Constitutional obligation and necessity for a uniform legislation in Bangladesh to protect refugees

International instruments regarding the protection of refugees, such as the 1951 Convention Relating to the Status of Refugees, is binding upon the signatory states. Article 33 of the 1951 Convention Relating to the Status of Refugees explicitly 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".

Bangladesh is not a state party to the 1951 Convention Relating to the Status of Refugees or its 1967 Protocol (hereinafter jointly referred to as the 1951 Convention). For this reason Bangladeshi legal framework does not explicitly recognise the concept of non–refoulement. There is no provision for refugees in national legislation — the constitution covers all persons on the territory in the same manner.

However, even when the states are not party to any convention, they follow some internationally accepted and recognised standards which are often called the customary international law. Being the non-signatory of the convention on the status of refugees 1951, Bangladesh has always come forward to safeguard the rights of refugees, mainly Rohingya refugees who have taken refuge in Chittagong from 1970 to 2017. Since the 1970s an estimated 300,000 to 500,000 refugees had lived in Bangladesh prior to the recent influx.

Therefore, in Bangladesh, there is no direct law regarding the refugee issue. The constitution of Bangladesh contains some general provision to respect international law and to promote international peace. Article 25 of the constitution of Bangladesh provides that, the obligation 'base its international relations on the principles and respect for international law and the principles enunciated in the UN Charter'.

The constitution is the supreme law of the land. The fundamental rights are enlisted in Part III of the constitution, with a view to ensuring equality before law. We have as many as 18 fundamental rights from which some are applicable to non-citizens also. The refugees have the constitutional right to enjoy the protection of law in this country under Article 31. The article states, "To enjoy the protection of the 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 other 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."

Article 33 of the Constitution provides safeguards against arrest and detention for the citizens and non-citizens alike. For the enforcement of the above-mentioned rights, any refugee, like a citizen of Bangladesh, can move the Honourable High Court Division in accordance with the Article 102, of this constitution.

Moreover, The constitution of Bangladesh has obliged the government to support oppressed peoples' struggle against racialism in all parts of the world. Part II of our constitution comprises the Fundamental Principles of State Policy, which adheres to the principles of international law, including the principles laid down in the United Nations Charter. A refugee is a person who has been forced away from their home country and has sought refuge elsewhere. So, they are not entitled to the rights of a citizen. However, it is laid down in Article 31, that no action can be taken which is detrimental to the life, liberty, and property of any person, including a refugee, except in accordance with law. It is already known that, people become refugees when their basic human rights and dignity are not ensured in their home country owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.

So, Bangladesh should respect the international law and fulfil its international obligations under various international instruments to protect the mainly Rohingya refugees in its territory. For this reason, Bangladesh needs to bring about uniform national legislation which would comprehensively deal with rights of the refugee and the procedure for their status determination would also be ensured through the legislation. There is a need to bring harmonious construction between the provision of the international instruments and the domestic laws. More than that Bangladesh government would have more careful so that Rohingyas would not forcefully refoule to Myanmar, where there is the high possibility of persecution or crime against humanity against the Rohingyas by the Myanmar security forces or its citizens.