ARTICLE 31 of the Constitution of Bangladesh categorically states that “To enjoy the protection of the law, and to be treated in accordance with law, and only in accordance with law …”, is not only the inalienable right of every citizen but also of “…of every other person for the time being within Bangladesh”. The Article further goes on to state that “no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with the law”. In other words, the supreme law of the land has accorded what the government terms as the right to access due process and equal protection of the law to the Undocumented Myanmar Nationals (UMN) currently staying in Bangladesh.
This important Article of the Constitution was premised on principles enshrined in a number of international instruments. The Universal Declaration of Human Rights enjoins, “Everyone has the right to recognition everywhere as a person before the law” (Article 6), that “all are entitled to equal protection against discrimination” (Article 7), and that “Everyone has the right to an effective remedy by the competent national tribunals…” (Article 9).
Likewise, Article 2/1 of International Covenant on Civil and Political Rights, of which Bangladesh is a State party, obliges the country “to respect and to ensure… all individuals within its territory and subject to its jurisdiction” enjoy the rights recognised in the Covenant “without distinction of any kind” including “national and social origin”. It further elucidates that any person whose rights or freedoms are violated “shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity” (Article 2/3/a). The Convention on the Rights of the Child and that of Elimination of all forms of Discrimination Against Women also contain related provisions.
Thus as per the Constitution of the Republic and Bangladesh's obligation under international treaties, protection of the law and the right to seek legal redress are guaranteed for all Rohingya refugees including UMNs. However, evidence from the field informs that there is a palpable deficit in creating an enabling condition for the Rohingyas, particularly those with undocumented status, to seek legal redress and protection when needs arise.
Currently there are 32,000 registered Rohingya refugees residing in two official camps. They receive protection and assistance from the Government and the UNHCR. In addition, Bangladesh government estimates that there are some 300,000 to 500,000 UMNs. The National Strategy on Myanmar Refugees and Undocumented Myanmar Nationals in Bangladesh (hereafter the National Strategy) adopted by the government acknowledges that these people are victims of “systematic persecution” in their country of origin and their “humanitarian needs” should be met. However, the Strategy document failed to clarify their legal status.
This failure to recognise undocumented Rohingyas as a special group by the Bangladesh government has resulted in their lack of protection and thus made them vulnerable to exploitation of unscrupulous elements denying them fair wages and meting out ill-treatment. The UNMs are also easy prey of women and child traffickers and human smugglers. The 2014 RMMRU-RPC study on undocumented Rohingya refugees has found ample evidence on how lack of legal status and documentation has been the prime source of deprivation, exploitation and harassment of the members of this community. It also noted that most members of the community live in constant threat of being apprehended and detained and subsequently imprisoned for five years for illegal entry under Section 14 of the Foreigners' Act. It is this fear of being locked up for many years that deters them from approaching law enforcement agencies to report abuses and serious violations of their fundamental rights.
The failure of the authorities to grant the UMNs special status has created an unintended yet adverse condition in which individual perpetrators of criminal acts and those of criminal gangs operate with virtual impunity. In other words, lack of legal standing in effect denies them from accessing justice. This has been clearly illustrated in the case of two young sisters who were victims of gang rape in Cox's Bazar district a couple of years ago. When the father of the sisters went to lodge a complaint in the local police station, the Police Officer informed him that he could accept the report but that he must also charge the victims and the father for illegal entry into Bangladesh which entails five years imprisonment. Not surprisingly, the father decided not to pursue the matter. Local rights activists inform that lack of redress has encouraged perpetrators to commit heinous crimes including rape and trafficking.Rohingyas have been termed as “one of the most persecuted minorities of the world”. The Myanmar government has been accused of “genocide” and “ethnic cleansing” against the community. UN agencies, international and regional organisations such as the Organisation of Islamic Conference and the ASEAN, and international human rights bodies including International Commission of Jurists, Amnesty International and Human Rights Watch, have all acknowledged that Rohigyas are fleeing persecution and thus are not mere economic migrants.
Often the point is made that since Bangladesh has not ratified the 1951 Refugee Convention it is not obliged to protect the refugees. It has been stated earlier that the right to asylum is a universal right and Article 14(1) of the UDHR affirms that “Everyone has the right to seek and to enjoy in other countries asylum from persecution”. Even the government's own National Strategy document acknowledged that “anti-Muslim internal laws, particularly the Citizenship Act of 1982, communal violence, various statements of the Myanmar government and that of government of Rakhine province and adverse socio-economic condition” particularly of the Muslims of Rakhine province are the reasons behind the movement (Para 3 of Bangla version). It also highlighted the killings, repression and torching of houses and shops of minority Muslims. The Strategy document categorically stated that “The root causes of the systematic persecution and deprivation need to be highlighted in consistent manner at UN, OIC and other multilateral fora” (para 05/d of English version).
Thus, in order to ensure that all Rohingya refugees enjoy the right to access justice as enshrined in the Constitution of Bangladesh, the government needs to address the discrepancy that exists between Section 14 of the Foreigner's Act (that provide for 5 years imprisonment for illegal entry) and the National Strategy that acknowledges the community's need for humanitarian assistance. Such action would not require time consuming legislative amendment of the law. Sections 3 and 10 of the Foreigner's Act empower the executive authority to exempt any group, including the UMNs, from the application of the Foreigner's Act 1946. It is pertinent to mention that some other refugee receiving countries in the region including India, Malaysia and Indonesia have also made exception to their regular immigration laws to cater to specific needs of the people seeking asylum. It is time that Bangladesh follows suit.
The writer teaches International Relations at the University of Dhaka. He researches and writes on migration and rights issues.