“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 in the killings of 30 Rohingya Muslims and burying them in a mass grave close to a cell tower and a military base. If nothing else, the preceding confession should make abundantly clear to a reader the horrific life that the Rohingya were forced to live in Myanmar.
The Rohingya have endured decades of systematic discrimination, statelessness, and targeted violence, which persist to this day. More than 700,000 Rohingya have fled to Bangladesh since August 2017 to avoid detention, torture, rape, and other grave human rights violations after a “clearance operation” conducted by the Myanmar military. Bangladesh now hosts around one million Rohingya refugees.
Bangladesh is well aware of the sufferings of refugees as its own people have experienced the horror of being forced to flee their own country to escape torture and mass killing. Following the landslide victory of the Awami League in the 1970 election, West Pakistani leaders began procrastinating. On the night of 25th March 1971 the Pakistani military launched ‘Operation Searchlight’ against unarmed civilians of East Pakistan. Thousands of people died in the first few days, and an estimated 10 million people fled from Bangladesh, crossing the border and seeking refuge in India while 30 million were internally displaced.
This harrowing experience has stayed with the people of Bangladesh, and the country has opened its borders to refugees, particularly the Rohingya, and welcomed them with open arms many times in its brief history as an independent country. This welcoming attitude can also be seen in the laws and policies that have been put in place over the years, which have provided a wide range of protection to non-nationals who have fled to save their lives, including the Rohingya. Yet, glaring gaps in the legal framework further exacerbate the vulnerability of the Rohingya. This article aims to identify the rights of the Rohingya in Bangladesh under various global and national legal instruments and identify areas for improvement.
What rights do the Rohingya have in Bangladesh?
Rights under the Constitution
As the supreme law of the land, the Bangladesh constitution protects not only a citizen’s fundamental human rights, but also non-nationals living within Bangladesh’s borders. The Constitution, as we know, identifies 18 fundamental rights. While the majority of these are only granted exclusively to Bangladeshi citizens, some are available to all citizens and non-citizens. The following rights can be extended to any Rohingya living in Bangladesh: Protection of right to life and personal liberty (Article 32), safeguards as to arrest and detention (Article 33), prohibition of forced labour (Article 34), protection in respect of trial and punishment (Article 35), freedom of thought and conscience (Article 39 (1)), Freedom of religion (Article 41), and enforcement of fundamental rights (Article 44).
Three of these, specifically Articles 33, 34, and 35, have been recognised as absolute rights that cannot be subject to unreasonable restrictions other than those specified in the Constitution. However, every fundamental right and freedom is justiciable. It is also important to note that no provisions of any law may be in conflict with constitutionally guaranteed fundamental rights.
Rights under municipal laws:
Bangladesh is neither a signatory to the 1951 Refugee Convention or the 1967 Protocol, the main international legal instruments governing refugee rights, nor does it have a national policy or specific domestic law dealing with the protection of refugees. Refugees are considered foreigners and as such are predominantly governed by the Foreigners Act 1946. It outlines the rules for the entry, stay, and departure of foreign nationals from Bangladesh. Section 10 of this Act gives the Government considerable power to exempt any individual foreigner or any class or description of foreigner from any provision of the Act. There are other Acts that apply not only to citizens but also to people who are within the territory of Bangladesh. Thus, depending on the circumstances, a plethora of Acts may be invoked to regulate the Rohingya taking shelter in Bangladesh.
Furthermore, there are numerous cases that arguably come within the scope of this topic. In Refugee and Migratory Movements Research Unit (RMMRU) v. Bangladesh, for example, the Court ruled that due to Bangladesh’s non-refoulement obligations, the return of released Rohingya to Myanmar was not possible. The Court also stated that “the 1951 Refugee Convention has become a part of customary international law that is binding upon all countries of the world, regardless of whether a particular country has formally signed, acceded to, or ratified the Convention or not.”
Rights under global legal instruments:
As previously stated, the United Nations Convention Relating to the Status of Refugees of 1951 and its 1967 Protocol are the main international legal instruments concerning refugee rights. Bangladesh has not ratified the 1951 Refugee Convention or its 1967 Protocol. However, this does not mean that the Rohingya living in Bangladesh do not have any rights under international law. In fact, many of the same rights that are enshrined in the 1951 Refugee Convention or its 1967 Protocol are also ingrained in other international human rights instruments that Bangladesh has signed. For example, Article 5 (a) of the International Convention on the Elimination of All Forms of Racial Discrimination obligates a State to ensure equality before the law, including equal treatment before judicial organs. Article 3 (1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment states that no State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
What can be done to improve the existing legal framework?
First, some citizen-centric provisions of the Constitution, particularly those related to fundamental rights, could be amended to include non-citizens. For example, Article 27 of the Constitution states, “All citizens are equal before the law and are entitled to equal protection of the law.” Here, “all citizens” could be replaced with “everyone residing in the territory of Bangladesh.”
Second, many municipal laws, including the Foreigners Act 1946, are outdated. These laws could be amended to incorporate more modern provisions that align with international human rights standards, while considering local social, political, and economic realities. A comprehensive list of such municipal laws can be found here.
Third, Bangladesh should consider enacting a national legislation specifically for the refugees. Formulation of such a law can assist Bangladesh in protecting the rights of refugees and asylum seekers in a more organised manner. In doing so, inspiration can be taken from the United Nations Convention Relating to the Status of Refugees of 1951 and its 1967 Protocol along with other progressive regional and national instruments. This law can prioritise certain areas that are critical for Rohingya refugees, such as, education and livelihood, health, protection, and repatriation.
However, these steps should only be implemented after comprehensive consultations with all relevant stakeholders, including academics, lawyers, representatives from NGOs, INGOs, and donor organisations who are well-versed in the existing global, regional, and national legal framework, its strengths, and its weaknesses.
Finally, it is essential to ensure the proper use and implementation of the laws. This can be achieved through, among other things, building the capacity of key actors, raising awareness about these laws and processes relevant to increasing their access to justice, and promoting greater accountability within the institutions responsible for their enforcement. Here, the role of the international community will be of great importance as these activities will require a great deal of funding.
