Reviewing the views
Rohingya refugees: Some legal issues
Mir Md. Amtazul Hoque
On 9 August 2008, the learned judges of Cox's Bazar judgeship, including the learned judicial magistrates, spearheaded by the learned District and Sessions Judge Mr. Nirmal Kanti Chowdhury visited the Kutupalong refugee camp at Ukhya, Cox's Bazar. Kutupalnog and Nayapara, two places situated at the south eastern end of the country, have the considerable concentration of Rohingya refugees in two cramped camps. Through this visit, the learned judges have gathered some unique experience. In the light of the visit I, in this write-up, would like to focus on the legal aspect of this Rohingya refugee problem in the perspective of our country. Relevantly, the history of this problem, the involvement of the UNHCR in these camps and several other aspects would also come up.
The emergence of the Rohingya refugee problem dates back to the era of European colonial rule in this part of the world. As we experienced in the then Indian sub-continent, the British has also successfully adopted and implemented the infamous “divide and rule policy” in Burma (Myanmar). The ruler British showed little respect for the ethnic and cultural diversities of the people of this area. In the indiscriminate pursuit of the said policy, the British premeditatedly ignored the historic origin of Rohingyas in Arakan State of Burma, and deliberately started identifying the Rohingyas as “Chittagonians”, taking fully the advantage of their striking lingual, cultural and religious proximity across the Naaf river with the Chittagonians in Bangladesh. This striking similarity in terms of language, culture and religion had differentiated the Rohingyas from the other ethnic Buddist group in Arakan, namely Rakhine (the Moghs). The Rakhine also added fuel to the dividing policy in furtherance of their petty interest of grabbing the Arakan State single-handedly Rohingyas became target of torture for both the British and the Moghs in possible and impossible ways. The lawlessness became so acute and widespread that the Rohingyas begun fleeing into the neighbouring countries, especially into the southern part of Bangladesh. The fleeing Rohingyas used to term Arakan state as “Mogher Mulluk” meaning a lawless country of the Moghs. The term “Mogher Mulluk” has long found a niche as an adage in our day-to-day language.
The said legacy of “divide and rule policy” seems to have successfully been carried by the military government in Burma. The Rohingya problem has reached, by now, the crescendo due to their propaganda, research manipulation by a fraction of Burma intelligentsia fulfilling the requirements of the vested interest quarters furthering conflict between the Rakhins and the Rohingyas. Making the situation worst, the government has declared the Rohingyas as non-citizens of Burma. With a view to exterminating the Rohingyas, they enacted the notorious “Burma Citizenship Law 1982” on 15 October 1982. Three categories of citizenship have been mentioned in the Law, such as:
1) Citizen (the ancestors of whom used to reside in Burma as far back as 1823, and this should be proven); 2) Associate citizen; 3) Naturalised citizen.
An individual has to have any form of citizenship for access to basic social, health and educational services. The vast majority of the Rohingya people face difficulty in falling in any of these categories mostly due to family situation and the difficulty in providing proof of eligibility. Consequently, the military government of Burma terms them as “foreign residents”.
Since 1989, the government has made it mandatory to apply for “new Scrutiny Cards”, a colour-coded card for ease of categorisation of citizenship status. In addition to the aforementioned three cards, the government issues “white” card (namely Foreign Registration Card, FRC) to the foreigners. These cards have overwhelming presence in almost every transaction in Burma. Immediately after the enactment and enforcement of the said law horrified Rohingyas began leaving Burma in a large scale. In the early 90's (1991-1992) the world saw the painful extermination of 2,50,000 Rohingyas with the excuse of they being “foreigners” in Burma. The saga of extermination has never ended. The influx of these Rohingyas into Bangladesh has piteously intensified her plight and has added an international dimension to her already existing innumerable national problems, over population and scarcity of land being two of them.
Here lies the confusion of Bangladesh in accepting the Rohingya refugees, for she has signed neither the UN Convention of 1951 relating to the Status of Refugees, nor the Protocol of 1967 of the Convention.
The 1951 United Nations Convention Relating to the Status of Refugees defines who are “refugee” and sets out, inter alia, which people do not qualify as refugees. The United Nations opened it for accession by the States on 28 July 1951. By now, 147 signatories have become parties to the either the Convention or both the Convention and its 1967 Protocol. Initially the Convention, popularly known as the Magna Carta of International Refugee Law, stipulated itself to protecting European refugees after World War II, but a 1967 Protocol removed the geographical and time limits, extending the Convention's scope. Article I of the Convention as amended by the 1967 Protocol defines a “refugee” as:
“Any person who:  owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his formal habitual residence, is unable or owing to such fear is unwilling to return to it…”
Not being a party to the 1951 Convention or its 1967 Protocol, Bangladesh feels reluctance to fit the Rohingyas in the definition of “refugee” and also to shoulder any duty or responsibility in compliance with the provisions of the Convention. Notwithstanding the fact, the refugees of early 90's received “prima facie” refugee status. An estimated 26,000 of such Rohingya refugees live in two separate and squalid camps at Kutupalong and Nayapara of Cox's Bazar. Besides these, an estimated 100,000 unregistered Rohingyas live in Bangladesh near the border with Myanmar. The registration of the said 26,000 refugees has rendered UNHCR (United Nations High Commission for Refugees) a scope to protect and assist them.
However, in 2003 UNHCR took a decision to phase out its support for the 20,000 refugees remaining in the camps and forwarded to Bangladesh Government a “self-sufficiency plan”, wherein UNHCR proposed to integrate the Rohingya refugee population with the local Bangladeshi community. On September 2004, Bangladeshi authority rejected the self-sufficiency plan. In 2005, UNHCR presented again a plan to Bangladesh Government that proposed temporary stay and freedom of movement of Rohingyas. In the meantime, the responsibilities of the camps have been handed over to the Government of Bangladesh.
Bangladesh has not enacted any law regarding asylum and refugee matters, even though, she has been suffering from two large scale refugee problems, namely Behari refugees and Rohingya refugees. The provisions of the 1946 Foreigners Act governs the activities of non-citizens in Bangladesh. Section 3 of the Act empowers the government to enact rules regarding the banning or controlling of entery, stay or exit of foreigners in Bangladesh. Section 4 has specifically spelt out that any foreigner can be interned in a limited space vide this Act.
The provisions of the 1946 Foreigners Act had been discussed during the visit in Kutupalong. Besides this, the Learned District and Sessions Judge of Cox's Bazar Mr. Nirmal Kanti Chowdhury had extended his support on behalf of the Cox's Bazar judgeship to aptly deal with the Rohingya refugee problem so far it touches the legal aspect. The Learned Chief Judicial Magistrate Mr. Mujibur Rahman had also reiterated the support. The Learned District and Sessions Judge had stressed on appointing a coordinator to deal with the legal matters of the Rohingya refugees. He had further opined that UNHCR could organise seminars, workshops etc. on regular basis regarding the legal aspect of the Rohingya refugee problem and there it could invite for participation the learned judges, learned advocates, police officials and other stakeholders of the society.
The matter of infamous “November killing” had also cropped up. On 18 November 2004, a brawl between the refugees of the Kutupalong camp and the camp authority turned into a clash at the end of which three refugees, including a minor, got killed in police action. The police also detained 42 refugees. The UNHCR officials requested the Learned District and Sessions Judge to ensure fair and impartial justice in the November killing case. He assured that Cox's Bazar judgeship would take every step possible on its part to that effect.
Nearly 17 years have elapsed, but the Rohingya refugee problem has failed to register any noticeable headway. Bangladesh cannot sit on her back for an uncertain period with this nagging problem days in and days out. Given the reality, the visit of the kind may have a far-reaching positive impact.
The writer is Senior Judicial Magistrate, Moheshkhali, Cox's Bazar.