Marriage ban on Rohingyas

LAST week, the national media reported the Bangladesh government's decision to ban marriage between Bangladesh nationals and Myanmar's Rohingya refugees. The news became an item of interest in the international media. Several of those reports quoted a spokesperson of the Ministry of Law saying that “the Inspector General of Registration (of Marriages) … issued an order prohibiting kazis (marriage registrars) from recording any marriage between Myanmar refugees and Bangladeshi citizens.” The spokesperson was further quoted as saying that the government's decision came amid growing incidence of marriage between Bangladeshis and Rohingyas, the Muslim minority in Myanmar's Buddhist-majority Rakhine State, as they use the marriage certificate for citizenship and availing Bangladeshi passports.
The law ministry's circular was issued on the day following the law minister's directive to the deputy commissioners to take action against marriage registrars responsible for recording marriages of Rohingya refugees with locals. “We have ordered marriage registrars not to officiate any union between Bangladeshi nationals and Rohingyas and also not to enlist marriage between Rohingyas themselves,” the minister of law told members of the media. In explaining his position he stated that “marriage registration of Rohingyas is not legal,” further adding that even if the marriage of a Rohingya was registered in Bangladesh, it would have no legal validity.
An official of the Ministry of Foreign Affairs had earlier said: “Hundreds of Rohingyas, who actually are Myanmar nationals, are now going to middle eastern and other countries with Bangladeshi passports to avail jobs. We frequently face difficult situations for their acts abroad.” In all probability, this was another reason that provoked the ban.
Observers are not surprised that the Rohingya community in Bangladesh has once again been subjected to a stringent administrative measure. However, the matter in question has given rise to doubt if enough thought had been given to the matter before this order was issued as it effectively curtails universally recognised fundamental right to marry and have a family.
Let us examine the intent of the government's decision. Firstly, it acknowledges that until the new measure was put in place there was a degree of tolerance of the practice of Rohingyas marrying Bangladeshis and within their own community. Secondly, the recent decision not only banned registration of marriage between Rohingyas and Bangladeshis, it also made it illegal for the Rohingyas to marry each other. Thirdly, the new rule was triggered by the consideration that some Rohingyas were using marriage certificate to claim Bangladeshi citizenship and passports. Fourthly, it was given retrospective effect, meaning marriages so far registered stand void.
Analysts and refugee and rights activists were taken by surprise by this harsh measure. A number of questions beg answers. Firstly, has the government taken into consideration what impact the retroactive nature of the edict will have on the couples that are already married; and more so, on their offspring? Secondly, whether it is prudent to expect that a generation of Rohingyas would remain unmarried and not have families when a major part of their life has been spent in a protracted refugee condition that has so far spanned more than two decades for many? Thirdly, what ramifications would this policy have on the Rohingyas, if and when they eventually return to Myanmar? Would not the absence of marriage documents make them face another round of difficulties with the Myanmarese authorities for settling divorce, inheritance and custody matters as well as to put their children to schools and securing work?
Fourthly, a no less important question in this regard is, if the existing laws in Bangladesh allow foreign nationals to acquire Bangladeshi citizenship through their spouses then under what power do the authorities want to make an exception to that law? Would not that tantamount to discrimination and breaching of the national law by the ministry of the law? Finally, if the Rohingyas' alleged acts of acquiring of citizenship and passport are illegal under the existing law of the land, then should not the officials issuing such certificates of citizenship and passports be taken to task rather than clamping a blanket ban on marriages of the Rohingyas? Would not the latter be a case of throwing the baby with the bath water? The authorities perhaps are well aware that many Bangladeshis in irregular status in different parts of the world also marry nationals of those countries. Such marriages receive sanction of the law as international human rights laws oblige those countries to do so. Let us now see what international human rights regime holds in this regard.
Article 16 (1) of the Universal Declaration of Human Rights (UDHR) states: “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family.” Sub-section 3 of Article 16 affirms that “the family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”
It may be noted that Article 2 of the UDHR categorically states that “everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind” including “national origin” and “birth or other status.” Furthermore, “no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs …”
In the same spirit, Article 23 (2) of International Covenant on Civil and Political Rights (ICCPR) states: “The right of men and women of marriageable age to marry and to found a family shall be recognised.” In line with UDHR, Article 26 of this Covenant emphatically states that “the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination, on any ground” including “national or social origin” and “birth or other status.”
Article 5 of International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) also obliges States Parties “to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction … notably in the enjoyment of the … rights” that include “(iv) the right to marriage and choice of spouse.” It may be noted that Article 1 (2) of ICERD states: “This Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens.”
It may therefore be argued that as a State Party to the above international treaties Bangladesh has a legal obligation to uphold the Rohingyas' right to marriage and found family. Under existing provisions of national law, if such marriage gives the right to the concerned individuals to acquire citizenship and passports then those should be duly respected. If not, then those involved in abusing the system, including the issuing authority, be made accountable for their transgression. Misdemeanors of a few individuals should not be ground for denying registration of marriage to Rohingyas.
The law minister justified the decision on ground of compliance “with the official marriage registration system.” He stated that the “marriage of illegal immigrants including Rohingyas doesn't fall in that jurisdiction.” In this context one, would argue that if the existing national law such as the Marriage Registration Act of 1974 is not compatible with Bangladesh's international obligation then Bangladesh is duty-bound to amend or nullify that law. It is hoped that the Ministry of Law will reconsider its position and rescind the flawed decree. Failure to do so will only erode Bangladesh's image as a law-abiding nation that is respectful of international human rights principles.

The writer teaches International Relations and coordinates the Refugee and Migratory Movements Research Unit of the University of Dhaka. He is President of Odhikar.