COmparative Study on Refugy Law

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Comperative study on refuge Law: Bangladesh Prespective.



A comparative study on Refugee Law Introduction: One of the most difficult challenges confronting the world at the close of the 20th century is the problem of refugees and displaced persons. Greek writer Euripides nearly 2500 years ago coated that “there is no grater sorrow on earth than the loss of once native land” Ever since mankind has existed there have been refugees. But, the beginning of this century of the “homeless man”, the number of refugees has arisen significantly and an especially in its second half. It is the major concern of human rights law. The leaders of international community being of aware of this problem took various attempts to combat this problem. The 1951 Convention relating to the Status of Refugees and its 1967 Protocol remains central to international protection of refugees and may be supplemented by regional instruments that address specificities of refugee situations in the regions concerned. Bangladesh has been facing refugee problem from 1971, when more or less 10 million people of Bangladesh took shelter as refugees in India at the time of liberation war. The same thing appeared after 1990s that huge number of Rohingyas came from Burma (Myanmar) in Cox's Bazar of Bangladesh because of fear of life for religious and political causes that are under the criteria of Refugee Convention of 1951. Bangladesh is a developing country and facing numerous problems day by day. Else that Bangladesh has many limitations to host huge people as refugees that come from Myanmar or others.

Though, Bangladesh does not ratify the 1951 Convention Relating to the Status of Refugees and its Protocol of 1967, it facilitates the refugees under the international human rightsinstruments i.e. UDHR, ICCPR, ICESCR, CEDAW, CAT etc. Notably, Bangladesh has no legislative framework to protect or serve refugee or internally displaced person. The object of this paper is to evaluate the role of Bangladesh as a refugee hosting country that will include the refugees such as Rohingyas, Biharies etc., measures already taken for the protection of them and the necessity adopting legislative framework in Bangladesh. Recommendations to UNHCR and others will also be discussed. Finally, a conclusion will be drawn overall the research paper. 1. Refugee: Who are they? The refugee problem continues to challenge the international community. For this reason, at fist we have to know when people considered as refugee. And who can be able to treat as refugees and who can not be? Within the meaning of the 1951 convention a person maybe considered as a refugee as soon as he fulfills the criteria contained in the definition. Determination of the refugee status is a process which takes place in two stages. Firstly, it is necessary to assertion the relevant facts of the case. Secondly, the definitions in the 1952 conventions and the 1967 protocol have to be applied to the facts thus ascertains. The provisions of the 1951 convention defining who is a refugee consist of three parts, which have been termed

respectively “inclusion”, cessation” and “exclusion” clauses. The inclusion clauses define the criteria that a person must satisfy in order to be a refugee. They form the positive basis upon which the determination of refugee status is made. To be a refugee, four basic conditions must be met. The applicant must be (a) outside his country of origin; (b) have a well-founded fear of persecution; (c) this fear must be based on one of five grounds, e.g. race, religion, nationality, membership of a particular social group, or political opinion, (d) unable or unwilling to avail himself of the protection of that country, or to return there, for reason of fear of persecution. The exclusion clauses stipulate that the convention shall not apply to persons who meet the inclusion criteria, but who do not need or deserve protection. This would apply to a person receiving protection or assistance from organs or agencies of the United Nations other than UNHCR; or, a person who has committed a crime against peace, a war crime or a crime against humanity, a serious, common law crime prior to admission to the country of asylum - or an act contrary to the purposes and principles of the United Nations. The cessation clauses stipulate that a person shall no longer be considered a refugee if there has been a fundamental change of political circumstances in the country of origin enabling him to take up renewed residence there. 1.1 Refugees: Their Status

The term 'refugee' generally means a person who is in flight seeking escape 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 prosecution, deprivation, grinding poverty or from natural disasters, earthquake, flood, drought or famine or from war or civil strife.[1] The Refugee Convention[2] has accumulated some definitions prevailing in different international instruments from 1922 to 1946 and it tries to define a refugee in Art. 1(A) as “any person who, owing to 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, 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”.[3]But this definition is not yet free from criticism as it narrows down the ambit of the term, even though the definition refugee has dominated the arena of refugee law for the last 30 years. Some commentators have save that it does not include people as refugees who are internally displaced persons or who are deported or expelled from their own countries and some of home have been send to undertake forced labor or persons who are unable or unwilling to avail themselves of the protections of the government of their country of nationality or former residence3. The Cartagena Declaration on Refugees" extends the traditional refugee definition to include persons who have fled their country because their lives, safety or freedom have

been threatened by generalized violence, foreign aggression, internal conflicts, massive violations of human rights or oilier circumstances, which have seriously disturbed public order[4] 1.2 Refugee: Who is not The following groups of people may not claim the refugee status. (a) Persons who have participated in war crimes and massive violations of international humanitarian law. Even any person against whom there are serious grounds of suspicions of this nature will be excluded. (b) A soldier cannot be considered a refugee if he/she continues to pursue armed action against the country of origin from the country of refuge. A refugee is a civilian. (c) Persons who have been refused, under an equitable procedure, refugee status. A migrant who leaves his/her country voluntarily to seek a better life in another country is categorized as an ‘economic’ migrant and is not a refugee. 1.3 Essentials for being a Refugee: There are four fundamental elements: (a) they are outside the country of origin / nationality (b) they are unable or unwilling to avail themselves of the protection of that country or to return there (c) such inability or unwillingness is caused by a well-founded fear of being persecuted and (d) the persecution feared is based on race, religion, nationality, membership of a particular social group or political opinion.

With regard to race we must refer to the 1965 Convention on the Elimination of All Forms of Discrimination[5] which defines that practice to include distinctions based on 'race, color, descent, or national or ethnic origin'. Persecution on account of race has been the background of many refugee movements in all parts of the world. Religion has been one of the reasons for the movement of persons from one country to the other. Most glaring example was the persecution of Jews in Nazi Germany and only a small number could flee to other countries in early 40s. Article 18 of the 1966 Covenant on Civil and Political Rights[6] provides that "everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. Then comes the social group which could be factor of persecution. Often the feudal lords oppress the tenant-farmers. The intention is to protect a social group facing persecution. It has been considered that there could be three possible categories of social group a) by reason of gender, women may be subject to violence without any remedy in her country (b) human rights activists and (c) former dictators or capitalists[7] The last criterion of the Convention is fear of persecution because of political opinion Often the state authorities persecute a person for holding a political opinion unpalatable to the authorities. Article 19 of the 1966 Covenant on Civil and Political Rights states that "everyone shall have right to hold

opinions without interference". However this right is qualified by certain restrictions. In the definition of the refugee, the word "unwilling" to return to the country of origin has been used. Some writers11 hold the view that "inability" to return is of objective character while "unwillingness" based on a wellfounded fear of persecution is a combination of both subjective and objective factors. In both cases, if the refugees would be able to return to the country of origin, they might not return due to unwillingness because of subjective factors. 2. History: The concept of refugee or asylum seeker was found in Greece in the writings of Euripides and Sophocles during BC period. During the early Christian period, Roman emperors persecuted the Christians for their beliefs and many of the Christians used to hide in the underground chambers (catacomb) which were later utilised for burial of the dead Holy Prophet Muhammad (SM) had to leave Mecca for Medina during July and August 622 together with about seventy followers as his life was in danger. The refugees at the early 20th century were described by ethnic categories: Russian, Armenian, Assyrian, Assyro-Chaldean refugees from Saar (now within Germany). All these groups became uprooted and dispossessed by wars and social changes, massacres, persecution and fear. The first international arrangements that dealt with refugees, during the time of the League of Nations, were founded on the simple fact of their presence outside their

country of origin, and the denial or lack of its protection in fact or law. Although the numbers of refugees requiring assistance and protection in those days was significant, as a result of the aftermath of the First World War, the Russian Revolution and the collapse of the Ottoman and Austro-Hungarian empires, the majority were members of existing populations. The World War II (1939-45) set in motion hundreds of thousands of refugees. By 192 there were millions of homeless and displaced people in Europe 9 [8] After the Second World War, when a successor to the International Refugee Organization (IRO) was being discussed. Several countries argued, as many do today, for "internal refugees” to be included within its mandate, seeing no fundamental distinction between the needs of those who had and those who had not crossed an international frontier. The "compromise mandate” of the UNHCR agreed in December 1950 was not to go so far. States were only ready to recognize a limited category of refugees, when they finalized the text of the United Nation Refugee Convention in 1951. The Indian sub-continent saw the forced mass movement of people because of the changed political circumstances. In 1947 after the partition of British India, hundreds of thousands of Hindus and Muslims left their homes either to settle in India or Pakistan for fear of their lives because of communal violence. Hindus went to India and Muslims came to Pakistan. In 1948 when an Israel state was created out of the Palestinian land by the Western powers, thousands of Palestinian people had to leave their homes to other Middle East countries

Often it is found that the minority community has been subjected to discrimination and mal-treatment by the mainstream community. Because the minority community in every country is vulnerable to the domination of the majority community. The laws are not often strictly enforced by the organs of the state and as a result the minority community may fill insecure, even though the constitution and laws of the country do not discriminate the minority community. When the minority community fills insecure of their safety they leave the country of their origin for another country. The insecurity of life can also occur in the mainstream community if they do not subscribe to the views of the authority. 3. Types of Refugee: A ″convention refugee″ is a person recognised under the 1951 Convention Relating to the status of refugee and its 1967 Protocol. This person is recognised and protected by a state that is party to the Convention. When a person who meets the criteria of the UNHCR statute qualifies for the protection of the United Nations provided by the High commissioner, regardless of whether or not he is in a country as a refugee under either of these instruments. Such refugees, being within the High commissioner’s mandate, are usually referred to as ″mandate refugee″. When asylum -seekers arrive rapidly in large numbers—a situation commonly referred to as a "mass influx"—the authorities of UNHCR, as appropriate, may decide to determine eligibility for refugee status on a group basis. Such Convention or mandate refugees are known as prima facie refugees.

Sur Place Refugee is a person, who has left his country for reasons such as education, medical treatment or tourism but subsequently owing to well-founded fear of being persecuted, refuses or becomes unable to return to the country of origin. Stateless persons are those people who are not considered to be nationals of any state under the operation of its law. A stateless person does not need to show well-founded fear of being persecuted in his country for refugee status. 4. The Situation of Refugees in Bangladesh Since 1947, 30 to 40 million people have crossed borders in the region in search of refuge and almost ever country produced and/or received refugees.10 During the liberation war of 1971, one out of every seven Bangladeshis sought refuge in India. 11Again, failure to arrive at an 'acceptable solution' to the hill people's demand for a 'special status' for the Chittagong Hill Tracts (CHT) resulted in opting for a military solution. This conflict between the hill people and the government of Bangladesh led to a series of exodus of the hill people from Bangladesh to India. After signing of an agreement between the government and representatives of the political wing of the hill people, the Shanti Bahini, about 60,000 refugees returned to their homes in Bangladesh after 15 years in exile in India. Since independence, Bangladesh has been hosting around a quarter million stateless persons.12 Most of these people had their origin in the Indian State of Bihar and opted for the then Pakistan in 1947. Accordingly, they settled in the region called East Pakistan, which is now Bangladesh. Again, since independence in 1971, the country had to host about 250.000 refugees from the

Rakhaine State of Myanmar13 in 1978 and about a similar number in 1991- 92. The situation of refugees and/or stateless persons varies from group to group and is dependent upon Bangladesh's negotiations with the country or origin, or the country of which the refugees and stateless persons seek citizenship. 4.1 Rohingyas Refugees from the Rakhaine province (in Arakan) of Myanmar entered Cox's Bazar District in two major influxes, in 1978 and again in 1992. According to UNHCR data, a total of 22,133 refugees belonging to 3,781 families were kept in two camps at Nayanpara and Kutapalong in Cox's Bazar. A small increase of 673 persons in the refugee population was noted this year, but this was a result of an excess of births over deaths. 4.2 Repatriation UNHCR records show that repatriation of only 106 persons took place in 1998. Earlier a total of 229,485 persons belonging to 46,021 families had been repatriated between 1995-1997. From August 1997 to November 1998 repatriation was held back on several counts such as: Ø Resistance of refugees in the refugee camps to forced repatriation by government officials; Ø Clearance from Myanmar Government for family members received in separate batches, splitting families, and refugees being unwilling to leave without the rest of their family; Ø Refusal of the Government of Myanmar to extend the 15 August, 1997 deadline for their return; Ø Obstruction by militant refugees in the refugee camps to all repatriation initiatives;

Ø Absence of a bilateral understanding between Myanmar and Bangladesh regarding refugee repatriation. UNHCR has insisted that repatriation should take place voluntarily and that the returnees be made aware of their rights. On the other hand delays have been created by the absence of any agreement between the Governments of Bangladesh and Myanmar. Even though refugee flows tended to aggravate local unrest, the UNHCR was supposed to have requested the Government to accept new refugees from Myanmar.14 The conditions set by Myanmar have slowed down repatriation. A spokesperson of the Ministry of Foreign Affairs15 reported, in June, that they had submitted a list of 7,000 Rohingyas certified by UNHCR as volunteer returnees.16 Their repatriation was expected to be completed by February 1999. An agreement between the two governments was reached on 17 April, whereby refugees living in camps were to be enlisted by UNHCR in the Voluntary Repatriation Registration. Although the first list of refugees was submitted to the Government of Myanmar for clearance in April, permission to enter was only given on 25 November,17 with the proviso that only 50 persons could leave every week.18 The first batch of 46 persons was sent back on 26 November.19 In December 1998, only 11 families with 60 persons left in three weekly movements. To avoid being sent back, many refugees tried to leave the camps and merge with the local population. Several cases were reported of refugees fleeing from the camps and settling in nearby locations. In February 1998, 250 Rohingya families

traced in St Martins' Island were ousted from the island by the coastal guard of Bangladesh. In September 1998, a group of eighteen Rohingya women and children from Myanmar who had been detained while visiting Dhaka and subsequently held in "safe" custody in Dhaka Central Jail were admitted to Kutupalong refugee camp by the government on humanitarian grounds. The government maintains two camps at Nayapara and Kutapalong with UNHCR financial support. NGOs are assisting with 30 schools in both camps where 2,488 Rohingya children were enrolled. Only 32% were girls. Basic utilities. Basic utilities were also scarce with the user ratio for latrines at 1:22 in Kutapalong and 1:19 in Nayapara and for baths at 1:30 in Kutapalong and 1:37 in Nayanpara. Unhygienic conditions often lead to conflict and violence amongst refugees. This is likely to be aggravated if the UNHCR acts on its decision not give further financial support this year. The government was informed of this decision at a meeting reported on 2 nd February. Several non-government agencies provided support in health care, training for teachers and other facilities to the refugees. In addition academic and professional organisations arranged some training for management personnel and law enforcement agencies. 5. Situation of Stateless Person Prevailing in Bangladesh: An individual may be without a nationality knowingly or unknowingly. Statelessness is a situation where an individual cannot claim nationality of any State. The 1954 Convention Relating to the Stateless Persons20 describes in its Article 1

that the term 'stateless person' means a person who is not considered as a national of any State under the operation of law. A Bangladesh national has the rights and obligations under the Constitution and the laws of the country to receive protection from the government of Bangladesh. Because the nationality of an individual is a legal status by which the individual enjoys the benefits and protection of the State of the nationality. At any time if there is a breach of rights, a Bangladeshi national can seek redress either from administrative agency or judiciary while a foreigner cannot claim such totality of rights in Bangladesh. An individual without a nationality may be compared with a vessel having no captain to guide it. It only floats on the sea. Likewise an individual without nationality remains virtually without any legal protection of any State. The nationality is determined by the domestic law of the country. If an individual loses nationality he/she become Stateless. The Convention on the Reduction of Statelessness in 196121 was designed to reduce the Statelessnes. Article 1 of the Convention states that a State shall grant its nationality to a person born in its territory who would otherwise be stateless. It has been seen that when a State disappears, the refugee problem arises because the former State could no more give protection to the inhabitants of the State. A stateless person does not need to show well-founded fear of being persecuted in his/her country. In other words, different conditions apply for a stateless person to qualify for refugee status. After the emergence of Bangladesh in 1971, all persons born or living in the former territory of East Pakistan became

Bangladeshi nationals except the "Biharis" under the Bangladesh Citizenship law. (President's Order No. 249 of 1972 of the Government of Bangladesh). Many "Biharis" exercised their options to go back to Pakistan and, as such, they lost their Bangladesh nationality. "Stranded Pakistanis" refers to persons who opted for Pakistan in 1972, after the conclusion of the war. They remained in Bangladesh as stateless persons, because Pakistan did not take them back. The Disaster Management and Relief Ministry allocates about Taka 140 million for rations, electricity and drinking water for approximately 178,891 persons in thirteen camps, per year. Every three months the Ministry allocates 987 metric ton ration for 1,5529 persons. The issue of repatriation was raised in bilateral talks with the Pakistani Prime Minister during a business summit held in Dhaka on 15 January. In a subsequent meeting with the Stranded Pakistanis' General Repatriation Committee (SPGRC), the Pakistani Prime Minister promised to restart repatriation as soon as possible. But it was reported that, over the next three months, 932 families would be repatriated to Pakistan. The SPGRC appealed to the Government of Bangladesh to grant citizenship to stateless persons. It is argued that in the 26 years that elapsed following the war, the new generation, which has come of age want to remain in Bangladesh, they have no affiliation with Pakistan and are ignorant of Urdu. So, it could be argued that the "Biharis" in Bangladesh which are considered as stateless person, such Biharis can be considered as refugees because they identified themselves as

"Pakistanis" by choice and it is alleged that many of them collaborated with the Pakistani military regime. However, it is believed that their status as refugees did not receive confirmation by UNHCR because they did not come within the purview of the 1951 Refugee Convention. One of the principal criteria of a refugee is that he/she must cross the frontier of a State to another. It is argued that the "Biharis" lived and remained in the same territory before and after the independence of Bangladesh. Since Bangladesh has also been suffer the refugee problems so the question might be arise how are the refugees protected in Bangladesh? 6. Refugee Protection :Bangladesh Situation There is no consistent administrative framework governing state practice in providing asylum and refugees. Even Bangladesh is neither a signatory to any international or regional refugee instrument, nor has it enacted any legislation dealing with refugees. But Bangladesh can protect Rohingya (Refugees) under the principal of Non-refoulement. The word 'non-refoulement' is derived from the French word 'refouler' which means to drive back. In the context of refugee situation, no refugee or asylum seeker should be sent back to any country where that person is likely to be persecuted or in danger of his/her life. Non-refoulement is to be distinguished from expulsion or deportation where the person is required to leave or forcibly removed. The principle of non-refoulement has gained ground after the First World War. The refugees from Nazi Germany in 193638 activated the European countries to abide by this principle

the 1936 Arrangement22 concerning the Status of Refugees from Germany read: "refugees shall not be sent back across the frontier of the Reich". The 1938 Convention concerning the Status of Refugees fleeing from Germany' provided that States parties undertake not to drive back the refugees to German territory. Not all of the important rights for refugees are mentioned specifically in the International Bill of Human Rights. A central element of international protection is (lie right not to be forcibly returned or expelled to a situation which would threaten ones life or freedom. This is the principle of non-refoulement which is embodied in article 33 of the 1951 Convention. This Article states that “no contracting state shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion." Although Article 33. (1) Of the 1951 Convention provides the principle of non-refoulement, sub-Article (2) states that this right can be denied for reasons of danger to the security of the State. Article 32 of the Convention states that the States can expel a refugee lawfully on grounds of national security or public order. One recent example is the case of the Turkish Kurds leader Abdullah Ocalan. Ocalan (aged 50) fled to Italy from Syria under pressure of Turkey and could not find a place of refuge in Europe. The European countries refused him refuge on the grounds of public order and security of the State.

He finally had to gone to Nairobi (Kenya) with the assistance of the Greek government. However, he was caught in Nairobi in February 1998 by the Turkish undercover commandos. Ocalan was tried and sentenced to death by the Turkish Court. The Turkish government in January 2000 decided to put on hold the death sentence and allowed his lawyer to prefer an appeal to the European Court of Human Rights and the verdict is still awaited. Most observers believe that the Court is unlikely to confirm the death sentence as capital punishment has been abolished in Europe. It is not very clear as to what extent a person with a criminal record would constitute a danger to the community of a country where he/she seeks refuge the law is unclear and is still developing by State-practice. However there appears to be a consensus that the crime in question and the perceived danger to the community must be extremely grave so as to deny the person the refugee status while he/she is confronted with danger to his/her life. Each State retains the choice of methods of implementation of obligations under the 1951 Convention on Refugees read with the principles and purposes of the UN Charter. The evidence relating to the meaning and scope of nonrefoulement in its conventional sense also amply supports the conclusion that to-day this principle forms part of general international law. There is substantial, if not conclusive, authority to say that the principle is binding upon all states, independently of specific assent. State practice before 1951 is, at the least, equivocal as to whether, in that year, Article 33 of the convention reflected or crystallised a rule of customary

international law. State practice since then, however, is persuasive evidence of the concretisation of a customary rule, even in the absence of any formal judicial pronouncement. In this context, special regard should also be paid to the practice of international organisation such as the UN General Assembly and the UNHCR. Guy Goodwing-Gill likewise argues that the principle of non-refoulement should be considered to shelter a far wider range of persons in need than simply those who fit within the traditional refugee definition in 1951 Convention. Non-refoulement is applicable as soon as certain objective conditions occur. A state which returned foreign nationals to a country known to produce refugees, or to have a consistently poor human rights record, or to be in civil war or a situation of disorder, must therefore justify its actions in the light of the conditions prevailing in the country of origin. The very existence of a program of involuntary return should shift the burden of proof to the returning state when the facts indicate the possibility of some ham befalling those returned for any the above reasons23 And it could be said that asylum seekers and refugees are entitled to all the rights and fundamental freedoms that are spelled out in international human rights instruments. The protection of the refugee must therefore be seen in the broader context of the protection of human rights. The creation by States, in the aftermath of the Second World War, of two separate organizations to deal with human rights and refugees respectively, does not mean that these issues are not interrelated.

The work of the United Nations in the field of human rights and that of the High Commissioner for Refugees is inextricably linked in the sense that both entities share a common purpose which is the safeguarding of human dignity. The human rights program of the United Nations deals with the rights of individuals in the territory of States. The refugee organization was established in order to restore minimum rights to persons after they leave their countries of origin. If we consider the international obligation of the country in terms of human rights, especially those relevant to asylum seekers or refugees. Bangladesh is a State Party to major international human rights instruments Among them the significant ones are the Universal Declaration of Human Rights; International Convention on civil and political rights; International covenant on Economic, Social and Cultural Rights; Convention on the rights of the child; Convention on the Elimination All Forms of Discrimination Against Women (CEDAW); Convention Against Torture etc. Several provisions of all these international instruments oblige a Stale party to provide protection for asylum seekers and refugees. The country is also committed to the principle of nonrefoulement being party to the above mentioned instruments. The Declaration and Program of Action of the World Conference on Human Rights also reaffirmed the right of every person to seek and enjoy asylum. Generally international human rights instruments impose obligations on the state party to respect and to ensure all individuals within its territory the rights recognized in a given

instrument without distinction as to race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Bangladesh is, therefore, duty bound to respect and to ensure to refugees the human rights recognized in the above documents and applicable for them Apart from the refugee protection under the international instruments the refugees are also protected under the law exist in Bangladesh. 7. Law for the protection of refugees exist in Bangladesh 7.1 Constitutional Provisions and Practices: There is no a single provision in the Constitution of Bangladesh which directly deals with refugee protection. Despite this fact, the following provisions have direct and indirect bearing on refugee protection. Ø Fundamental Rights: The Constitution of Bangladesh has provided for two types of fundamental rights. One group of rights is granted only for citizens of Bangladesh exclusively and other group of rights is applicable for both citizens and non-citizens. Article 31 guarantees the right to protection of law for citizens and non-citizens. It provides that "To enjoy the protection of 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 person for the time being within Bangladesh, and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. 24

Therefore, the Constitution under Article 31 has clearly guaranteed the refugees right to protection law by extending the scope of right to protection of law to "every other person for the lime being within Bangladesh". This provision has also restrained government's unguarded power of expulsion of refugees by inserting that "no action detrimental to the life, liberty, body... ....of any person shall be taken except in accordance with law.” In a number of cases, the Supreme Court of Bangladesh has interpreted the principles laid down in Article 31 of the Constitution. I would like to venture on a few cases in this regard. In Abdul Latif Mirza vs. Bangladesh25 case the Supreme Court of Bangladesh explained the scope of Article 31 in the following way: " person shall be deprived of life or personal liberty saves in accordance with law. The principle of natural justice is inherent in every society aspiring for a civilized living and according to the third paragraph of the Preamble of the Constitution; the fundamental aim of the Slate is to "'ensure a society in which the rule of law, the fundamental human rights and freedom, equality and justice, political, economic and social shall be secured." The decision of the apex court clearly indicates that right to enjoy protection of law is a right applicable for both citizens and non-citizens which certainly include refugees. The Court states no person rather than no citizen shall be deprived of protection of law. In a very recent case (ETV Ltd. vs. Dr. Clwwdhury Mahmood Hasan) Supreme Court explained Article 31 and observed: "....... every person is subject to the ordinary law within the jurisdiction. Therefore,

all persons within the jurisdiction of Bangladesh are within rule of law." In this case, the Supreme Court has declared that yet protection of law is a fundamental rights of all persons be they are citizens or non-citizens (refugees). The decision has also reminded the obligations of citizens and refugees alike by subjecting then to ordinary law of the state. The constitution has guaranteed fundamental rights to life and personal liberty of every person whether she/he is a citizen or a foreigner who happens to be in the territory of Bangladesh the constitution enumerates that "No person shall be deprived of life or personal liberty save in accordance with law26 By incorporating the provision on protection of life and liberty of every person, the constitution has provided a basis for protection of refugees. It can be easily presumed that the framers of' the Constitution never intended to confine "life" within narrow meaning of right not be killed.” In Peerless General Finance and Investment Company Limited v Reserve Bank of India27 the Indian Code held that “right to life includes the right to live with basic human dignity with the necessities of life such as nitration, clothing, food, shelter over the head, facilities for cultural and socio-economic well being of every individual.” Therefore. By granting the right to life of every person, the constitution not only protects the refugees from arbitrary killing, but it also extends to their dignity and bare necessities of life.

The Constitution clearly indicates in Article 32 that restriction on personal liberty is permissible only on the ground of law. In Anisual Islam Mahmood v Bangladesh28 The Supreme Court held "...To curtail fundamental rights of personal liberty enshrined in the constitution, it is essential that the detaining authority must have reports and materials, that is jurisdictional facts for exercising power to detain the detune under the Special powers Act.” The Constitutional scheme has provided for safeguards as to arrest and detention of every person including refugees. Article 33 states that "No person who is arrested shall he detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and he defended by a legal practitioners of his choice.” 29The same article further requires the detaining authority to produce the arrestee before the nearest magistrate within twenty four hours of such arrest. Refugees have been protected form exploitation resulting from forced Labour. All forms of forced labour are prohibited by the Constitution. Any act in contravention of this provision is punishable offence.30 Article-35 provides for certain rights in respect of trial and punishment of refugees. These rights are protection against expost facto laws, double jeopardy, torture or cruel, inhuman or degrading punishment or treatment. The Constitution also guarantees the right to, speedy; and public trial by an independent and impartial court. Enforcement of fundamental rights enshrined in the Constitution is declared a fundamental right in itself.31 According to Article 102 of the Constitution.; any person

aggrieved may file application before the High Court Division for enforcement of fundamental rights enunciated in part III of the Constitution. After the decision of Dr. Mohiuddin Farooque v Bangladesh case, 32 the concept of aggrieved person has widened to such an extent that any person now can file writ petition before the High Court Division in the form of public Interest Litigation (I'll.) for the cause of refugees. In this case the Supreme Court held: "...... that the expression 'person aggrieved' means not only any person who is personally aggrieved but also one whose heart bleeds for his less fortunate fellow beings for a wrong done by the Government or a local authority in not fulfilling its constitutional or statutory obligations. It does not, however, extent to a person who is an interloper and interferes with things which do not concern him.” Part II of the Constitution of Bangladesh enumerates certain Fundamental Principles of State policy (FPSP). These principles have been declared as guiding star for overall governance of Bangladesh. They shall be guide in law making, in interpretation of the constitution and other laws and other works of the states. Article 11 has direct bearing on the protection of refugees. it slates that "the Republic; shall be democracy in which fundamental human rights and freedoms and. respect for the dignity and worth of the human person shall be guaranteed." Refugees by definition are the worst victims of despicable forms of violation of human rights or their rights are under severe threat of' violation. They belong to the human

species who are longing for the restoration of their dignity Constitution imposes obligation on the government of Bangladesh to provide free and compulsory education to Bangladeshi children and to the refugee children. Article 17 provides for: “The state shall adopted effected measures for the purpose of“(a) establishing a uniform, mass-oriented and universal system of education and extending free and compulsory education to all children to such stage as may be determined by law," Government of is duly bound to promote international peace, security and solidarity through non-interference in the international affairs, peaceful settlement of international disputes and respect for international law and principles enunciated in the United nations Charter. 33UNHCR mandated for refugee protection, has been created under the UN charter. International refugee law regime is a distinct branch of international law. By undertaking constitutional obligation to respect international law and principles enunciated in the UN charter, Bangladesh has undertaken the responsibility to protect refugees. Besides the Constitutional protection of refugees, there are other laws under which refugees are also be protected. Such laws are as follows: Ø Penal Code: According to section 2 of these codes, every person with in the territory of Bangladesh is subject to the jurisdiction of criminal course and tribunals Constituted for administering criminal justice in Bangladesh. Therefore, refugees who are

victims of criminal offence are entitled to seek remedy before appropriate criminal codes of tribunal. Ø The Code of Civil Procedure, 1908: Section 83 of the code states that citizen of Bangladesh and alien friends residing in Bangladesh can always file suits in the civil courts for establishing their civil rights. And enemy alien, however, can not file a suit without the permission of the government. Unlike criminal case, a refugee can get remedy from our civil courts for infringement of her/his civil right but a refugee from and enemy state is required to have prior permission for seeking redress Ø The Bangladesh Citizenship(Temporary Provisions) Rules, 1978: These rules deal with granting of permanent residence and citizenship to any person seeking right of permanent residence in Bangladesh or citizenship of Bangladesh. Boat the applicants seeking for citizenship of permanent residence have to fulfill a number of conditions prescribed in sections 3 and 4 (B) of the Rules Ø The Foreigners Act, 1946: The purpose of this act is to regulate the entry of foreigners into Bangladesh, their presence therein and their departure there from. According to section 3 of this Act, “the Government may by order make provisions, either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribe class or description of foreigner, for prohibiting, Regulating or restricting the entry of foreigners into Bangladesh or their departure there from on there presence or continued presence.” 34

Although in Bangladesh there are some kinds of legal framework for the protection of refugees, but Bangladesh is not a party in any international instruments especially in1951 Convention and its protocol for the protection of the rights of refugees. And Bangladesh Government attributes many reasons for the non-excision of 1951 convention and 1967 protocol. 8. Reasons for Non-accession of 1951 Convention & 1967 Protocol: According to an35author, the definition of refugee in the 1951 Convention is regional rather than universal. There is a view that the Convention is a product of the cold war and is Eurocentric. The definition of a refugee is too restrictive in the contemporary context and does not meet the today's needs. The Convention had left out, among others; two important elements-it is silent on voluntary repatriation of refugees and does not dwell on the responsibility of the State that causes the flow of refugees. Although the definition of the 1951 Convention was modified by the 1967 protocol in favor of a broader scope, many writers argue that the legal regime under the Convention remains narrow partly because the expansion of the mandate of UNHCR has no corresponding expansion of the obligation of States under the 1951 Convention. This implies that while the mandate of UNHCR has been amended, no amendment of the Convention has taken place. Furthermore, the 1951 Convention is based on the concept of durable asylum or permanent re-settlement. It puts emphasis

on protection and resettlement of the refugees and does not refer to their voluntary repatriation. As earlier stated, the criteria used for the definition of a refugee in the 1951 Convention are too restrictive. The definition does not include situations, such as foreign aggression, armed conflicts or civil wars, escape from extreme poverty, mass uprooting of a population resulting from ruthless government policies, wrongful prosecution of a person, a total break-down in the state system, natural disasters including the leaking of radiation from a nuclear plant, general violence in the community and massive violation of human rights Bangladesh is located in the South Asia Region. South Asia hosts the forth largest concentration of refugees in the world constituting roughly about 12% of the total refugee population of the World. 36Refugees in South Asia are from booth within and outside the Region. None of the South Asian Countries are party to the 1951 refugee convention, nor do they have Regional Mechanism, nether a national law. Refugees are treated on the basis of administrative convenience, political experience and ad hock administrative rules. Several reasons have been assigned against framing of a national law on refugees. It has been argued that .the existence of such a law may open the flood gates for refugees. There is no empirical evidence to validate that a legal structure would create condition for refugee flows. Past experience in the region and beyond Inform, us that when conditions of flow of refugees are created in the country of origin they would flee anyway. Refugees do not wait to sec if structures and incentives are in place when they flee for their lives and

liberty. After all, In 1971 In the wake of the Pakistani military crackdown when millions of Bengalis crossed over to India, no one among them checked to see if India had a refugee law. In its opposition to framing national law some argue that refugee law principles have been designed and Imposed by the West and hence there is no reason why Bangladesh should frame such a law. It is true that 1951 Convention was made for refugee flows in Europe. Subsequently, the 1967 protocol universalised its scope and 150-odd countries have already ratified the Convention. These include African, Latin American and some Asian countries as well. This, therefore can no longer be considered as a western ploy. Legislators in Bangladesh, of course, can always improve on the existing law, taking in view the specificities of the country context, such as resources available. Bangladesh Is party to other international conventions and instruments such as CEDAW, CRC and .the Universal Declaration of Human Rights. Those instruments bind Bangladesh not to send people, including women and children, back to the countries of the origin where their life and liberty could be at stake. The Eminent Persons Groups of South Asia at its meeting held in 1997 in Dhaka agreed on a Model Law on Refugees. The model law has expanded the scope of the definition of refugees and addressed the issue of asylum, mass influx, and voluntary repatriation. This law could be a basis for consultation among legislators, experts and other stakeholders. Following such a consultation process, the matter may be taken

up by the Parliamentary Committee on Home Affairs, Foreign Affairs or Disaster Management. The main arguments that the government of Bangladesh have advanced from time to time to justify its position for nonsigning the convention or protocol are: (a) No country within the Indian sub-continent became a party to the Convention, (b) Once Bangladesh is a party to the Convention, it will be legally obliged to accept refugees from other countries and (c) Bangladesh is not only an over populated country but also is a poor country and to take such obligations under the Convention could be difficult and onerous. (d) The Convention is Euro-Centric in nature. More over, it deals with political refugees and do not address many other situation. (e) The problems relating to refugees can be better dealt with through bilateral means. (f) Accession to Convention and Protocol may invite undue intervention by UN agencies. (g) Accession may put strain on limited resources of the country. (h) Accession may create an opportunity for economic migrants to abuse the system. (i) It may encourage evasive tendency of the rich countries of the North as to refugee situation in poor South. (j) There is a claim of a hospitable history of refugee Protection. Although there are several reasons for non-excision of 1951 convention and 1967 protocol. But there is a need to

develop a legal regime for the protection of refugees in Bangladesh. 9. What is UNHCR? UNHCR is the Office of the United Nations High Commissioner for Refugees. It was created by Resolution 428(V) of the General Assembly of the United Nations, and began its operations on 1 January 1951. It is a humanitarian and strictly non-political agency devoted to protecting and assisting the world's refugees. In the words of the Statute of the Office, UNHCR has two main functions: to provide "international protection" to refugees and to seek "permanent solutions" for the problems of refugees. The mandate of the office of the UNHCR is to ensure that governments to take all actions necessary to protect refugees, asylum-seekers and other persons of concern who are on their territory or who are seeking admission to their territory. It is the sole international organization that has been mandated by its Statute and subsequent General Assembly and ECOSOC37 resolutions, to protect refugees globally, also to strive to secure durable solutions for refugees so that they can resume their normal life. 9.1 The role of the UNHCR in Bangladesh: First, in 2006, the government agreed to allow UNHCR to construct new shelters for refugees in both camps, recognizing the abysmal conditions of the current structures which fall below international standards. The maintenance of the shelters built in 1992 had been restricted by the government to the bare minimum for fear of promoting any form of permanent presence of the refugees. Since that agreement was reached,

UNHCR has been successful in starting to raise funds – and construction in the two refugee camps has begun. It is hoped that both camps will have new accommodation facilities by end of 2009. A second major recent achievement was that, for the first time in the history of UNHCR’s operation in Bangladesh, resettlement to a third country was used to provide protection and a durable solution for some. Twenty-three refugees were resettled to Canada in 2006 and a further 79 in 2007. The agreement to re-settle was piloted by UNHCR in part to lobby the government to allow more skills training and enhanced education facilities. As a consequence, the government in 2006 agreed to allow skills training and an increase in the number of courses as well as the grades taught in schools. Although this progress still does not reach the level of international standards, it certainly points in the right direction. Since the first successful resettlement to Canada, resettlement for those refugees in urgent need of protection has been negotiated with other interested countries; both New Zealand and the UK have confirmed an intake for 2008. A further development of great significance has been agreement with the Government of Bangladesh in 2006 to allow other UN agencies and NGOs to work in the refugee camps, bringing expertise in the different sectors. UNHCR Bangladesh has made its position very clear that the status quo is simply untenable. The provision of external assistance for a period of 16 years without progress to, and attainment of, self-reliance is contrary to the principles of

refugee protection, human rights and human dignity. The need to engage in dialogue with the Government of Bangladesh and other stakeholders to discuss durable solutions for the Rohingyas continues. It is too early to predict the outcome of discussions but what is extremely positive at this stage is that both UNHCR and the government agree on the importance of taking a more holistic longer-term perspective to resolving the plight of the Rohingya refugees. Persons of concern of UNHCR in Bangladesh: 38 Persons of concern Types of Origin Total Of Percent fe Perce populati whom male nt on assiste under d by 18 UNHC R Refugee Myanm 28,60 28,300 52 59 ar 0 Various 30 28 10 People Myanm 200,0 in a ar 00 refugeelike situation Total 228,6 28,300 30

10. Case Law Relating to Refugee:

A Successful Case is made for Granting Refugee Status to a Woman Fleeing Her Own Country to Protect her Daughter from Female Genital Mutilation Elizabeth’s Case: 39 The case at issue involves Elizabeth Kuma, a national of Ghana and member of the Ewe tribe, who along with her son and [10]daughter, arrived in Hong Kong in 1996 and sought temporary asylum there. The basis for her claim was that Elizabeth had a real fear that her daughter (age 3) would be subjected to female genital mutilation in her own country at the insistence of her husband’s family. Elizabeth’s husband, Stephen Boateng, was an Ashanti Muslim, of the Wala tribe who had come from the State of Wa, in northern Ghana. In February 1996 when Stephen’s mother who had a great deal of influence in the family, told her son that his daughter would be "circumcised". Elizabeth had heard from other women in her community about the harmful effects that FGM could have, and had known another mother whose child had died during the procedure. She told her husband that she was opposed to it, her husband beat her. Because of a deep reluctance by the authorities in Ghana to intervene in family matters, Elizabeth never considered going to the police for protection. Elizabeth, fearing for the safety of her daughter, went to Cairo along with her daughter and her son (age 5). Her husband followed her to Cairo and ordered Elizabeth to return to Ghana. When she objected, he again beat her and threatened

to kill her if she did not return to Ghana or hand the children over to him. Then Elizabeth went to Canada via Hong Kong, She arrived at Kai Tak Airport in Hong Kong on 25 May 1996 and was allowed to enter the territory. Four days later when at the airport on their way to Canada, she and the children were challenged over the passports. Elizabeth and the children were arrested, detained in Hong Kong. Fortunately for Elizabeth and her two children, she wasn’t detained pending her removal from Hong Kong. She was given conditional release and allowed into the community. Then the Director of Immigration issued a removal order. She made a submission to the United Nations High Commission for Refugees. In her submission, Elizabeth cited the case of Khadra Hassan Farah. Elizabeth argued that FGM has been accepted in the decided cases cited above as persecution. The UNHCR concludes that, "a woman can be considered to be a refugee if she or her daughters/dependants fear being compelled to undergo FGM against their will; or if she fears persecution for refusing to undergo or allow her daughters to undergo the practice". Following the decision, the UNHCR made a request to the Hong Kong Immigration Department that she and her two children should be granted temporary asylum in the territory. Chan vs The Minister of Immigration: 1989: High Court Facts of the case: Chan Yee Kin is a citizen of China and was a member of a faction of Red Guards which lost the struggle for control of that organisation in his local area. He was questioned by

police and was detained for 2 weeks in 1968. He tried to escape but was caught and received increasing periods of detention. In 1974 he escaped to Macau and stowed away on a ship to Australia which he entered illegally in 1980. He applied for refugee status on 29 November 1982. He was refused the status of a 'refugee' within the meaning of the 1951 Refugee Convention. He challenged the decision to the single judge of the Federal Court. The Court set aside the decision of the Immigration department and referred to the Minister for reconsideration. The Minister appealed to the Full Federal Court against the decision. The Full Federal Court upheld the appeal. Mr Chan went to the High Court against the decision of the Full Federal Court. Decision: The court held that the definition of a 'refugee' involved a mixed subjective and objective test. The question whether or not a person had the status of a 'refugee' within the meaning of the 1951 Convention was one of determination upon the facts as they existed when the person concerned sought recognition as a 'refugee'. The Court held the 'persecution' was not defined in the Convention, although Articles 31 and 33 of the Convention referred to those whose life or freedom might be threatened. There was a general acceptance that a threat to life or freedom amounted to persecution. Some would confine persecution to a threat to life or freedom, whereas others would extend it to other measures in disregard of human dignity. Comment: This case is important as it dealt with the interpretation of the definition of a 'refugee' as stipulated in the 1951

Convention. The definition, according to the Court, needs both subjective (mental) and objective (facts) test. Turkish national vs Minister of Interior of Austria: Administrative Court: 1980 Facts of the case: A Turkish national applied for asylum in Austria under its Asylum Act on the ground that he belonged to the Christian minority and he and his family were being persecuted by the Muslims in his country of origin. The application was refused. He made an appeal to the Interior Ministry which turned his appeal down. The ministry stated that criminal activities against the applicant are not persecution and the applicant could have found safety from such criminal activities in other parts of Turkey. He lodged an appeal to the higher Administrative Court against the decision. Decision: The Court dismissed the appeal holding that the applicant did not have a well-founded fear of persecution within the meaning of 1951 Refugee Convention. The Court held that a well-found fear of persecution existed only when on an objective basis it would become clear that the conditions concerning the grounds of persecution mentioned in the Convention were such that a further stay of the claimant in the country of origin had become unbearable. Such would be the case when persecution was carried out by the state on its entire territory or where persecution was carried out by a part of the population but where the state was unable or unwilling to protect the persecuted. The applicant had not based his claim on such circumstances but only on persecution suffered in his village of origin. It had not been established that

the Turkish authorities were unable or unwilling to provide protection. Comment: It appears that the allegation of persecution is to be substantiated by the states inability or unwillingness to provide protection. Secondly, the allegation of persecution on account of religion should not be confined to a particular area. It could cover the entire country so that the applicant could not be safe in the country of his nationality. Romanian national vs Ministry of Interior: 1991 Administrative Court Facts of the case: A Romanian national belonging to the Hungarian minority asked for refugee status in Austria in January 1991. He claimed that he had been maltreated by the police during a demonstration in favour of education in his native Hungarian language; he had in general suffered discrimination because of his ethnicity and had lost his job to an ethnic Romanian. The application was unsuccessful on the grounds that social and economic rights such as the right to work were not a basis for persecution within the scope of the 1951 Convention. He lodged an appeal to die Federal Administrative Court . Decision: The Court referred to Austrian legislation requiring the authorities, when making decisions, to summarise all factual findings which influenced the decision. The authorities had not done so and for that the decision was flawed. In particular, no mention had been made of the reasons for refusing the claim based on maltreatment the applicant had suffered from the police during the demonstration. In case the

authorities had taken the maltreatment into consideration, their decision might have been different. The Court upheld the appeal and annulled the decision refusing the claim of refugee. Comment: This case was decided mainly on non-compliance of procedures laid down by the law by die Ministry. It was a breach of natural justice not to have followed strictly the requirements of the law. Further, the case was not looked at by the Ministry from all facts stated by the applicant. Ghanaian national vs Interior Ministry: 1986: Civil Court in Liege Facts of the case: A Ghanaian woman and her son arrived and applied for refugee status in Belgium. She submitted photocopies of their birth certificates but UNHCR found the copies inadequate and she was served an expulsion order. She appealed to the Civil Court against the order of expulsion. Decision: The Court held that the burden of proving one's identity when applying for refugee status rested on the applicant. In the present case the applicant was able to present photocopies of their birth certificates and they were found to be insufficient. The Court found that taking into particular circumstances surrounding the applicant's claim for refugee status, the photocopies and statements should satisfy the requirements. The Court suspended the expulsion order. Comment: The case rested on the sufficiency of evidence of the identity of the applicant. It appears that some flexibility

must be shown to submit proof of identity of a person and photocopies of the documents were held to be sufficient. David Hellman vs. Immigration Review Tribunal: 2000 Federal Court Facts of the case: David Hellman is a 17-year-old American citizen. His parents were divorced and his father migrated to Australia and became an Australian citizen while his mother remained in the US. David came to Australia because he wanted to escape from his mother who was described as an enthusiastic follower of orthodox Jewish sect. He sought refugee status on the basis that he feared assaults and abuse, being forced to become a priest, and being taken to a foster home. He also alleged that he might be harmed because of his knowledge of criminal conduct by members of his mother's religious community. His application for refugee status was rejected by the Immigration Department. He filed an appeal to the Immigration Review Tribunal. The Tribunal found that David Hellman had a well-founded fear of persecution but not that was because of his membership of a particular social group. Persecution on account of his particular social group would have satisfied one of the criteria of the 1951 Refugee Convention. The Tribunal further held that being a member of the Hellman family and having beliefs different from those of his mother did not amount to membership of a social group. Nor did the Tribunal accept that US authorities had failed to protect him. The Tribunal confirmed the decision of the Immigration

Department. He there-after lodged an appeal to the Federal Court. Decision: The Court could not find any error in the Tribunal's reasoning and conclusions and rejected the appeal of David Hellman. Comment: This case rested on the proof that David Hellman was a member of a particular social group and on account of that he had a well-founded fear of persecution. He could not prove that he belonged to a particular social group. Further, he was a US citizen and the US authorities would be able to protect him from his mother. He had no case to stand on in the facts presented to the Court. Iranian national vs Secretary of State: 1994: Immigration Appeal Tribunal Facts of the case: The applicant was a female 15 years old Iranian when she arrived in the United Kingdom and sought refugee status. The basis of her refuge was the physical abuse by her father. Having initially been refused refugee status, the Adjudicator granted her status. The Secretary of State appealed the decision to the Immigration Review Tribunal. Decision: It was argued on behalf of the Secretary of State that the applicant could have availed herself of the protection of Iranian authorities. The Tribunal found that women could not per se constitute a social group and she was not persecuted as a member of a social group within the definition of a refugee under the 1951 Convention. The appeal was allowed and the applicant was disqualified from refugee status.

Comment: The applicant was refused refugee status because the Iranian authorities could have given protection against violence from her father as it was found that her father was an alcoholic and the violence was alcohol-related. Sri Lankan national vs Immigration and Naturalisation Service: 1989: US District Court: District of Colorado Facts of the case: The applicant is a Sri Lankan female of Tamil origin. She had not been politically active but occasionally supported Tamil militants with food and money. After her home was destroyed in crossfire, she left Sri Lanka for India where she remained 18 months. She sought refugee status in India and failed to obtain it mainly because seven of her nine children were residents in overseas, one of them was in Canada. She obtained forged travel documents to travel to Canada to live with her daughter. On her way to Canada, she stopped in the United States, in November 1988. She applied for refugee status and the US immigration and Naturalisation Service (INS) refused. Thereafter her efforts with the Immigration Judge and the Board of Immigration Appeals were unsuccessful. She lodged a writ of habeas corpus with the District Court for her refugee status. Decision: It was contended that she did not obtain refugee status in India and because of the ongoing conflict between the Tamil and Sinhalese she feared persecution by the Sinhalese. She relied on the objective and subject test of fear of persecution.

Moreover, there was no evidence whether forced evacuation from her village had been applied to Tamils only and it did thus not constitute past persecution. The Court denied the petition and upheld the decision of Board of Immigration Appeal's decision. Comment: This case rested on facts. First her facts were weak and second her children were not in the States. She could have gone to Canada and sought refugee status. Bahadori vs Immigration and Naturalisation Service : 1991 : US Court of Appeals, Ninth Circuit Facts of the case: An Iranian national, Bahadori entered the US on a non-immigrant visa student visa in 1978 at the age of 15. His father was Muslim but his mother was Catholic. He became a Christian in the US. In 1936 he was convicted of possessing cocaine for sale and sentenced to 3 years probation, three months in jail and a fine of $150. In 1988 he was convicted again for stealing $1,500 in money orders. When he faced deportation he sought refugee status since his act of conversion to Christianity would be considered as apostasy in Iran and would be subject to persecution. He also referred of persecution his family faced there. The immigration Judge had reservations about the sincerity of his religious persecution claim and his drug offences were serious in nature and dismissed his claim. Bahadori appealed to the Board of Immigration Appeals and presented 200 pages of additional evidence to support his claim. The Board dismissed his appeal. It held that the applicant had not ever actually converted to Christianity and thus faced

no threat of persecution. The Board also took account of his convictions of crimes. Bahadori lodged an appeal to the Ninth Circuit Court of Appeals. Decision: The Court found the evidence to have established a clear probability of persecution since conversion to Christianity was considered a heinous crime in Iran which would entitle him to the suspension of deportation. The same evidence demonstrated that a well- founded fear of persecution existed making him eligible for refugee status. Burmese nationals vs the State Government of Manipur: 1990: The Gauhati High Court, Imphal Branch Facts of case: Eight Burmese (Myanmar) nationals, aged from 12 to 58 entered the state of Manipur in eastern India and they were detained for their illegal entry in Manipur jail. They petitioned to the High Court for their release to enable them to seek the assistance of UNHCR office in New Delhi for the status of refugees. Decision: The High Court held that the refugees had a right to be protected against deportation under international law. The Burmese had fundamental rights guaranteed under the Constitution of India (Articles 10, 21 and 22) The Court rejected the argument of the Manipur state government that they were not in a position to take the Burmese persons to UNHCR New Delhi office for the purpose of obtaining refugee status. To enjoy the rights by the petitioners, arrangements should be made for them to go to New Delhi and a person should accompany them.

The Court ordered the release of all the Burmese nationals to enable them to go to New Delhi for status determination. The Court further ordered that they should report to a named police station upon arrival in New Delhi. Comment: Refugee seekers who enter Indian illegally should be permitted to approach the office of UNHCR in New Delhi for status determination. They could riot be sent back (principle of non refoulement incorporated in the 1951 Refugee Convention) although India was not a party to the Refugee Convention, the High Court held that deportation could not be done under international law. It appears that the Court regarded the principle of non-refoulement as part of the customary rule of international law and, as such, it was binding on India. This precedent is important as Bangladesh High Court Division of the Supreme Court may be guided by the decision in a refugee case. 11. Reasons Need for Developing a Legal Regime for the Protection of Refugees in Bangladesh There are several reasons why national law should be framed. The first and foremost among them is that a distinction must be made between people who cross borders for economic opportunities and those who do so for fleeing persecution. In order to make that distinction, necessary structures need to be in place that can only be attained through national legislation. In most cases, refugees are dealt with on an ad hoc basis. The absence of law contributes to compounding of problems by depending on this type of approach. There is a need for appropriate legal and institutional structures so that refugees

and asylum seekers can be dealt with In an organised manner. Structures based on law would mean better management, efficiency, transparency and accountability. A national law will better equip the stale to face problems that it may have to face from time to time. Bangladesh Is constitutionally bound to frame such a law. Articles 31, 32, 33, 34 and 44 of the Bangladesh Constitution have given a large number of rights to non-citizens as well. Article 31 states that apart from citizens every other person for the time being within Bangladesh has "the right 10 enjoy the protection of the law and to be treated in accordance with law and only in accordance with law..,” Despite such explicit declaration Bangladesh is yet to develop a legal framework for refugee protection. If Bangladesh has a legal-structure in place to deal with asylum seekers and refugees, then its act of considering and granting asylum would be acts in 'fulfillment of its own national law. This would protect Bangladesh from likelihood of charges of indulging in unfriendly acts by the states of the origin of the person/s concerned. Bangladesh can rightly claim granting asylum is in conformity with its own national legal obligation. In general, Bangladesh's own treatment of refugees has been respectful to international principles. However/the reality is that Bangladesh has yet to accede to the international refugee instruments, the 1951 Convention and 1367 Protocol. There is also the absence of any regional refugee instrument such as the OAU Convention of Africa, and the Cartagena Declaration of Latin America. Because of some refugee problems prevailing in Bangladesh there is a need to develop a legal regime.

We know, Today Bangladesh hosts approximately 28,000 Rohingya refugees in the two camps of Kutupalong and Nayapara in its southern Cox Bazaar district. These are the Rohingya remaining from a wave of a quarter of a million who fled to Bangladesh in the early 1990S due to brutal persecution by the Burmese authorities. About 230,000 from that group were repatriated to Burma, with reports indicating many involuntary repatriations. The Rohingya currently living in the two camps refuse to go back to Burma citing fear of severe reprisals. There is also a large Rohingya population living outside the camps, estimated to be between 100,000-200,000. It is believed that many among this non-camp population returned to Bangladesh after being repatriated to Burma. They report coming to Bangladesh to escape arbitrary cases launched against them by local authorities. They also cite an inability to make a living due to severe travel restrictions that prevent them from leaving their villages to access employment, markets, education and medical care. The Rohingya are required to carry out compulsory sentry duty at night, for which no compensation is provided, and have to do forced labor during the day. For Rohingya youth getting married is a huge problem as they first need permission from local authorities. The permission is usually granted after payment of large bribes of 50.000-100,000 Kyats (USS 50-100], which are too much for most people to pay and sometimes after a promise that the married couple will have no more than two children. At present, four UN agencies and seven international NGOs are providing humanitarian assistance to the Rohingya community in Burma. UNHCR only has two expatriate staff in

northern Rakhine State who is based in the townships of Maundaw and Buthidaung. Rohingya far away from these areas cannot reach them due to travel restrictions, and the agency's local staff face intimidation from the Burmese authorities and thus arc generally not in a position to assist people facing violations. A Rohingya man who was repatriated to Burma in 2003 and returned to Bangladesh two years later to escape an arbitrary case told Refugees International. “I believe that if I could reach UNHCR's expatriate staff, and have them investigated the problem I had been facing, local authorities would have stopped harassing me and I would not have to leave everything behind and flee to Bangladesh.” In Bangladesh, the situation of the camp-based Rohingya is unbearable, largely due to the attitude of the government. Bangladeshi authorities prevent international agencies from carrying out improvements in the camp facilities fearing that a humane camp environment would attract more Rohingya to their country. Shelters have not been repaired for years; the huts have been eaten by termites and shrink more into the ground each year. Refugees have been receiving rations from the World Food Program since their arrival in Bangladesh. However, because the government prohibits refugees from engaging in income generating activities, many refugees sell part of their rations to the local Bangladeshi community living near the camps in order to purchase spices, vegetables and meat. Rations are also sold to meet non-food needs such as clothing and medical expenses. The refugees are often at a disadvantage during the ration trade and are vulnerable to exploitation by

local strongmen who have a monopoly on purchasing rations at low prices. Despite a rapidly increasing population of children in the camps, there is a huge gap in the education sector. The size of the average Rohingya family in the camps is estimated at 6.8 and around 650 children are born in the camps each year. Due to government policy, education does not extend beyond the fifth standard and there are severe shortages of qualified teachers and books. The literacy rate in the camps is 12%. Also, there are virtually no recreational or skills training activities for the camp residents, Earlier this year 2006, the refugees stressed that medicines were in short supply and not easily available at the camp clinics, and doctors were refering only a few patients to hospitals outside the camps. Women's ability to participate in camp life is restricted as the Rohingya's traditions limit the engagement of women in activities outside the home. The government prohibits the refugees from establishing their own management committees to oversee service delivery in key sectors like food management, water, sanitation, health and education. The refugees say they have no place to live in dignity: their lives would be in jeopardy if they were to return to Burma and life in the camps is miserable. UNHCR has been exploring the possibility of local integration for the population, but this is unlikely anytime in the near future due to strong opposition from the Government of Bangladesh. Any solution to the protracted refugee situation of the camp-based Rohingya would likely involve a burden-sharing arrangement under which at

least some of the refugees would have to be accepted by a third country for resettlement, For the above reasons the International community and others have considerate the track record of Bangladesh and other South Asian States in dealing with refugees as satisfactory to some extended. 12. Recommendation If we consider the above following reasons then it could be argue that the framing of law on refugee protection in Bangladesh and other South Asian States are necessary. The framing of law on refugee protection can be done in three ways by according to international refugee instruments, by developing a regional instrument for Bangladesh and other states of South Asia and/or by framing national legislation. I. Accession to International Instruments: The basic instruments of international refugee protection are the 1951 Convention Relating to the Status of Refugee and its 1967 Protocol. Accession to the convention can provide civil society institutions with a basis from which to campaign against any violations of the conventions (nationally, regionally and internationally) and provide South Asian states with a legitimate base from which to exert pressure on Western countries to dismantle the non-entrée regime II. Framing of a Regional Instrument: Regional instruments constitute another important structure of refugee protection. The OAU Convention of 1969 reflected the frame of minds of political leadership of a continent engaged in anti-colonial movements. It broadened the scope of the definition of refugees to include those fleeing

apartheid, colonial oppression and generalized violence and emphasised voluntary repatriation as a solution to refugee problems in Africa. In Europe, the Schengen (1985) and Dublin (1990) agreements were directed to develop a common strategy to deal with asylum seekers within the continent. To address their own regional needs, Latin American states opted for non-binding Cartagena declaration (1984). The Declaration was formalized by the non governmental sector only, yet the government’s of the region tends to follow it as a matter of policy. The Cartagena Declaration further broadened the scope of the refugee detinition to include foreign aggression, internal conflicts and those fleeing massive violation of human rights. And analyses of various regional approach that the coordination and cooperation of the concerned states are essential for the success of such an initiative, and that the consistent application all standards and indeed promote the prediction of refugees and encourage voluntarily repatriation. Those who argue for a regional instrument point out that, in spite of accession to quite a few international human rights instruments and constitution guarantees and in spite of generous asylum practice and many lenient judiciaries in many countries of South Asia, there have been occasions when protection for refugees has been jeopardized by the absence of legal principles. However, there are those who argue in favor of a national legislation, as opposed to a regional declaration of convention. Firstly, they argue, a premature the attempt at a regional solution in could mean “scuttling of national legislation as the

process of negotiation will raise politically sensitive issues which may be used by ruling elites to turn the ordinary citizen hostile to even a national regime for refugees.” Secondly, a non binding regional instrument may have little impact but may provide enough justification of the thwarting any national legislation. Thirdly, the scope of a regional instrument will be confined to general issues affecting the region while the national legislation can go into much more detail and therefore be more comprehensive, Fourthly, any attempt at arriving at a regional agreement is likely to result in a minimalist regime, and finally, issues surrounding IDPs which, for obvious reasons, have no place in a regional instrument can be effectively addressed in national legislation. III. Framing of National Legislation: If we consider the refugee problems I think BANGLADESH should adopt national legislation for the protection of asylum seekers and refugees. Because this will enable to handle the problem in more humane and effective ways and enhance country's image in terms of implementation of obligations promised through signing and ratification of different human rights instruments. Enactment of a law in Jatiya Sangsad regarding the refugee issue is a need of the hour though Bangladesh has not yet signed the International Refugee Convention 1951. The opinion came from a workshop on 'Refugee Rights and Role of the Media" organised on August 18, 2005 at a city hotel by the United Nations High Commissioner for Refugees (UNHCR). UNHCR Representative to Bangladesh Christopher Beng Cha Lee at a workshop on 'Refugees' Rights and Role of Media

in the city criticised the government for not signing the 1951 UN Convention on the status of refugees to protect basic human rights of the refugees in the country. "The government does not allow us to make arrangements for minimum standard houses for Rohingya refugees, education of their children, plantation in their camps and teaching them Bangla language that they speak,” He also added that “Politicians don't have time to listen to us, it is a shame for the country” Bangladesh government should understand the UNHCI is also working to change the situation in Myanmar and that Rohingyas will not be here permanently. Lee insisted that it should not take the issue politically. He said, ‘The refugee crisis often arise from political reasons, but humanity should be considered above all limitations and obstacles.’ He, however, said the UN organisation faces challenge in every country as it works with those who are not nationals of that particular country. Naim Ahmed, an advocate of the Supreme Court and expert on the issue, insisted on signing the Refugee Convention 1951. He said, ‘None can rule out the possibility of facing the refugee problem, as Bangladesh is now facing it with the Rohingyas.’ ‘So if we become a signatory to the Convention it will help us protecting our interests,’ Naim said adding, ‘After signing, everything related to refugee crisis become an international liability and the burden shared with the world usually becomes lighter.’

I think before signing the Convention, Bangladesh can introduce a separate law regarding management and other matters related to refugees. Advocate Naim Ahmed said that the Jatiya Sangsad should pass the law to save the country's interest as, often seen in global examples; the smaller or weaker states have to face enormous pressure from the stronger neighbors in this regard. He said that ‘Signing the Convention would help reduce present problems in bilateral dealings in this regard’. Advocate Nairn Ahmed of the Supreme Court said though Bangladesh did not sign the UN Convention on refugees, it could not stop Rohingya migration to it. He said “unidentified Rohingyas coming in. large number to the country are likely to cause more social or economic problems, by spreading out across the country”. So it may be recommended that if Bangladesh signs the convention, there will be a legal framework to identify if they are ‘economic migrants, criminals or refugees’. And the international community will also come forward to help solve the problems. Naim Ahmed thought that, “Bangladesh might fac e pressure from stronger neighbors in the absence of any legal framework on refugee issues.” In the workshop on Refugee Law organized by Bangladesh Bar Council recommend that “it would be better for the Bangladesh Government to accede to the UN Convention on the Status of Refugees and adopt national legislation on asylum and refugee issues. Considering the geopolitical situation of the country the government should initiate this”.

In this workshop program Mr. Christopher Beng Cha Lee, UNHCR Representative in Bangladesh urged that “The Government of Bangladesh to ensure humanitarian treatment to the foreigners, especially to the asylum seekers and refugees in the country. He said that Article31 of Constitution of Bangladesh ensures basic human rights also for the refugees. Bangladesh is also under obligation to ensure basic human rights for the refugees as party to major human rights instruments. However, unfortunately, the freedoms of movements of the refugees in camps arc restricted. They are not even allowed to carry money by the officials. The refugee children are also deprived of proper education in the camps. The UNHCR Representative observed that good treatment to foreigners here in Bangladesh could facilitate to have good treatment for Bangladeshi citizens who are around 5 million in other countries. “There are some Bangladeshis abroad who are in this irregular status and refugee like situation. The positive attitude of the Government of Bangladesh in dealing with foreigners here would provide a moral and logical ground to bargain with other governments who host Bangladeshis,” Mr. Lee said. According to him acceding to the Convention could be one of the positive steps. If we see the definition of refugees, the definition lack refugees national protection, because they are people who have fled their country for fear of there leaves and liberty on grounds of race, religion, nationality, political opinion or social group. If Bangladesh exceed international instrument and frame

national legislation then it would be helpful for the Bangladesh government to protect the interest of refugees. Because the international community through UNHCR seeks to ensure that they receive international protection until their problem is resolve. The protection of refugees includes not only admission to safety but also covers their treatment and basic human rights. At the legal level, accession to international refugee instruments and the adoption of appropriate national laws on refugees is important for providing a framework for governments within which they can setout their policies for the admission and treatment of refugees. If Bangladesh ratified international instruments then the international community through UNHCR and the NGOs can solve the problem of refugees, because both these bodies are involved in planning, co-ordination and implementation of the refugee programs. Many NGOs have been engaged in resettlement of displaced persons. In Bangladesh BRAC (Bangladesh Rural Advancement Committee), the premier NGO in Bangladesh was set up in 1972 to resettle the refugees who returned to the post-war Bangladesh from India. Because of their flexibility NGOs are able to intervene quickly to provide essential relief to the refugees. UNHCR depends on them to provide invaluable information about the unfolding crises. NGOs play an indispensable role of the conscience of the world. NGOs raise awareness of sensitive politicians and the public to humanitarian issues. NGOs play a key role in bridging the gap between relief and development helping the refugees to integrate with the local populations. So

it maybe recommend that it would be helpful for the Bangladesh Government if they accede the international instruments and framing national legislation regarding the refuge issues, because international community ensure the protection of refugees until their problem is resolved. 13. Conclusion: Like other South Asian countries, Bangladesh has a tradition of hosting a large number of refugees for a long period. Here, refugees are subjected to same laws as for foreigners. These hardly consider protection need of an individual, especially in case of women and children. Again, due to lack of any explicit legal regime, asylum seekers and refugees are dealt under adhoc administrative arrangements, which by their very nature could be arbitrary and discriminatory, and do not accord any right to the refugees. On the other hand, in the absence of a legal framework and access to asylum procedure in Bangladesh, newly arrived Rohingyas are forced to stay illegally here and be prone to various vulnerabilities including engagement in illegal activities and even in terrorism. Over the time, the Rohingya refugees have a significant impacts on the economic, social, cultural, environmental, and law and order situations in Bangladesh. At the latest, it has added to the security concern. It is reported that a section of the Rohingyas have link with domestic terrorist groups like JMB and guerilla group operative in Myanmar-India- Bangladesh borders who receive funds from abroad.

Therefore, the Government should be serious on the matter. It is a high time that Government of Bangladesh adopts a comprehensive policy on Rohingya refugee issues with a view to resolve the problem through bilateral and multi-lateral means. For this, pro-active diplomacy is required. A rightsbased approach as to domestic legislation is to give “…weight within a framework that recognises the distinctive essence of humanitarian problems and gives legal recognition to the fact that every person, alien or national, is of equal moral worth, and worthy of treatment that does not violate his her dignity. The law should have provisions, among others, on the definition of refugees, asylum procedure, rights and obligation, status of mixed-mirages, cancellation and cessation processor of refugee status etc. The 'Model Refugee Law' drafted by the Eminent Persons' Group (EPG) in 1997 could be a benchmark for further movement in this regard.

[1] Goodwin-Gill, G.S., Supra, p.2 [2] Convention Relating to the Status of Refugees, 1951

3 Salomon, K., The Refugees in the Cold War: Toward a New International Refugee Regime in the Early Post war Era. Lund University Press, Lund, 1990 4 Id. Art. III. Para. 3

5 The Convention was adopted by the General Assembly on 21 December 1965 and it came into force on 4 January 1966. Bangladesh acceded to the Convention on 11June, 1979. 6 . The Convention is a follow-up of the 1948 Universal Declaration of Human Rights. The Declaration is not a legally binding instrument. The 1966 Convention was adopted by the General Assembly of the UN on 16 December 1966 and it came into force on 23 March 1976. [7] For details see Goodwin-Gill, Refugee in International Law, Edition, 1998, (Oxford University Press, London) Pp. 359-366 9 Judith Kumin, Refugee Magazine, Issue 113, 1999. 10 C R Abrar. "The Need for Regional Cooperation and National Laws for Refugees in South Asia." unpublished article 11 Ibid 12 According to the criteria of UNHCR, they are not refugees. 13 Ethnically Rohingya. Migration and taking refuge of this group of people to this area dates back for years

14 Ogata, S., The State of the World’s Refugees, UNHCR, 1993, p. iii. 15 Ruth Marshall, Refugee Magazine, Issue, 99, I-1995 16 Judith Kumin, Refugee Magazine, Issue 113, 1999. 17 Goodwin-Gill, G.S., Supra, p.2 18 Convention Relating to the Status of Refugees, 1951 19 Salomon, K., The Refugees in the Cold War: Toward a New International Refugee Regime in the Early Post war Era. Lund University Press, Lund, 1990 20 The convention came into force in 1960 21 The convention came into force in 1960 22 The Convention came into force in 1960 23 ibid p 25 24 Article 31, The Constitution of the People’s Republic of Bangladesh 25 31 DLR (AD), p.1 26 Article 32, The Constitution of the People’s Republic of Bangladesh 27 Peerless General Finance and Investment Company Limited v Reserve Bank of India, 1992. 2 SCC 343 p 388. 28 Anisual Islam Mahmood v Bangladesh, 44 DLR, p.1. 29 Article 33, the Constitution of the Peoples Republic of Bangladesh 30 Ibid, Article 34. 31 Ibid, Article 44 32 Dr. Mohiuddin Farooque v Bangladesh case, 49 DLR. P.1. 33 Article 25, the Constitution of the People’s Republic of Bangladesh

34 The Foreigners Act, 1946, Act No. XXXI of 1946 35 Marjoleine Zeick, UNHCR and Voluntary Repatriation, 1997, P. 449 (Martinus Nijhoff Publishers, The Hague) 36 AS of January 1, 2006, there are 20,751,900 refugees in the world. Asia-8,603 Africa-5,169,300 Europe-3,666,700 Latin America and Caribbean-2,513,000 North America716,800 Oceania-82500 (Source 37 Economic and Social Council of United Nations (ECOSOC) 38 UNHCR Global Report 2009: 39 Source:internet

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