No person shall be deprived of life or personal liberty…." stipulates Article 32 of Bangladesh Constitution. Article 31 further guarantees "protection of the law and to be treated in accordance with law" as "the inalienable right of every citizen … and of every other person for the time being within Bangladesh".  

Personal liberty constitutes the core of the corpus of international human rights law. Article 3 of Universal Declaration of Human Rights guarantees the right to life, liberty and security of all persons. Article 9 of the International Covenant of the Civil and Political Rights states that no one shall be deprived of his liberty except in accordance of law. Authoritative interpretation of Article 1(1) of the Convention against Torture reveals that pain and suffering arising from unlawful sanction (indefinite detention in this case) amounts to torture.  All these lead us to conclude that Bangladesh as a state party is obliged to honour personal liberty of all individuals, citizens and aliens. 

This essay focuses on the predicament of the undocumented Rohingyas who are languishing in various prisons even after serving out sentences for violating the laws of Bangladesh. Figures provided by the prison authorities inform that in January 2016 there were 169 under trial, 8 convicted and 15 'released prisoners' of Myanmarese origin. 

Although the government's 2014 National Strategy Paper on Rohingyas acknowledged "systematic persecution and deprivation of the Muslim minorities in Myanmar, especially in Rakhine state" as the root cause of their plight, the legislation that regulates their entry into Bangladesh is the Foreigners' Act (FA), 1946. According to the FA, the punishment for illegal entry is imprisonment for a term which may extend to five years along with fines as well. The FA is not applicable to the 30,000 registered refugees who have been granted permission to stay in the country. 

As per law, after serving their prison terms, foreign nationals should be returned to their respective countries with the assistance of the diplomatic missions of the concerned countries. As Mynamar authorities refuse to acknowledge the Rohingyas as their nationals, the undocumented Rohingyas convicted of illegal entry and other offences often have to remain in prison for indefinite periods. That means even after duly serving their terms of imprisonment for illegal entry under the FA, they continue to remain incarcerated. In a few instances these officially dubbed "Released Prisoners" have been detained for a period of more than ten years!

Detaining an asylum seeker and keeping them detained even after serving their sentences is a violation of both national and international human rights norms and principles. Rule 516 of Bangladesh Jail Code clearly states, "Under no circumstances shall a prisoner be detained in jail beyond the period indicated by the terms of the warrant of commitment". Also, in a landmark judgment, the High Court Division of the Supreme Court of Bangladesh observed that "keeping any prisoner in jail after serving out the sentences amounts to violation of the Human Rights and Fundamental Rights as guaranteed by the Constitution of the country" (Faustina Perera vs. State, 2011). The Court directed the government to ensure that steps be taken so that "such prisoners do not languish in jail for indefinite period for no fault of their own". In the same judgment the Court further instructed the Ministry of Home Affairs to take necessary steps to ensure shelter of the prisoners after their release until they are repatriated to their respective country. 

The right to secure protection and to access justice by asylum seekers and refugees is a long established principle. There is enough evidence to show that due to fear of being arrested under the FA the undocumented Rohingyas refrain from reporting any offence committed against them. In this way the FA impedes their access to justice and contributes to a culture of impunity.

Under the circumstances considering their protection needs and entitlement to humanitarian assistance (as acknowledged in the National Strategy Paper) the government should consider exempting the undocumented Rohingyas from the application of the Foreigner's Act, 2016. It may invoke the immunity under Article 10 of the Act. While the prisoners under trial detained under the FA may be granted bail with a friend or relative acting as 'guarantor', the 'Released Prisoners' may be released under 'parole' or 'probation'. The government may also consider sending the released prisoners to the camps where registered refugees are housed. 

This anomalous application of the law further reinforces the need for a national law on asylum seekers and refugees.

The writer teaches International Relations at University of Dhaka and coordinates the Refugee and Migratory Movement Research Unit. He researches and writes on migration and rights issues.