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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: 73
June 21 , 2008

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Why Bangladesh needs refugee law

Udatta Bikash

Bangladesh was born experiencing refugeehood. During our liberation war in 1971, an estimated 10 million people (one out of every seven of that time population) took refuge in neighbouring India. Bangladesh has been hosting thousands of Rohingya, a Muslim ethnic minority group from the northern Rakhine state of Myanmar as refugees for last 17 years.

Following the latest persecution generated by the military ruler in Myanmar during 1991-92, thousands of Rohingyas took refuge in neighbouring Bangladesh and other countries. About 258,000 Rohingyas were registered by the Government of Bangladesh and granted refugee status through an executive order.

In addition to that, thousands of Rohingyas continue to arrive here and mix with local population over the years. Some estimates suggest that there are now about 300,000 nationals of Myanmar (mostly Rohingyas) outside the official camps who are 'illegally' staying in the Cox's Bazaar, Bandarban and Chittagong districts. A section of them is active in all sorts of illegal activities. Apart from that an estimated 300,000 Rohingyas are reportedly now in Saudi Arabia and other Middle Eastern counties holding Bangladeshi passports.

Bangladesh has been hosting refugees for a long time, however it is not a State party to the UN Convention Relating to the Status of Refugees 1951 or its Protocol of 1967 (However, Bangladesh is member to the Executive Committee of UNHCR- EXCOM). There is also no domestic legal framework to deal with the issue of asylum and refugees.

Although there are few provisions in the Constitution, which could be translated for the protection of refugees, there is a lack of common understanding on those.

In this backdrop, there is a point for Bangladesh for accession to the UN Convention Relating to the Status of Refugees 1951 (the Convention hereafter) and/or adoption of a normative legal framework. Let us examine both the propositions.

The Refugee Convention was adopted at a special United Nations conference on 28 July 1951. The Convention is the basic instrument of Refugee Law that defines a refugee, and sets out the rights of them and the responsibilities of states that grant asylum. The Convention also sets out which people do not qualify as refugees, such as war criminals or having involved on serious non-political crimes among others.

Protection of refugees forms the core of all Human Rights Law and Humanitarian Law. However, since its inception there have been many objections to the provisions of the Convention. It is said that the Convention mandates protection for those whose civil and political rights are violated. However, it does not protect persons whose socio-economic rights are at risk.

For example, the Convention is unable to cover the need of the Internally Displaced Persons (IDP) and the latest consequences of the global warming, the climate refugees.

The Convention is considered by experts like Dr. B. S. Chimni, a Professor of Jawharlal Nehru University in New Delhi as 'Euro-centric' and insensitive towards the internecine racial, ethnic and religious conflicts in the third world, which has resulted in the creation of refugees in large numbers.

Apart from that, the Convention seems dated and needs for further revisions due to increased complexities in the process of refugee generation, protection and due to advance in the field of refugee studies.

The Convention has been the point of contention for the developed and developing countries. While developed countries are bidding for a rights-based approach; developing countries on the other hand have been voicing their incomprehension as to why they would be expected to abide by the standards that the North no longer seems to accept. It is likely that now the Northern countries assume only a fraction of the responsibilities for refugees.

Experts like Mr. Patrick Hoenig of Jamia Millia Islamia in New Delhi finds four dilemmas in the Convention with regard to refugee: definition, material assistance, shared responsibilities, and unraveling consensus in observing standards of international law.

Given the post-9/11 scenario, most of the developed countries tighten their borders. By the end of 2004, only two out of top ten receiving countries were developed ones, according to a report of Calcatta Research Group who runs an internationally reputed course on Forced Migration. Developed countries have already developed and implemented the concept of 'third country protection' or 'offshore asylum system'. These types of initiatives are contradictory to the sprit of the Convention.

Even senior officials of the UNHCR (United Nations High Commissioner for Refugees) openly support modifications in the Convention. “… the Convention has to be looked into from different angles/perspectives considering the present scenario,” says Ms. Carol Batchelor, Chief of Mission of UNHCR in India (former Head of agency's Stateless Unit in Geneva) in an international workshop on Forced Migration in Kolkaka, India last year (The writer was one of the participants of the workshop).

In this scenario, none of the South Asian states is a signatory to the Refugee Convention, few citing 'certain biases in the provisions of the Convention.'

Some scholars including Dr. B. S. Chimni feel that before acceding to the 1951 Convention or 1967 Protocol, South Asian states should go ahead for adoption of a rights-based national legal framework to deal with asylum and refugee issues.

Enacting a comprehensive national legislation
From the above discussion, it is clear that given the drawbacks in the Convention, it is very unlikely that South Asian countries including Bangladesh will sign the instrument in near future.

Therefore, adoption of national legislation will be a more viable option for the countries including Bangladesh.

The benefits of national legislation are manifold. These include: dissolution of adoption of adhoc measures; permanent mechanisms for determination and treatment of refugees; ensuring judicious, fair and accountable procedures; enhancement of administrative control of the state; achieving concerted search for durable solution; co-ordination among concerned agencies; reducing frictions and conflicts among states.

Like other South Asian countries, Bangladesh has a tradition of hosting a large number of refugees for a long period. Here, refugees are subjected to same laws as for foreigners. These hardly consider protection need of an individual, especially in case of women and children. Again, due to lack of any explicit legal regime, asylum seekers and refugees are dealt under adhoc administrative arrangements, which by their very nature could be arbitrary and discriminatory, and do not accord any right to the refugees.

On the other hand, in the absence of a legal framework and access to asylum procedure in Bangladesh, newly arrived Rohingyas are forced to stay illegally here and be prone to various vulnerabilities including engagement in illegal activities and even in terrorism.

Over the time, the Rohingya refugees have a significant impacts on the economic, social, cultural, environmental, and law and order situations in Bangladesh. At the latest, it has added to the security concern. It is reported that a section of the Rohingyas have link with domestic terrorist groups like JMB and guerilla group operative in Myanmar-India-Bangladesh borders who receive funds from abroad.

Therefore, the Government should be serious on the matter. It is a high time that Government of Bangladesh adopts a comprehensive policy on Rohingya refugee issues with a view to resolve the problem through bilateral and multi-lateral means. For this, pro-active diplomacy is required. A rights-based approach as to domestic legislation is to give “…weight within a framework that recognises the distinctive essence of humanitarian problems and gives legal recognition to the fact that every person, alien or national, is of equal moral worth, and worthy of treatment that does not violate his her dignity,” as Dr. B. S. Chimni rightly points out.

The law should have provisions, among others, on the definition of refugees, asylum procedure, rights and obligation, status of mixed-mirages, cancellation and cessation processor of refugee status etc. The 'Model Refugee Law' drafted by the Eminent Persons' Group (EPG) in 1997 could be a benchmark for further movement in this regard.

The writer is freelance researcher and specialises on legal and human rights issues.


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