Tuesday, May 22, 2007

Bhutanese Refugees: Pawn in the hands of governments and politicians?

[Below we present a note sent by Tapan Bose (South Asia Forum for Human Rights, Kathmandu) on how the Nepali speaking South Bhutanese refugees are once again in the eye of a controversy. This time it is about the offer of the US government to resettle about 60,000 refugees in the United States. A section of the Nepalese and international media as well as some NGOs are projecting the US offer as an attempt to weaken the unity and the resolve of the Bhutanese refugees to 'return to their homeland'. It seems that all the well-wishers of the Bhutanese refugees are convinced that 'repatriation to Bhutan' is the best and the ideal solution. – Ed.]

Under the UN Convention on Refugees, there are three options for durable solution:
1.Return to the country of origin.
2.Rehabilitation in the host country.
3. Resettlement in a third country.
The UDHR also guarantees the right of every person to seek asylum. Though the UN convention on refugees does not indicate that any of the three is the most preferred, 'return' has somehow emerged as the most preferred solution.
It is nice to think 'return' as the ideal solution, which carries the image of happiness, which is usually associated with the image of welcome. It is definitely great to hope that when every one returns to their home the neighbours would come over and hug the returning families and all of them would settle down happily and life would restart from where it was 'stopped' at the moment of departure. But this as we all know never happens in reality. Experience shows that 'return' is one of the most difficult solutions. The reasons, which had forced the refuges to leave their home and hearth often, remain powerfully alive. The government, political groups and sections of the neighbours perpetrated a violence that the refugees cannot forget. The very first requirement of a 'returnee' is a protection against those forces. And this cannot happen unless the government of the state is committed to provide that security and the assistance to the returnees, which are essential for successful resettlement in their home country. The South Asian experiences of return, be it the case of Rohingyas to Myanmar from Bangladesh, Chakmas to Bangladesh from India and Sri Lankan Tamils from India to Sri Lanka have been extremely painful for all the returnee communities.
Under these circumstances the hope of 'return' for the Bhutanese refugees defies reality. Since the arrival of the Bhutanese refugees in Nepal in 1990-91, Nepal government has made every effort to secure their 'right to return'. During the 17 rounds of the so-called bilateral dialogue with the government of Bhutan, Nepal government gave into almost all the demands of Bhutan including to the obnoxious policy of 'categorisation and verification of the refugees by a joint team of Nepal and Bhutan'. However, all the efforts of Nepal government achieved nothing. The refugees are still stuck in the seven camps in eastern Nepal.
The first country of asylum for the Bhutanese refugees was and is India. After being uprooted from their homes and pushed inside Indian territory, the refugees found they were unwanted there. Indian authorities showed no sympathy. They did not recognize their status as citizens of Bhutan. On the Bhutanese refugee issue, Indian government has refused to seriously dialogue with Bhutan government and has prevented Nepal from taking the issue to the UN. Senior Indian bureaucrats and political leaders prefer following a policy of non- interference in the internal affairs of Bhutan, its trusted ally and dependable supplier of energy resources. Political leaders from the Congress, CPI (M) and AGP in West Bengal and Assam felt that the government should stay out of the question of the claims of Nepalese settlers in south Bhutan to Bhutanese citizenship rights, as it might boomerang on India. Already India was confronted with the unregulated movement of masses of Nepalese people from the eastern and western hill regions of Nepal. In other words, the Bhutanese refugees of Nepalese ethnicity were seen as Nepal's problem and therefore were pushed into Nepal.
During a discussion with Mr Shyam Saran, the then Indian Foreign Secretary, when I asked why India had pressurized Nepal to accept the blatantly unfair Bhutanese demand for 'categorisation and verification' of the refugees as a precondition for Bhutan's recognition of these people as its citizens, he explained, it was the only terms on which Bhutanese government was agreeable. It would appear that India was trying to get Bhutan to take back a few, thus saving Nepal's face, and then the rest could be resettled in India and Nepal. Apparently Indian government had assured Nepal that it would share a part of the burden of re-settling the remaining Bhutanese refugees. According to Mr. Saran, Bhutan's offer to take back a small number of refugees from Khudnabari camp after the completion of the first round 'categorisation and verification' was acceptable to the government of Nepal and the Bhutanese refugees. The return of people identified as category 1 and category 2, was expected to have paved the way for resolving the refugee crisis. Mr. Saran blamed the UNHCR and human rights NGO for destroying that opportunity by campaigning against Bhutan's offer, motivating the refugees to reject it.
It should be added, that the Bhutanese offer for persons in category 1 (citizens wrongly evicted) was that they could return but would receive no support for their rehabilitation nor would they be any restitution of their property. For people in category 2 (who left voluntarily) on return, they would have to live in designated camps. Only one member of the family would get employment. After eight years they could regain full citizenship, if they passed an examination to prove their loyalty to the nation and the king of Bhutan.
Government of Nepal is not willing to resettle the Bhutanese refugees in their country. Mr. K. P. Oli, the Deputy Prime Minister of Nepal had told me that there is no question of Nepal granting citizenship to the Bhutanese refugees. In my discussions with successive Nepalese Foreign and Home Ministers as well as leaders of Nepali Congress and Communist Party of Nepal (UML), I was firmly told – the Government of Nepal was not ready to explore the 'third country resettlement option'. Evidently, 'return to Bhutan' was an article of faith of Nepalese foreign policy and no politician was willing to tinker with it. I also felt that behind this inflexible policy stance was an effort to cover the humiliation at the failure to get Bhutan to take back the people of Nepalese ethnicity. The need to save 'face' is epitomized in the ludicrous response of Nepal's Prime Minister Girija Prasad Koirala to the US offer for resettlement of Bhutanese refugees - all the Bhutanese refugees should return to Bhutan even for a day before they go to another country for rehabilitation. Mr Oli had told me that 'return of the refugees' was a part of the larger vision of a 'democratic Bhutan'.
Now, Bhutanese politicians in exile, young revolutionaries and Maoist party cadres are campaigning against the offer for resettlement of 60,000 essentially because it has come from the Government of the USA. Some of the older Bhutanese NGOs which have been propagating 'return' as the only demand with the support of the 'revolutionary' groups are intimidation those refugees who would like to explore the possibilities of 'resettlement in a third country'. The claim of the so-called leaders of the refugee community that all the Bhutanese refugees want to return at any cost is a lie. The lie is proved by the fact that all the refugees in category I and II had refused to o back to Bhutan on the terms put forward by the Bhutanese government. The lie is further exposed by the fact thousands of refugees have sent appeals to the UNHCR requesting their resettlement in a third country. In all the training workshops that SAFHR organised on the rights of refugees in the camps during the past four years, overwhelming majority of the participants were keen to learn about the process of resettlement in a third country.
The Bhutanese refugees live in the seven camps without any security. Nepal government has withdrawn the police posts from the camps long ago. They have often faced violence from the local communities. A few camp inmates were killed in clashes with local Nepalese on issues of theft of firewood from local forests. Young refugee women have been lured into sex work. There are reported cases of rape of refugee women, which have remained unsolved...
It seems, once again the refugees would have to give up this opportunity to rebuild their lives in a new country to fulfill the dreams of the self centred 'elite' political leaders. Not one of the so-called Bhutanese politicians lives inside the camps. All of them have their homes outside the camps. Some also own property in Nepal. Their children study in expensive schools in Nepal and abroad. Obviously the leaders cannot afford their captive masses to desert them.
We have been failing the Bhutanese refugees all these years. Let us not let this opportunity pass them by. Let us not stand aside and let these so-called political parties in exile decide the collective fate of all the refugees. It is important for the government of Nepal, the UNHCR and the NGOs to intervene and help those who want to accept the offer of resettlement in the USA. Let some escape the camps where they have been prisoners for the last seventeen years.

Friday, May 18, 2007

New IDMC report on forced migration and displacement in Myanmar attempts to address current gaps

In May 2007 the Internal Displacement Monitoring Centre (IDMC) released a new report on forced migration and displacement in Myanmar with special focus on the government-controlled areas of the country. The report, by Andrew Bosson, is meant as a preliminary exploration of the subject in terms of reliance on unsystematic and indirect sources due to challenging circumstances of doing research in and on Myanmar.
The report is organized in two sections. The first section addresses the status of displaced people in Myanmar in terms of international standards especially in the light of the Guiding Principles of Internal Displacement. The report does not estimate actual numbers or patterns of movement of such migrants, though expert individuals and organisations suggested that these “livelihood migrants” constitute majority of migrants in Burma. This report limits itself to describing the coercive measures practiced countrywide and discussing the status of those who have been subject to such measures.
The second section is organised by region and it looks at the parts of Myanmar not covered by the Thailand Burma Border Consortium as well as the conflict and post-conflict areas of Eastern Burma. The report concentrates on the government-controlled parts of Burma with little explicit military conflict. A substantial part of the report addresses direct relocation by government agents.
Forced Migration/Internal Displacement in Burma, with an Emphasis on Government-Controlled Areas
Link to full report
Link to International Displacement Monitoring Centre, Geneva

Friday, May 11, 2007

Role of clinical legal education in increasing access to justice

Mostafa Mahmud Naser, Assistant Professor of Law at the University of Chittagong and a former participant in the Winter Course on Forced Migration 2006

[An earlier version was published in The Daily Star on 14 April 2007]

Bangladesh has hundreds of thousands of people internally displaced due to civil war and religious persecution. The scale and nature of internal displacement in Bangladesh is personified by the notorious conflict-induced displacement in the Chittagong Hill Tract in the southeast of the country. Both the internally displaced Bangladeshis and the returning refugees from the neighbouring countries face the issue of their access to justice in their homeland. Access to justice is crucial for the rehabilitation of these marginalized groups as they face contentious issues of land ownership and property rights.
In our adversarial legal system, poverty, inordinate delay, high cost of litigation, lack of legal aid mechanism and unavailability of alternative informal justice delivery system are considered the road blocks in the way of access to justice. In most of the cases, access to justice is only available to the resourceful person and powerful elite since in order to have access to justice one must have the means, which includes money. The poverty-ridden people in our country are, normally, not aware of the rights and the relief(s) they are entitled to. This is primarily due to lack of education. Even if they are made aware of their rights and the relief(s), because of financial constraints they cannot enter even the gate of justice. In this context, law and the attitude and activities of the personnel involved with the operation and enforcement of law can be used to help the poor and the disadvantaged to exercise greater control over their lives.
The institutions of legal education i.e. law faculties and law departments in the universities, both public and private, and the law colleges of Bangladesh can play a vital role in this regard. These institutions can distinguish themselves by concentrating their resources and efforts in encouraging and enhancing access to justice.
Clinical legal education is basically practical legal training through moot-court, mock-trial, participation of the students in ADR and in public legal education i.e. mass legal awareness programmes, chamber practice with the lawyers, counseling, participating in the conduct of life cases, short of appearing in the courts. Clinical legal education is learning through doing, or by the experience of acting as a lawyer. Hence, this is experiential learning. Clinical legal education merits separate treatment, for it is not merely a methodology of teaching or learning, it is also providing service to the people and, hence, more practical and noble. When young students at the formative stage of their career are exposed to community legal services, they get sensitised to the problems and needs especially of the marginalised sections of the people, and feel motivated to continue to work for them when they enter professional life.
Thus, clinical legal education programme encourages law schools to expand their educational objectives to more completely serve the needs of their students and to provide instruction about the knowledge, skills, and values that will enable their students to become competent legal problem solvers. Successful implementation of clinical legal education programmes in the law faculties and law schools in a country like Bangladesh will not only improve the quality of its legal education, but it can go a long way in meeting the demands of social justice, legal needs of the poor and improving human rights conditions.
Enhancing access to justice
Objectives of clinical legal education can be achieved under the supervision of law faculties or law schools by undertaking massive works in the following areas:
Integration of social values through curriculum: Lack of social relevancy and humanistic approach in the curriculum alienates and suppress various values, ethics, gender perspectives and views of minority etc. Therefore, by way of adding courses to the curriculum that address the issues of gender, cultural migration, minority and indigenous peoples or allowing students to work with people of other cultures, we can equip law students to revisit their responsibilities to the marginalised section of the society. The law curriculum should be introduced in integration with other disciplines. It is time to appreciate that the subject matter of economics, sociology, anthropology, philosophy, literature and psychology are essential to the education of the future law graduates. As the minimum, the budding lawyers must be taught in the economics of law, lawsuits and lawyering.
Members of the legal profession need to play the role of educator, planner, and counselor. Therefore, lawyers must be trained in skills that provide for a broader understanding of various facets of legal problems. Fundamental lawyering skills are important to provide social justice. However, any set of skills confined only to traditional methods of problem solving would be manifestly insufficient. Students would be required to undergo the entire process of lawyering either by exposure to actual cases or in dramatic simulations. In both instances, they are to act as lawyers and learn the details of lawyering from the experience of being a lawyer, real or simulating. While the students work under the supervision of a practicing lawyer or a clinical teacher, they are expected to face situations, analyse facts and take decisions independently.
In externships programmes, post-graduate students are required to work with leading NGOs, engaged in para-legal activities in different parts of Bangladesh. This programme proved extremely useful for the students as it provides necessary motivation and sensitises and exposes them to the society and masses at large. Placement with legal services groups will offer Bangladeshi law students valuable opportunities to broaden their perspectives, integrate such services into their careers, and join the community of legal activists.
Law clinics remained focused on poverty law issues and formulated increasingly sophisticated educational regimes to accompany live client representation. Balancing the twin missions of service and education, the clinical movement became an institutionalised component of legal education. Today, there is little dispute about the merits of clinical legal education. By addressing human rights and social justice concerns, law clinics and NGOs may help upgrade the quality of the legal profession in general. Dismay at the profession's low ethical and professional standards drove many top law graduates into teaching or business in the past. The clinics and expanding NGO opportunities improved legal training and encouraged high-calibre graduates to practice law.
Law schools can also establish legal aid cells where students and teachers can guide people in identifying their problems and make them aware of the remedies available to them. Students in these cells can also provide paralegal services such as drafting affidavits, assisting in registration of marriages, births and deaths, electoral rolls, and filling out various forms. This type of work gives students ample opportunity to learn key interviewing, counseling, and drafting skills. Another approach is for law schools to adopt a village and encourage students to conduct a survey to identify the problems that the people in that particular village face. After identifying the problems, students can approach the authorities concerned and arrange a public forum. Often, local authorities are not responsive to local citizens' concerns, especially those from disadvantaged communities. The idea here is to inform villagers about the programme and to encourage them to participate in the forum so that they can meet the officers concerned on that particular day and can settle their grievances in public. Students can be instrumental in the smooth functioning of the entire programme, and they can follow up on particular matters with the officers concerned.
Justice education requires us to place an even greater emphasis on negotiation, dispute resolution and collaborative working relationships. Our students must be taught how to resolve problems before they deteriorate into potential lawsuits. Our young lawyers need to be educated to recognise that even if the outcome of litigation is relatively certain, there is not always just one right answer to a problem. A money judgement may not be an effective solution for all parties, and so lawyers should work to provide for a lasting solution, one that is worked out through negotiation or appropriate dispute resolution. They need to learn that it is not enough to root out the facts of the problem: they must understand the context in which the problem arose. 'A good lawyer can assist clients in articulating their problems, finding their interests, ordering their objectives, and generating, assuring, and implementing alternative solutions.'
Public legal education can be effected through lectures, discussions, publications and distribution of simplified and adopted versions of constitution and international human rights instruments etc. or adopting any other informal methods like production of street plays that focus on legal issues. As a part of the public legal education programmes the aforesaid lectures, seminars and discussions can be organised in villages, factories, professional unions, educational institutions and amongst particular disadvantaged groups like slum dwellers, garments workers or aborigines. Public legal education should also motivate the people to participate constructively in the creation of law, which has a pervasive influence on our society.
The whole idea of clinical legal education can go in vain if ethical side of legal profession is overlooked. Objective of clinical legal education is not merely to help students master the skills of lawyering and make them technically sound. In representing a client's case in the court, student lawyer must not resort to any means, which is morally condemnable, must avoid resorting to false witnesses and distortion of facts. While client's interest must guide his actions and efforts, ethical and moral values must also be upheld, for in that lies greater good of the society. In fact, in all the programmes that are linked with clinical legal education emphasis is always on the aspects of justice, protection of rights and progressive development of the society. While execution of these programmes requires moral and ethical motivation, successful implementation of the programmes will itself instill further ethical and moral values in the students.
Our legal education has so far been concentrating on the lawyering process and skills learning. To make legal education truly meaningful in the context of our social realities effort must be made without further delay to accommodate the remaining objectives in the clinical curriculum. This, very likely, will necessitate establishment of 'out-reach programmes' where students will have the opportunity to interact with 'real problems', whose resolutions they are expected to come up with. This will allow the students to reflect on whether justice can always be done by litigation.
The Constitution of Bangladesh in its preamble and Fundamental Principles of State Policy speaks about social justice, which is the key pillar of the Constitution. According to Article 15 of the Constitution of the People's Republic of Bangladesh it shall be a fundamental responsibility of the state to attain, through economic growth, a constant increase of productive forces of the people, with a view to securing to its citizens the provision of the basic necessities of life, including food, clothing shelter, education and medical care. But due to vicious circle of poverty, even after thirty-five years of independence these goals are yet to be achieved. High ideals of our liberation struggle as reflected in the constitution will continue to remain mere promises if we fail to ensure that every individual citizen has access to justice and access to the law- just law justly and equitably administered.
In the background of constitutional commitment and the societal needs, legal education must embrace a broad and comprehensive concept.

Friday, May 04, 2007

Updated profile of internal displacement in India

Updated profile of internal displacement in India: A Report by IDMC (http://www.internal-displacement.org/)
India: large numbers of IDPs are unassisted and in need of protection

Civilians have fled fighting and have sometimes been directly targeted by militant groups in Kashmir, the North-East and in several states of eastern and central India. Insurgency and retaliatory operations by security forces are the major immediate cause of conflict-related displacement in India. A majority of the internally displaced people (IDPs) have not been able to return for several years, due to either protracted conflicts or unresolved disputes over land and property. One example is India’s largest group of internally displaced, the Kashmiri Pandits who have been fleeing the Kashmir Valley since 1989 due to persecution, killings and massacres. Thousands more have languished in relief camps in Assam since the early 1990s, while more than 5,000 families remain displaced after the communal violence that erupted in Gujarat in 2002. (...)

For Full Overview please click the following: (html/pdf)
Full Internal Displacement Profile