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THE ‘REAL’ SITUATION OF REFUGEE IN BANGLADESH

1.1 Introduction
At present, most of the countries in the world have agreed to grant asylum to refugees. Granting
asylum means, offering protection in a safe country, to people who are in danger in the country
of their origin. The argument has been made that; Bangladesh should not ratify the 1951
convention. But this, however, has not, relieved it of its responsibilities to establish a humane
and rights based regime for dealing with asylum seekers and refugees. Bangladesh has a long
record of performing humanitarian obligations towards refugees (for instance Rohingya
refugees) residing in her territories and has always followed the principle of non-
refoulement, without having a national law or acceding to any international instruments.
1.2 Bangladesh Refugee Issues
Bangladesh has the familiarity to deal with this refugee issue both as a sending state as
well as a receiving state. In 1971, during the liberation war between Bangladesh (East
Pakistan) and Pakistan, where approximately 10 million people fled from Bangladesh and
to India as refugees. Biharis who considered themselves as “Stranded Pakistanis” were
stuck in Bangladesh. However, these Biharis could not be considered as Refugees because
they did not comply with the requirements provided under Article 1 of the 1951 convention
In 2003, in the case of Abid Khan and others v Govt. of Bangladesh and others (55 DLR),
a division bench of the High Court Division held that the ten Urdu-speaking petitioners, born
both before and after 1971, were Bangladeshi nationals pursuant to the Citizenship Act, 1951
and the Bangladesh Citizenship (Temporary Provisions) Order, 1972, and thereby directed
the Government to register them as voters.
The Court further stated, quoting from an earlier case of Mukhter Ahmed v Govt. of
Bangladesh and others (34 DLR) -“the mere fact that a person opts to migrate to another
country cannot takeaway his citizenship.” The effect of the 2003 decision was limited to the
ten petitioners. Ultimately, the Supreme Court of Bangladesh had to confirm that Biharis are
citizens of Bangladesh in 2008, in the landmark decision of Md. Sadaqat Khan and others v
Chief Election Commissioner (60 DLR), the High Court Division reaffirmed that all
members of the Urdu-speaking community were nationals of Bangladesh in accordance with
its laws and directed the Election Commission to enroll the petitioners and other Urdu-
speaking people who want to be enrolled in the electoral rolls and accordingly, give them
National Identity Card without any further delay.
1.3 Rohingya Refugee in Bangladesh at Present
Recently, the plights of the Muslim Rohingya refugees have caught the attention of the
world community. Suddenly hundreds of people from neighboring Myanmar State were
fleeing by boat through Naf River, which is the common coastal area between Bangladesh and
Myanmar. The first wave of Rohingya refugees fleeing from Arakan to the area of
Cox‟s Bazar occurred in 1784 when the Burmese King Bodawpaya invaded and annexed
Arakan to the then Kingdom of Ava in central Burma. Most notably, during 1991 and 1992,
more than 270,000 Rohingya refugees crossed the border from Burma into Bangladesh.

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THE ‘REAL’ SITUATION OF REFUGEE IN BANGLADESH

However, the most detestable part of it is their characteristic evil habit of bringing along with
them their experiences of horrible violence in the repulsive form of forced labour, rape,
executions and torture. There was no domestic law in Bangladesh to regulate the
administration of refugee affairs or to guarantee refugee rights. UNHCR‟s l e g a l
status in the country was based solely on a Memorandum of Understanding that was
concluded in 1993 and which was originally intended to remain valid for a ye a r ,
w i t h a second year’s extension if required. Initially Bangladeshi Government welcomed
the UNHCR, the Red Cross and various other international agencies to assist the refugees. 1
By then about 258,000 Rohingyas were registered by the government of Bangladesh and
granted refugee status through an executive order, however, without any proper legal
sanction. In addition to that, more thousands of Rohingyas arrived in Bangladesh and allowed
to freely mix with the local population over the years.2 By the end of September, 2017, UN,
Bangladesh and other entities were reporting that in addition to 200,000-300,000 Rohingya3
refugees already in Bangladesh after fleeing prior attacks in Myanma Now around 947,000
documented and undocumented Rohingya people are living in Cox‟s Bazaar, Bandarban
and its adjacent areas under the generosity of Bangladesh.4
1.4 Protection of Refugee in Bangladesh
The constitution is the supreme law of the land. The fundamental rights are enlisted in Part III
of the constitution with a view to ensuring equality before law. We have as many as 18
fundamental rights from which some are applicable to non –citizens also.
1.5 The Right to Protection of Law
The refugees have constitutional right to enjoy the protection of law in this country. Article 31
of the Constitution has conferred the right to them. Article 31 states, “To enjoy the protection
of the law, and to be treated in accordance with law, and only in accordance with law, is the
inalienable right of every citizen, wherever he may be, and of every other person for the time
being within Bangladesh, and in particular no action detrimental to the life, liberty, body,
reputation or property of any person shall be taken except in accordance with law.”5
1.6 Protection of Right to Life and Personal Liberty
Article 32 of the Constitution provides that no person shall be deprived of life or personal
liberty save in accordance with law. Under Convention on the Rights of the Child (1989) the
refugee child are protected.

1.7 Safeguards as to Arrest and Detention


Article 33 of the Constitution provides safeguards against arrest and detention for the
citizens and non-citizens alike. It enumerates that no person who is arrested shall be detained
in custody without being informed, as soon as possible, of the grounds for his arrest.

1Bina D'Costa, Rohingyas and the 'Right to Have Rights', The Daily Star, Forum, Volume 6
2 Udatta Bikash, Rohingya Refugees, The Daily Star, Sunday, March 2, 2008;
http://archive.thedailystar.net/newDesign/news-details.php?nid=25644.
3 "Rohingya refugees have 'absolutely nothing'; A perilous journey for Rohingya refugees," Sept. 28, 2017 BBC News,

retrieved September 29, 2017


4 Emdadul Haque, Humanitarian vs. Legal Deals : Human Rights Monitor Rohingya people, The Daily Star, Tuesday, July

2, 2013; http://www.thedailystar.net/beta2/news/humanitarian-vs-legal- deals/.[accessed 06 January 2014]


5 Art.31, The Constitution of Peoples Republic of Bangladesh

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THE ‘REAL’ SITUATION OF REFUGEE IN BANGLADESH

Moreover, his right to consult and be defended by a legal practitioner of his choice cannot be
denied. However, this right is not applicable to any person, who for the time being is an ‘enemy
alien’
1.8 Prohibition of Forced Labour
Article 34 of the Constitution can well be used to safeguard the rights of the refugees. It says
that any form of forced labour is prohibited and any contravention of this provision
shall be an offence, punishable in accordance with law.
1.9 Enforcement of the Fundamental Rights
For the enforcement of the above mentioned rights, any refugee, like a citizen of Bangladesh,
can move the Honorable High Court Division in accordance with the Article 102, of this
Constitution.
Moreover, The Constitution of Bangladesh has obliged the government to support oppressed
peoples’ struggle against racialism in all parts of the world.
2.1 Refugee Protection under Statutory Laws
The essence of Article 31 got reflected in the case, Abdul Latif Mirza v. Bangladesh. It was
declared by the Appellate Division of the Supreme Court of Bangladesh that Article 31
gives citizens a constitutional guarantee and that they will enjoy the protection of law and
should be treated in accordance with law and this will be their inalienable right.
A refugee is a person who has been pushed away from their home country and has sought
refuge elsewhere. So he is not entitled to the rights of a citizen. However, it is laid down in
Article 31, that no action can be taken which is detrimental to the life, liberty, and property of
any person including a refugee except in accordance with law.6
2.2 Legal Status of Refugees in Bangladesh
International instruments such as the 1951 Convention is binding upon the signatory states.
Declarations or resolutions such as the Cartagena Declaration express international consensus
but unfortunately, are not legally binding. Furthermore, there is no international police force to
enforce the laws. However, even when the states are not party to any convention, they follow
customary international law. For example, at present, Bangladesh is offering shelters to around
3 lakh 26 thousand registered refugees from Myanmar. They are not being pushed back and
the principle of non- refoulement is being honoured even though Bangladesh is not a party to
the Convention of refugee.
2.3 International Obligations on Bangladesh
Bangladesh like other South Asian countries, is neither a party to the UN convention relating
to the status of refugees 1951 nor its protocol of 1967.There are no national laws, which define
and regulate the status of refugees in the countries of South Asia.

6 Art.34.

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THE ‘REAL’ SITUATION OF REFUGEE IN BANGLADESH

Bangladesh has acceded to a number of international human rights treaties, whose provisions
indirectly promote the rights of refugees. However, in reality, the international human rights
are not enforceable in courts of law unless, specific provisions are incorporated into existing
municipal laws or given effect through separate legislations.7
2.4 Universal Declaration of Human Rights (UDHR) 1948
The UDHR is the first international document which recognizes, that everyone has the right to
seek and enjoy asylum from persecution8.It is pertinent to mention here that there are some
specific provisions in the UDHR which are applicable for every human being irrespective of
his or her location .It is clearly stated that:
a) “No one shall be subject to arbitrary arrest, detention or exile”9
c) “Everyone has the right to a nationality”10
d) “Everyone has the right to freedom of movement and residence within the borders of each
state .Every has the right to leave any country, including his own, and return to his country”11
2.5 Implementation of International Refugee Law in Bangladesh
Under municipal laws, refugees being considered as foreigners are governed by the provisions
of the Foreigners Act of 1946.12Besides this, there are some other laws dealing with the non-
nationals of Bangladesh. These are as follows:
1. Registration of Foreigners Act 1939 2. Passport Act 1920 3. Bangladesh Citizenship
(Temporary Provision) order 1972 4. Extradition Act 1974 5. Naturalization Act 1926 etc.
2.6 Conclusion
Even though Bangladesh is not a member of the 1951 Refugee Convention, yet Bangladesh
has quite often widely opened its arms to welcome theses refugees only on humanitarian
ground, and no more no less. But the reality of the scenario is that Bangladesh still has not the
luxury to afford these refugees the political neither the economic comfort of accommodation
as a political asylum. In the absence of any strict domestic law, to save its image in the
international arena, Bangladesh is struggling very hard indeed to overcome this refugee issue.
The vision of this write- up is to highlight the problems of Rohingya refugees and also to
recommend the framing of a strict domestic law to specifically handle this situation.

7 Uttam Kumar Das, “Refugee and Relevant Laws in Bangladesh”,


8 Supra note 1
9 Art 9
10 Art 15
11 Art 12
12
section 3 and 4 of the Foreigner Act 1946

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References

1. Ahamed, Imtiaz. The Plight of the Stateless Rohingyas, Dhaka: The University Press Ltd,
2010.
2. Akhtaruzaman, Md. Legal Protection of Refugees under Bangladesh Law, Dhaka, 2006.
3. D'Costa, Bina. Rohingyas and the 'Right to Have Rights', The Daily Star, Forum, Volume 6
4. Goodwin-Gill, Guy S., Convention Relating to the Status of Refugees and Protocol Relating
to the Status of Refugees:
5. Hamid and Emma Crichton, The Rohingya Crisis of June 2012
6. Haque, Emdadul. Humanitarian vs. Legal Deals: Human Rights Monitor Rohingya people,
7. Hossain, Md Zakir. Journey towards Solution of Rohingya Refugee Crisis. Dhaka
University,2012.
8. Huda, Mirza Sadaqat. The Rohingya Refugee Crisis of 2012
9. Constructive Regional & International Engagement, South Asian Journal, Issue 7 – January
2013.
10. Islam, Md Zahirul. Rohingya Refugee Problem: A Burden on Bangladesh, The Daily Sun,
Dhaka, Monday 18 June 2012;

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