Star Law analysis
Rights of the refugees in our laws
Md. Akhtaruzzaman
History reveals that people have moved from their country of origin to another country for variety of reasons. Sometimes it is voluntary, some times it is not. In case of voluntary movement it is described as migration and people migrate from one place to another seeking a better economic and social life. In the later case, where an individual does not enjoy the protection of the state and is forced to move from the country of origin because of insecurity due to war, persecution and human rights violations, he/she takes refuge in another country and thereafter is treated as a refugee. The refugee problem is now-a-days a global issue. The normative developments in these area in the wake of Second World War led to the adoption of 1951 UN Convention Relating to the Status of the Refugees, which helped to deal with problems in Europe in a humane manner. The 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa and the Cartagena Declaration on Refugees, 1984 in Latin America dealt with specific aspects of refugee problems in these regions.
Terminologically, the word 'refugee' is connoted as a derivative of 'refuge'. As such 'refugee' is considered to be a person taking refuge, especially in foreign country from religious or political persecution or from war, man made crisis or from natural calamities. As the expert on Refugee Law, Goodwill Gill observed: 'Refugee' means a person who is in flight seeking escape from conditions or personal circumstances found to be unendurable and this flight may be to freedom and safety or from oppression, threat to life or liberty or from persecution, deprivation, grinding poverty or form natural disasters, earthquake, flood, drought or famine or from war or civil strife.
According to Article 1(A) of the Convention Relating to the Status of Refugees of 28 July, 1951, a refugee is a person who “owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country/or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it”.
The 1951 Convention covered only those persons who have become refugees as a result of events occurring before 1 January, 1951. After adoption of the Convention new refugee situations had arisen throughout the world and it needed elaboration of the definition. Subsequently, Protocol Relating to the Status of Refugees of 1967 was adopted and by Article 1 the earlier definition was expanded. The term refugee was later on explained and elaborated by the 1969 OAU Refugee Convention. The traditional definition of refugee is extended by the Cartagena Declaration on Refugees of 22 November, 1984 to include persons who have fled their country because their lives, safety or freedom have been threatened by generalised violence, foreign aggression, internal conflicts, massive violations of human rights or other circumstances, which have seriously disturbed public order. The Asian-African Legal Consultative Committee defined a refugee in much the same terms as the 1951 Convention and the 1967 Protocol with the addition of “colour” as a condition on which a well founded fear of persecution could be based.
Causes for the increase of refugee problems
The refugee crisis is a world-wide issue and there are more refugees today than ever before and possibly an even larger number of internally displaced persons (IDPs) in refugee like conditions. It is well known that civilians, particularly women, children and elderly, make up the majority of casualities of internal armed conflicts. The carnage in the former Yugoslavia, Cambodia, Somalia and other internal conflicts provides graphic proof of war being waged against defenseless civilians. A further examination of the refugee figures gives cause for serious concern. If the number of armed conflicts in the world is on the increase, the number of refugees and displaced people is bound to increase dramatically. There is likely to be a significant increase in internally displaced persons, relative to refugees. Most of those fleeing wars are victims or potential victims of breaches of humanitarian law such as “ethnic cleansing” systematic rape, reprisal attacks, or destruction of essential civilian infrastructure, rather than violations of individual human rights. In addition to that natural calamities like Tsunami, man made disaster, lack of fulfilment of basic necessities e.g. shelter, medical facility, food and education, lack of resources, absence of legal protection, lack of expertise to deal with the situation, sometimes forced recruitment as guerrilla, internal disturbances are also identified as causes in the matter.
Refugee rights under the Constitution
The Constitution of Bangladesh is a written and rigid constitution. It gives some justiciable fundamental human rights. These rights are enlisted in Part III of the Constitution with a vision to ensure equality before law. We have as many as 18 fundamental rights from which some are applicable to non-citizens also. These include-
(a) Right to protection of law (Article 31);
(b) Right to life and personal liberty (Article 32);
(c) Safeguard as to arrest and detention (Article 33);
(d) Prohibition of forced labour (Article 34);
(e) Protection in respect of trial and punishment (Article 35);
(f) Right to enforce fundamental rights (Article 44).
From the above, it reveals that although refugees are 'non-citizens' in our country, however they are entitled to enjoy some fundamental rights within the ambit of the Constitution.
Refugees' rights under other Statutory Laws
The Constitution of Bangladesh, as we know, is the supreme law of the country. Article 31 of the Constitution describes: “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, in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law.”
From the above it is observed that Article 31 proclaims the right of individuals to be dealt with in accordance with law. In the case, Abdul Latif Mirza v. Bangladesh (1979) 31 DLR (AD), it was declared by the Hon'ble Appellate Division of the Supreme Court of Bangladesh that Article 31 gives citizen a constitutional guarantee that he will enjoy the protection of law and to be treated in accordance with law and this is his inalienable right.
So, refugees are not citizens of this country and they could not claim all the rights like a citizen. However, it is very clearly laid down in Article 31 that no action detrimental to the life, liberty, body reputation or property of any person including a refugee shall be taken except in accordance with law. So, as a human being refugee does enjoy some inalienable rights and that cannot be taken away except in due process of law. People become refugees when their basic human rights are abused. We have statutory civil and criminal laws. There are civil and criminal courts in our country constituted under the relevant provisions of law. We were refugees in 1971 and at present a host country for refugees. We are hosting the Rohingya refugees. It is seen that sometimes they are violating the existing laws of the country. Sometimes, they are committing criminal acts. Their basic rights sometimes are infringed by their internal conflicts or any other reasons. In case of infringement of civil rights, they can get justice through civil courts. If the refugees commit offences, they can be prosecuted in criminal courts. We know, in most of the cases, refugees are in economic hardships. It is difficult for them to engage a lawyer in a court of justice when they face litigation. The Government of Bangladesh passed the Legal Aid Act, 2000 (Act 6 of 2000) for helping the poor litigants of our country. If the refugees be litigants in any litigation, in appropriate cases, they can take the advantages of the said Act and get justice.
Concluding remarks
Many countries of the present world have agreed to grant asylum to refugees. To grant asylum means to offer protection in a safe country to people who are in danger in their own country. This idea of giving protection to a asylum seekers by another country proved that as a human being refugees have some inalienable rights under international human rights law and they have right to enjoy such rights as a member of human community without any distinction as to race, sex, colour or nationality.
We have observed from our previous discussion that refugees could get protection under the provisions of civil and criminal laws of Bangladesh. They could also enforce their civil rights, if there is any violation, through the court. At the same time the refugees could be prosecuted for their criminal act, if any. However, according to different reports, the scope for the refugees to get justice here in Bangladesh is limited. We have no comprehensive and proper legislation to deal with the refugee issue. So, there is a need for adoption of a proper legislation for the protection and management of the asylum and refugee issue in the country.
The author is the Deputy Director (Joint District Judge), Bangladesh Judicial Service Commission Secretariat, Dhaka. (Opinion expressed in this article is author's own and necessarily does not reflect his official position)
