Acording to the Universal Declaration of Human Rights (UDHR), 1948, all persons are guaranteed the right to life, liberty and security of person, freedom from slavery, freedom from torture and cruel, inhuman or degrading punishment, the right to be recognised as a person before law, and equality before the law.
Obligation under international instruments
Bangladesh is not a party to the 1951 Refugee Convention or the UNHCR Statute. However, Bangladesh has ratified a number of major international human rights instruments. Among them the significant ones are the Universal Declaration of Human Rights (UDHR), Four Geneva Convention of 1949 and their two Additional Protocols of 1977, International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR), Convention on the Rights of the Child (CRC), Convention on Elimination of All Forms of Discrimination Against Women (CEDAW), Convention Against Torture (CAT) etc. All of these instruments have a bearing upon Bangladesh’s obligation to protect refugees.
Even though the refugees are foreigners in the country of asylum, by virtue of Article 2 of the ICCPR, 1966, they could enjoy the same fundamental rights and freedoms as nationals. The right to equality before the law, equal protection of the law and non-discrimination which form a cornerstone of international human rights laws call for banning discrimination against refugees based on their status as such.
The Declaration and Programme of Action of the World Conference on Human Rights also reaffirmed the right of every person to seek and enjoy asylum. Furthermore, the CRC also obliges the state parties to take care of the interest and rights of the refugee children including their birth registration.
In addition to the above instruments, Bangladesh voted for the United Nations Declaration on Territorial Asylum in the General Assembly, which strengthens its obligations of protection, asylum and non-refoulment. Bangladesh is also a party to the International Labour Organization’s Convention Number 118, which provides for social security to refugees and stateless persons living in the territory of the signatory state.
Additionally, Bangladesh has been a member of the Executive Committee of the High Commissioner’s Programme (EXCOM) since 1995. EXCOM, a body composed of 94 governments, oversees UNHCR’s budgets and advises on refugee protection. Bangladesh’s membership in the EXCOM is certainly indicative of its particular interest and greater commitment to refugee matters.
Obligation under constitutional framework
The constitution of Bangladesh upholds the right to life and liberty of all individual. Not only is the life of a citizen of Bangladesh guaranteed, but also everyone who inhabits the terrain of this country is assured of protection in respect of life and liberty.
The fundamental principles of state policy as mentioned in the constitution essentially reflect international law and the principles enunciated in the UN Charter. Article 25 of the Constitution provides that “the State shall base its international relations on the principles of respect for ... international law and the principles enunciated in the United Nations Charter.”
The UN Charter, in its preamble, specifically refers to the reaffirmation of “faith in fundamental rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small. The Charter in its articles of 1, 55 and 62 reiterates the observance of human rights for all peoples of the world.
Part III of the Constitution guarantees a series of fundamental human rights, drawing heavily from the international human rights discourse. For example Article 27 of the Constitution provides equal protection of law for all. Article 31 provides that not only the citizens are entitled to have the protection of law but the foreigners (non-citizen) who stay in the country for the time being are also entitled to have so. Furthermore, Article 32 states that “no person shall be deprived of life and liberty save in accordance with law.”
It is to be noted that the word ‘person’ and not ‘citizen’ has been used in the Articles and therefore it is argued that no person, irrespective of whether she/he is a citizen of Bangladesh, can be deprived of her/his life or liberty once that person is on the soil of Bangladesh. The Constitution also guarantees right to life and personal liberty; safeguards from arbitrary arrest and detention; prohibition of forced labour; right of fair trial; freedom of movement, assembly, association, freedom of expression, profession or occupation, religion; right to property, etc.
However, for the translation and execution of these constitutional provisions in the interest of the refugees, needs comprehensive legal interpretations and pro-active initiatives from the government. Till now, there is no significant indication in this regard.
In regards to statutory framework, there is no domestic law or specific national policy governing the protection of refugees in Bangladesh. In practice, foreigners, irrespective of asylum seekers or simply visitors are treated here under the purview of aged old laws which are inadequate to meet the need of the time.
The inadequate statutory framework dealing with refugees in Bangladesh offers a stark contrast to the fundamental rights in the Constitution and increasingly evolved norms and principles under international refugee law. The statutory framework does not even acknowledge refugees as a separate class of people deserving separate treatment. However, the relative success of Bangladesh’s policy of dealing with refugees in an ad hoc manner without committing itself to a general statutory framework has silenced demands for a legislation concerning refugees as a separate class. To understand the law governing refugees, it would be useful to examine the respective regulatory framework to deal with refugees.
Legislations dealing with refugees
Foreigners Act, 1946
Foreigners Order, 1951
Registration of Foreigners Act, 1939,
Registration of Foreigners Rules, 1966
Passports Act, 1920
Passport Rules, 1955
Bangladesh Passport Order, 1973
Citizenship Act, 1951
Bangladesh Citizenship (Temporary Provisions) Order, 1972,
Bangladesh Control of Entry Act, 1952
Extradition Act, 1974
Naturalization Act, 1926
Code of Civil Procedure, 1908
Children Act, 2013
These laws make no distinction between refugees and other foreigners. Using the wide discretionary powers derived from Section 3 of the Foreigners Act of 1946, the Ministry of Home Affairs may issue residential permits to any foreigner, and it is on this basis that a large number of UNHCR-recognised mandate refugees have been able to secure “stay” facilities which are issued to mandate refugees on the basis of an informal recognition of the UNHCR-issued refugee certificates.
However, the constitutional laws and ordinary laws through judicial process alone are not sufficient and adequate to deal with the refugee problem in Bangladesh. Arguably, these laws are not made for such specific purposes. Hence, specific legislation relating to the treatment and welfare of refugees is necessary.
Considering the huge size of refugee population inside Bangladesh and recurrent history of refugee phenomenon in the South Asian region due to a number of reasons, it is also necessary to enact a national law which would provide specific guidelines to the implementing agencies to uphold the refugee cause. The need of the hour is to have a well-defined national refugee law.