Uttam Kumar Das
[Advocate (Attorney at Law) in the Supreme Court of Bangladesh, is a human rights researcher, trainer and practitioner]
Bangladesh has a long history with refugees’ lives and experiences. The country became independent in 1971 that saw the creation of a great number of 10 million refugees (1 out of every 7 person of that time population in the territory) who had taken temporary shelter in neighboring India for nine months.
Since its independence, Bangladesh has been a refugee producing and hosting country at the same time. The decade-long unrest and militancy in the Chittagong Hill Tracts (CHT) had produced exoduses of displaced populations and refugees - a section of them crossed the border and took shelter again in India.
The history of the ethnic Rohingyas from the neighboring Myanmar (formerly Burma) seeking refuge in the territory of Bangladesh goes for more than centuries. However, their recent influx to Bangladesh following the ethnicity and religion-based persecutions on the Rohingyas by the military regime (in Myanmar) can be traced back to 1978 and 1991-1992. Those who came in 1978 could return in the following years through bilateral discussions and negotiations between Bangladesh and Myanmar. However, it is alleged that a good number of the then “refugees” had been forced to return; and most of them eventually came back to Bangladesh (in following years) taking advantage of porous borders.
During 1991-1992, a record number of 258,800 Rohingyas took refuge in Bangladesh. Initially, the Bangladeshi government registered them and provided them with shelter in temporary tents in the bordering districts of Cox’s Bazaar and Bandarban. Later on, the United Nations High Commissioner for Refugees (UNHCR) came into operation at the invitation from Bangladesh government.
According to official records, so far 237,000 Rohingyas have “voluntarily” returned to Myanmar. However, repatriation has been stalled since 2006. However, locals believe that most of the Rohingyas who are in the “Repatriation List” have eventually returned to Bangladesh and mixed with local population in the bordering districts of Cox’s Bazaar, Bandarban, and elsewhere like Chittagong, Barguna, and Patuakhali. Rohingyas are similar to some of the local population with regard to their language, ethnicity, and religion.
While officials of the government and UNHCR claim that there are now 28,000 registered Rohingya refugees in two government-managed camps, however other estimates of the number of Rohingyas in Bangladesh vary between 200,000 to 500,000. (None knows the exact number indeed).
Bangladesh is an exceptional country (like others in the region) which has been hosting refugees for years thanks to the excellent generosity of the government and people of Bangladesh. However, the management of refugee operation has been going on without any legal and policy framework. It has been on the basis of ad hoc measures, which sometimes becomes messy and discriminatory while extending protection to deserving ones.
Bangladesh is not party to the UN Convention Relating to the Status of Refugees, 1951 and its Protocol of 1967. As mentioned, there is also no national law dealing with asylum and refugees. It is Article 31 of the Bangladeshi Constitution that provides a flat-guarantee for the “equal protection of law” for a citizen and a non-citizen alike, as long as on the territory of the country. But this provision lacks a judicial interpretation which could be translated for the benefit of asylum seeker and refugee.
The Rohingyas are in fact, “granted refugee status” through an executive decision by the Government of Bangladesh. This is considered as “arbitrary or discriminatory” given the absence of any legal sanction. The same grant never happens to any other groups taking refuge in Bangladesh. However, the government of Bangladesh has reportedly set a “May 1994 cut-off date,” which means that no Rohingya entering Bangladesh after that timeline would get refugee status. If there is really such a decision that would clearly be a violation of the principles of the international refuge or human rights law and the Constitution of Bangladesh as according to Article 14 of the Universal Declaration of Human Rights of 1948 those who are fleeing persecution have rights "...to seek and to enjoy in other countries asylum from persecution". This persecution could be subjective or objective. However, there is no time bar on this.
Thus, in the absence of a framed law, there are reported discriminatory and arbitrary practices between and among the refugee groups on the ground. Sometimes, they are influenced by the vested interests of a section of relevant government officials or NGOs, local influences, presence of corruption, and abuse and misuse of powers among others. This is also dependent on which political party happens to be in power.
The role of UNHCR in Bangladesh is also not beyond questions. Some of its field level staff members are accused of discouraging refugees to repatriate. Under the so-called urban refugee program the UNHCR Office in Dhaka has been receiving and processing applications for asylum in Bangladesh (in the absence of a state-run mechanism this agency is doing this, and government has no monitoring and control over this). With regard to Myanmar, the UNHCR caseloads mainly comprise of Rakhine and Chin populations fleeing from persecution. The number is around 400.
However, it (UNHCR) is not allegedly processing any application from Rohingya asylum seekers from Myanmar despite there being valid reason/s to prove persecution. (UNHCR process application if someone introduces him/herself even as a “Burmese Muslim,” however, not as a Rohingya).
The UN agency is reportedly doing this referring to the “decision of the host government.” Then, questions arise that if so, why is UNHCR really here? Is the duty of UNHCR to comply with a “decision” of a government which is contrary to the norms of international human rights laws? This practice of UNHCR has amounted to the violation of the core principle of the UN’s Convention of 1951.
Given the limitations in the 1951 UN Refugee Convention, (which does not actually cover the complex refugee dimensions of the South, burden sharing, and emerging issues like the climate refugees), Bangladesh should look into the option of adopting a comprehensive national law on asylum and refugee supported by a well-structured policy framework. Also, there is a pressing need for a regional legal framework on asylum and refugee protection.
However, mere adoption of a law will not work unless it is implemented effectively. That is why there is a need for a pool of trained manpower to deal with the issue. This would range from judges, lawyers, members of law enforcement agencies, policy makers, academics, social workers among others.
Bangladesh should also look into registering all Rohingyas and other Myanmar nationals (nationals from other countries as well) staying on its soil. A section of the government officials believe that the registration of the Rohingyas would pave the way for more influx of the Rohingyas into Bangladesh leading to the international community to urge for their subsequent recognition as refugees. But this is ridiculous; that is why the officials concerned need to understand the matter through gaining knowledge on the subject, related to national and international laws and obligations, security and strategic issues, negotiation skills among others. Rohingyas are indeed residing in the territory of the country and surviving on our resources. Then, what is the problem in listing them. This listing (off course a comprehensive one with detailed profile) would pave the way for the government to bargain on related matters with counterparts including Myanmar.
Besides, the Rohingya problem is not merely a national issue of Myanmar and Bangladesh. It has both regional and international dimensions. That is why its solution also depends on regional and international approaches. Bangladesh should head for that direction.