American International University Bangladesh

Second Inter Semester Mooting Competition

Department of Law

Fact
1. Reiverland is a small democratic republic in the continent of Tortuga, surrounded by few
countries and the Bay of Moria. Reiverland gained independence through a bloody struggle
against colonial neighbor Erebor in 1973. According to the constitution of Reiverland,
State owes certain responsibilities towards its citizens including the protection of public
health, decency and morality. Since independence, the state is fighting against poverty,
illiteracy, corruption and other social evils. Limited resources and huge population together
with the social vices create economic disparity among the citizens challenging the very
object of constitutional mandate of the state to ensure a society free from exploitation.

2. Reiverland is constitutionally a secular state, although it confers a particular religion

'Flavian' as the state religion of the country, since majority of the population of Reiverland
are the follower of that religion. The key features of the religion are that it prohibits the
consumption of alcohol, narcotics in any manner and the practice of extramarital sexual
relations.

3. 'Morning Speaks', is a popular daily newspaper of Reiverland. It is in maximum circulation

in the country and is well known for its neutrality. Recently, the newspaper has conducted
a survey to find out the death rate in Reiverland. The survey reports are as follows: "In
Reiverland, every year 8 persons die out of every 100. Out of these 8 persons, 5 die due to
lack of accessibility to proper medicines and all these 5 persons belong to middle and lower
classes of society. In Reiverland, rising price of medicines is making survival a struggle."

4. Based on this survey, several news channels conducted talk shows, interviews with
prominent personalities and public opinion through online voting. 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.

5. Looking into this vast spread agitation, the Parliament decided to make drugs as Essential
Commodities by enacting the Essential Commodities (Vital Drugs) Act, 2015. The Act
came into force on 16th July 2015. The object of this Act is to make vital drugs available
to the public at reasonably affordable price. The Act also aims to protect the public health
through effective measures. (The relevant Provisions of the Act are provided in Annexure-
A) However, the Act delegated the power to the National Drug Authority to decide by rules
what drugs are vital for this purpose.

6. On the night of 18th July, Border Guards of Reiverland seized a huge amount of narcotics
and pornographic materials from a small village, 'Shire' which shares border with Erebor.
A large convoy of smugglers was also captured from the outskirt, which included citizens
of both Reiverland and Erebor. Although there were continued reports of seizures of drugs
and narcotics coming from the different belts of Reiverland-Erebor border, this was the
largest capture in a long time.
7. In his weekly sermon, Mithrandir, one of the influential Flavian religious leaders of
Reiverland stated that, 'Since they couldn't suppress us anymore, they are poisoning our
youth through drugs and pornography. Govt. must take a strong initiative to uphold our
social and religious belief.' Following his sermon, many people hold silent vigils in
protesting of the continuous penetration of smuggled goods. At Rivendell, the 3rd largest
city of Reiverland, the protesters got involved into a violent clash with police which left
three people dead, and many wounded.

8. In response to the events, Mr. Truno Elrond, the Prime Minister of Reiverland requested
everyone to stay calm, and expressed that Govt. is strongly working to control the border
situation, and he assured the people that, 'Special Technical Measures' shall be taken to
prevent consumption of narcotics and other vile practices, and the spirit of Flavianism shall
be upheld. Mr. Truno Elrond was a member of the Elrond family of Reiverland, who own
two of the largest pharmaceutical companies of the country.

9. Following this statement of the Prime Minister, The National Drug Authority made a
delegated legislation namely The Vital Drugs Rules, 2015 in exercise of the powers
conferred by the Essential Commodities (Vital Drugs) Act 2015. The Rules provided that
the vital drugs shall be divided into two types: a) Basic Vital Drugs and b) Special Vital
drugs. The former includes drugs for all diseases other than those coming under Special
Type and the latter includes drugs for AIDS, H1N1, Tuberculosis affecting spine, brain
and skin and diseases affecting heart, brain and kidney.

10. The Rules further provided that vital drugs of Basic Type shall be produced 50% by
Generic medicine producers i.e. local producers and 50% shall be imported from abroad.
The generic and imported medicines shall be available at a reasonably affordable price in
Government Hospitals. However, the imported medicines shall be available at their market
price and generic medicines at reasonably affordable prices in Private Hospitals. But, 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.

11. Further, the Rules defined the term 'reasonably affordable price' as a price which is half the
market price of the medicine. The drugs coming under the second category viz. Vital Drugs
of Special Type are usually those medicines which are mainly imported from foreign
countries. The Government provided that the medicines coming under this category would
be available at market price and not at reasonably affordable price.
12. After the Annual Budget of 2015-16, prices of all essential commodities went high and so
also those of the medicines. The Government treasury showed a great financial setback
during the year as most of the money allocated in health sector was utilized in producing
generic medicines and making drugs available to public at reasonably affordable prices by
subsidizing. Further, in November 2015, H1N1 outbreak occurred throughout the country.
Many of the people diagnosed with H1N1 were from middle and lower classes of society.
But, since the medicines came under "Vital Drugs Special Types", they were available at
market price and were beyond the reach of public due to which several persons belonging
to these classes died.

13. Bahadur, an industrial worker is suffering from syphilis. As the generic medicines were
produced for the same, he claimed these medicines at a reasonably affordable price. But
the government hospital refused to provide him such drugs at reasonably affordable price,
as syphilis is a sexually transmitted disease. He approached People's Care (a registered
NGO working in the field of public health and welfare, particularly to those belonging to
lower strata) with his issue.

14. People's Care came across several persons who were suffering from venereal diseases to
whom medicines were not available at reasonably affordable price and most of these people
belonged to the lower section of society. In the newspaper 'Morning Speaks', they
published a series of report on 62 patients of sexually transmitted diseases, who were
directly suffered from the recent policy on medicine. 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. The government did not respond to any
of those representations in spite of constant reminders by the NGO.

15. Looking to this indifferent attitude of the Government towards the deaths caused by H1N1,
venereal and like diseases, People's Care filed a Writ Petition before the Reiverland
Supreme Court, challenging the Constitutional validity of the Vital Drugs Rules, 2015.

16. The Government in its reply has challenged the maintainability of the Writ Petition mainly
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.
 Points for consideration before the Hon'ble Court are:
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?
The Hon'ble Court has posted the case for hearing of both the parties.

Note:
1. The participants are permitted to raise additional issues.

2. The Constitution and the other relevant Laws of Reiverland are exactly similar to the
Constitution and Laws of Bangladesh.

3. Reiverland has ratified the ICCPR and ICESCR.

 Annexure- A
The Essential Commodities (Vital Drugs) Act, 2015 Act No. IV of 2015
Sec. 2 From the Commencement of this Act, the Government shall take effective measures to
ensure that the Vital Drugs as prescribed by Rules are available to all citizens and for this purpose
the Vital Drugs so prescribed shall be regarded as essential commodities.
Sec. 3 Subject to the provisions of this Act and any rules made thereunder, special and differential
treatment may be effected in respect of the price of the drugs for any diseases which are by nature
caused by immoral or indecent acts or behavior or any illegal consumption of narcotics.
Sec. 5 Any rules under this Act shall be made by the National Drug Authority and such Authority
shall make rules to any matters ancillary to the purpose of this Act.
Sec.6 No acts or measures taken under this Act or rules framed thereunder shall be called in
question in any court or tribunal on any ground whatsoever.