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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 23
June 9, 2007

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Human Rights analysis

Asylum claim of A K M Mohiuddin Ahmed and Refugee law in Canada

Dr. Uttam Kumar Das

A K M Mohiuddin Ahmed, a convicted murderer of Bangabandhu Sheikh Mujibur Rahman and his family members is now an issue of talks in the country and beyond. The recent movements surrounding him are also concerns in the area of human rights, rule of law and judicial processes.

The attempted deportation of Mr. Ahmed from the USA has been stopped for time being following a private bill moved in the US House Judiciary Committee by a Democrat Congressman from Washington State, Jim McDermott. On Mr. Ahmed's behalf, an asylum application has also reportedly been submitted to the authority concerned of the Government of Canada and which is now pending (as of available information until 06 June 2007). In this backdrop, it is an issue of public interest what is the regime of asylum and international protection of refugees, and more what is the standard of this in Canada.

At the outset, let us look into the international laws on asylum and protection of refugees and whom is it for.

The basis of international legal regime for asylum and protection of refugees are the Universal Declaration of Human Rights (Article 14), UN Convention on the Status of Refugees 1951 (hereafter, the 1951 Convention) and its Protocol of 1967, and other regional and international human rights instruments.

The State could have its own legislation to deal with the issue of asylum and refugee along side being a party to the 1951 Convention and vice versa. In most of the cases, the States party to the 1951 Convention enacted it's own legislation following the spirit of the international instrument. So, far 146 State are parties to the 1951 Convention or its Protocol. (Bangladesh is not a party to either of these).

In case of Canada, it is a party to the 1951 Convention and its Protocol of 1967. In addition, it has a domestic legislation titled The Immigration and Refugee Protection Act (2001, c. 27). The Act received Royal Assent on 01 November 2001 and came into force on 28 June 2002 (source: www.laws.justice.gc.ca).

The Act provides the foundation for the Immigration and Refugee Board (IRB) which is in-charge of asylum and refugee issues. The Board is empowered to hear and decide cases on immigration and refugee matters.

The 2001 Act sets out the core principles and concepts that govern Canada's immigration and refugee protection programmes. These include provisions relating to refugees, sponsorships and removals, detention reviews and admissibility hearings, and the jurisdiction and powers of tribunals.

There are also other relevant legislations in Canada named Immigration and Refugee Protection Regulations. These deal with temporary foreign workers, students, the examination of persons seeking entry, the permanent resident card, residency obligations, the family class, the selection of skilled workers and business immigrants, refugees, humanitarian and compassionate considerations, inadmissibility, detention and release, pre-removal risk assessments and other enforcement-related matters.

The Regulations were registered on 11 June 2002 and the official versions were published on the Canada Gazette web site on 14 June 2002. It came into force on 28 June 2002. There was an amendment to the Regulation in 2004. There are Refugee Protection Division Rules and Federal Court Immigration and Refugee Protection Rules 1993 (amended in 2005).

The Government of Canada, e.g. Immigration and Refugee Board (IRB) in determining status of a refugee does follow the definition of the same provided in the 1951 Convention. According to Section 96 of the Immigration and Refugee Protection Act: “A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion- (a) is outside each of the countries of nationality and is unable or, by reason of that fear, unwilling to avail him/herself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of his/her former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.”

However, if an individual is involved in the following activity he (she as well) would not be eligible for refugee status in Canada: (i) If there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations (Schedule of the Immigration and Refugee Protection Act 2001. However, this provision is again taken from Article 1(F) of the 1951 Convention).

The Canadian Immigration and Refugee Board consists of the Refugee Protection Division, the Refugee Appeal Division, the Immigration Division and the Immigration Appeal Division. The Board is composed of a Chairperson and other members are required to ensure the proper functioning of the Board.

So, the question of international protection arises when an individual is in lack of protection from his/her concerned State for the reasons mentioned earlier. However, the individual has to be fleeing from persecution (e.g. a systematic and sustained violations of human rights on the grounds of race, religion, nationality, membership of a special group or political opinion), but not from prosecution (e.g. process of law for having been involved in a crime).

In case of Mr. Ahmed, he has been convicted on murder charges and been fugitive for a long time. He has been convicted by a court of law in Bangladesh following due processes. He could have been gone to the higher judiciary against the decision of the trial court. But he had been absconding (having patronisation from the then ruling party and shelter abroad). So, while he is applying for asylum or refugee status now, it is likely that there is a lack of well-founded fear of persecution for him, which is a pre-requisite to be considered for refugee status. Mr. Ahmed has apparently been fleeing from prosecution.

With regard to refugee, the objectives of the Canadian Immigration and Refugee Protection Act 2001, among others, are to recognise that the refugee programme is in the first instance saving lives and offering protection to the displaced and persecuted and also to grant, as a fundamental expression of Canada's humanitarian ideals, fair consideration to those who come to Canada claiming persecution. The Act is to offer safe haven to persons with a well-founded fear of persecution based on race, religion, nationality, political opinion or membership in a particular social group, as well as those at risk of torture or cruel and unusual treatment or punishment in the country of origin. Another important objective of the Act is to promote international justice and security by denying access to Canadian territory to persons, including refugee claimants, who are security risks or serious criminals.

Again the Act aims to enhance the domestic and international interests of Canada and facilitate cooperation between the Government of Canada, foreign states, international organisations and non-governmental organisations and comply with international human rights instruments to which Canada is signatory.

But in Mr. Ahmed's case, the 9th Circuit Court of Appeals in the USA observes that: "Ahmed failed to prove by a preponderance of the evidence that his in absentia murder trial and conviction in Bangladesh was fundamentally unfair and, thus, deprived him of due process of law. Therefore, the IJ properly relied on the conviction." (The Daily Star, 05 June 2007). So, commentator like Mashuqur Rahman opined that Mr. Ahmed has failed to convince the US court that his trial was unfair in Bangladesh.

Again the US Court observes: "Ahmed is ineligible for asylum and withholding of removal for two reasons:

* Because he engaged in terrorist activity,

* Because he assisted or otherwise participated in the persecution of others on account of their political opinion. Even his own account of his actions established that he assisted or otherwise participated in the persecution of persons on account of their political opinion." (The Daily Star, 05 June 2007).

So, now it is a point to see how the Canadian authority would/could make a balance between the underlined principles provided in the Immigration and Refugee Protection Act 2001 (which is consistent with the international legal regime for refugees) and the asylum claim of a convicted murderer, Mr. Ahmed.


The writer, an Advocate in the High Court Division, Supreme Court of Bangladesh, is a researcher and specializes on human rights and refugee issues.


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