Evaluating Bangladesh’s Legal Framework for Rohingya Refugees: Gaps and Solutions

“Shoot all you see and all you hear” – after receiving this order from his commanding officer in August 2017, Pvt. Myo Win Tun confessed in a video confession years later to having participated within the killings of 30 Rohingya Muslims and burying them in a mass grave near a cell tower and a army base. If nothing else, the previous confession ought to make abundantly clear to a reader the horrific life that the Rohingya have been compelled to reside in Myanmar.

The Rohingya have endured many years of systematic discrimination, statelessness, and focused violence, which persist to this present day. Greater than 700,000 Rohingya have fled to Bangladesh since August 2017 to keep away from detention, torture, rape, and different grave human rights violations after a “clearance operation” performed by the Myanmar army. Bangladesh now hosts round a million Rohingya refugees.

Bangladesh is nicely conscious of the sufferings of refugees as its personal folks have skilled the horror of being compelled to flee their very own nation to flee torture and mass killing. Following the landslide victory of the Awami League within the 1970 election, West Pakistani leaders started procrastinating. On the evening of twenty fifth March 1971 the Pakistani army launched ‘Operation Searchlight’ in opposition to unarmed civilians of East Pakistan. Hundreds of individuals died within the first few days, and an estimated 10 million folks fled from Bangladesh, crossing the border and in search of refuge in India whereas 30 million have been internally displaced.

This harrowing expertise has stayed with the folks of Bangladesh, and the nation has opened its borders to refugees, notably the Rohingya, and welcomed them with open arms many instances in its temporary historical past as an unbiased nation. This welcoming perspective may also be seen within the legal guidelines and insurance policies which have been put in place over time, which have supplied a variety of safety to non-nationals who’ve fled to save lots of their lives, together with the Rohingya. But, obtrusive gaps within the authorized framework additional exacerbate the vulnerability of the Rohingya. This text goals to establish the rights of the Rohingya in Bangladesh below numerous international and nationwide authorized devices and establish areas for enchancment.

What rights do the Rohingya have in Bangladesh?

Rights below the Structure

Because the supreme regulation of the land, the Bangladesh structure protects not solely a citizen’s elementary human rights, but in addition non-nationals dwelling inside Bangladesh’s borders. The Structure, as we all know, identifies 18 elementary rights. Whereas nearly all of these are solely granted solely to Bangladeshi residents, some can be found to all residents and non-citizens. The next rights might be prolonged to any Rohingya dwelling in Bangladesh: Safety of proper to life and private liberty (Article 32), safeguards as to arrest and detention (Article 33), prohibition of compelled labour (Article 34), safety in respect of trial and punishment (Article 35), freedom of thought and conscience (Article 39 (1)), Freedom of faith (Article 41),  and enforcement of elementary rights (Article 44).

Three of those, particularly Articles 33, 34, and 35, have been recognised as absolute rights that can’t be topic to unreasonable restrictions aside from these specified within the Structure. Nevertheless, each elementary proper and freedom is justiciable. Additionally it is vital to notice that no provisions of any regulation could also be in battle with constitutionally assured elementary rights.

Rights below municipal legal guidelines:

Bangladesh is neither a signatory to the 1951 Refugee Conference or the 1967 Protocol, the primary worldwide authorized devices governing refugee rights, nor does it have a nationwide coverage or particular home regulation coping with the safety of refugees. Refugees are thought of foreigners and as such are predominantly ruled by the Foreigners Act 1946. It outlines the foundations for the entry, keep, and departure of international nationals from Bangladesh. Part 10 of this Act provides the Authorities appreciable energy to exempt any particular person foreigner or any class or description of foreigner from any provision of the Act. There are different Acts that apply not solely to residents but in addition to people who find themselves inside the territory of Bangladesh. Thus, relying on the circumstances, a plethora of Acts could also be invoked to control the Rohingya taking shelter in Bangladesh.

Moreover, there are quite a few instances that arguably come inside the scope of this subject. In Refugee and Migratory Actions Analysis Unit (RMMRU) v. Bangladesh, for instance, the Court docket dominated that on account of Bangladesh’s non-refoulement obligations, the return of launched Rohingya to Myanmar was not attainable. The Court docket additionally said that “the 1951 Refugee Conference has grow to be part of customary worldwide regulation that’s binding upon all nations of the world, no matter whether or not a specific nation has formally signed, acceded to, or ratified the Conference or not.”

Rights below international authorized devices:

As beforehand said, the United Nations Conference Referring to the Standing of Refugees of 1951 and its 1967 Protocol are the primary worldwide authorized devices regarding refugee rights. Bangladesh has not ratified the 1951 Refugee Conference or its 1967 Protocol. Nevertheless, this doesn’t imply that the Rohingya dwelling in Bangladesh should not have any rights below worldwide regulation. The truth is, lots of the identical rights which might be enshrined within the 1951 Refugee Conference or its 1967 Protocol are additionally ingrained in different worldwide human rights devices that Bangladesh has signed. For instance, Article 5 (a) of the Worldwide Conference on the Elimination of All Types of Racial Discrimination obligates a State to  guarantee equality earlier than the regulation, together with equal remedy earlier than judicial organs. Article 3 (1) of the Conference in opposition to Torture and Different Merciless, Inhuman or Degrading Therapy or Punishment states that no State Social gathering shall expel, return (“refouler”) or extradite an individual to a different State the place there are substantial grounds for believing that he can be in peril of being subjected to torture.

What might be achieved to enhance the prevailing authorized framework?

First, some citizen-centric provisions of the Structure, notably these associated to elementary rights, could possibly be amended to incorporate non-citizens. For instance, Article 27 of the Structure states, “All residents are equal earlier than the regulation and are entitled to equal safety of the regulation.” Right here, “all residents” could possibly be changed with “everybody residing within the territory of Bangladesh.” 

Second, many municipal legal guidelines, together with the Foreigners Act 1946, are outdated. These legal guidelines could possibly be amended to include extra trendy provisions that align with worldwide human rights requirements, whereas contemplating native social, political, and financial realities. A complete listing of such municipal legal guidelines might be discovered right here.

Third, Bangladesh ought to take into account enacting a nationwide laws particularly for the refugees. Formulation of such a regulation can help Bangladesh in defending the rights of refugees and asylum seekers in a extra organised method. In doing so, inspiration might be taken from the United Nations Conference Referring to the Standing of Refugees of 1951 and its 1967 Protocol together with different progressive regional and nationwide devices. This regulation can prioritise sure areas which might be crucial for Rohingya refugees, similar to, training and livelihood, well being, safety, and repatriation.

Nevertheless, these steps ought to solely be carried out after complete consultations with all related stakeholders, together with teachers, legal professionals, representatives from NGOs, INGOs, and donor organisations who’re well-versed within the present international, regional, and nationwide authorized framework, its strengths, and its weaknesses.

Lastly, it’s important to make sure the correct use and implementation of the legal guidelines. This may be achieved by way of, amongst different issues, constructing the capability of key actors, elevating consciousness about these legal guidelines and processes related to growing their entry to justice, and selling larger accountability inside the establishments answerable for their enforcement. Right here, the function of the worldwide neighborhood will likely be of nice significance as these actions would require quite a lot of funding.