure these

principles, The Essential Commodities (Vital Drugs) Act, 2015 of Reiverland, took

effective measures to ensure that the Vital Drugs available to all of its citizens and also

to be regarded as Essential Commodities.

E. It is also the fundamental responsibility of the state to ensure improvement of public

health and to protect the public morality8. For example, The State can adopt effective

measures to prevent the consumption of alcoholic and other intoxicating drinks and

drugs which are injurious to health.

The Essential Commodities (Vital Drugs) Act, 2015 suggested deferential treatment in

respect of the price of the drugs for any diseases which are caused by immoral acts or

behavior or any illegal consumption of narcotics to protect public morality and to

improve public health9.

5
Article 15
6
Article 27
7
Article 19
8
Article 18 (1)
9
Section 3 of The Essential Commodities (Vital Drugs) Act, 2015

14
3. Vital Drugs Rules, 2015 is consistent with the Constitution of the State as well as the

Essential Commodities (Vital Drugs) Act, 2015

A. It is the fundamental duty of the State to provide basic necessities of life, including

food, clothing, shelter, education and medical care to all its citizens10. “Vital Drugs

Rules, 2015”, separated vital drugs into two different types- generic can be produces

locally when medicines of special vital type are needed to be imported from abroad.

Prices thus reasonably varies of particular type of drugs depending on its rarity.

B. Again, it is one of the primary duties of the State to improve the public health and

raise the level of nutrition of its citizens11. On such condition, The Rules provided

both the generic and imported medicines to be available at a reasonably affordable

price in Government Hospitals.

In addition, the State can take effective measures in prevention of consumption of

alcohol and other intoxicating drinks and drugs that are injurious to public health as

per Article 18 of the constitution. With the purpose to ensure maintainability of law

and to put fear amongst those adopting immoral means and breaking the law, The

Rules made drugs for sexually transmitted diseases or any disease caused due to

narcotics consumption to not be available at reasonably affordable price neither in

Government Hospitals nor in Private Hospitals.

10
Article 15
11
Article 18

15
4. The impugned legislation is consistent with International obligations of Reiverland

D. International law12 is a system of treaties and agreements between nations that

governs how nations interact with other nations, citizens of other nations, and

businesses of other nations. International law typically falls into two different

categories. "Private international law" deals with controversies between private

entities, such as people or corporations, which have a significant relationship to

more than one nation. "Public international law" concerns the relationships

between nations. These include standards of international behavior, the laws of

the sea, economic law, diplomatic law, environmental law, human rights law,

and humanitarian law.

E. Reiverland has ratified the ICCPR and ICESCR. ICCPR stands for

“International Covenant on Civil and Political Rights”, And ICESCR stands for

“International Covenant on Economic, Social and Cultural Rights”. The

impugned legislation that is The Vital Drugs Rules, 2015 did not violate both

the ICCPR and ICESCR that Reiverland ratified.

F. States are obliged in international law to meet their human rights obligations to

people within state if the state has ratified a human right’s treaty. If it has ratified

a treaty, the state becomes a State party bound by the treaty. But according to

article 20-26 of ILC (International Law Commission) there are a number of

exceptions when an act that normally would be violation of international law,

12
Definition from FindLaw <https://hirealawyer.findlaw.com/choosing-the-right-lawyer/international-law.html>

16
 does not create responsibility of the state involved, such as cases of consent or

necessity.

As per the ILC, Necessity- if an act by a State (that may be considered illegal)

was the only way for a state to safeguard an essential interest against a grave

and imminent danger (and it does not damage another essential interest) – that

state does not violate its international responsibility.

G. Vital Drugs Rules, 2015 was created with the view to ensure protection of public

morality13, improvement of public health along with providing every citizen

with the right to an adequate standard of living for himself and his family14.

Although, Limitations may be placed on these rights only if compatible with the

nature of these rights and solely for the purpose of promoting the general

welfare in a democratic society.

Anyway, Vital Drugs Rules, 2015 has its immunity of this discussion based on

the fact that, courts will not enforce Covenants as Treaties and Conventions

even if ratified by the State, as they are not part of the corpus juris of the State

unless those are incorporated in the municipal legislation15.

13
Article 18 of the constitution
14
Article 11 of ICESCR

15
BNWLA v. Government of Bangladesh and others, 2001, 40 CLC (HCD); Also see Hussain Muhammad Ershad
Vs. Bangladesh and others, II ADC (2005) 371; Referred to Government of Bangladesh Vs. Zeenat Hossain 1
BLC (AD) 89; State Vs. M. M. Rahmatullah; Satwant Singh vs. D. Ramarathnam, Assistant Passport Officer, New
Delhi and others, AIR (1967) (SC) 1836; Province of Sind v. Public at Large PLD 1988 (SC) 138.

17
 PRAYER FOR RELIEF

The Respondent (The State) respectfully requests that the court adjudicate and declare:

1. Court has no such jurisdiction over the issue in view of The Essential Commodities

(Vital Drugs) Act 2015.

2. Essential commodities (vital drugs) act 2015 is not violative of the constitution.

3. Vital Drugs Rules 2015 is not violative of the constitution as well Essential

Commodities (Vital Drugs) Act 2015.

4. The impugned legislation is not violative of international obligations like ICCPR &

ICESCR of Riverland.

Respectfully Submitted 05 November, 2019

IDM202

Counsel for the Respondents

18