The Law and Jurisprudence of Writ Petitions in Bangladesh

1. Introduction:

The High Court Division (HCD) under Article 102(1) of the Constitution of Bangladesh has the power to pass orders necessary to enforce fundamental rights enshrined in Part II of the Constitution. It is important to note that the right to move the HCD under Article 102(1) seeking the enforcement of the fundamental right is itself a fundamental right as enunciated in Article 44(1) of the Constitution.

Only on the ground of violation of a fundamental right can someone move to the HCD under Article 102(1).[1] However, the aforementioned observation is not in line with Part III of the Constitution and is open to exceptions.

2. Judicial Review:

Judicial review is fundamentally the procedure to check the validity of laws, i.e. whether they conform to constitutional provisions. The US Supreme Court in Marbury v. Madison established the principle of judicial review, also declared the supremacy of the constitution.[2] Article 7 of Constitution of Bangladesh declares its supremacy, i.e. the supremacy of the constitution. Furthermore, in Bangladesh, the Supreme Court has the constitutional responsibility to adjudicate the validity of laws.[3]

2.1. Questions of Fact – As per Article 44, the HCD cannot refuse to entertain an application under Article 102(1) on the ground that the petition involves the resolution of disputed questions of fact.[4]

2.2. Nature and Form of Relief – It is the HCD’s discretion to fashion the relief according to the circumstances of a particular case.[5] HCD is competent to award compensation when it is found that fundamental rights have been infringed by the illegitimate exercise of power by police under Sec. 54 and 167 of the Code of Criminal Procedure.[6] The HCD has awarded compensation when it found the detention of citizens to be completely without any basis on record or the result of utter negligence.[7]

2.3. The doctrine of Political Question – The AD in the exercise of its judicial self-restraint declined to enter into the political question of virtues and vices of hartal and strike in absence of any constitutional imperative.[8]

2.4 Exhaustion of Efficacious remedies – There is no requirement for the exhaustion of efficacious remedies in case of a petition under Article 102(1) for the enforcement of fundamental rights.[9]

3. The Different Types of Writs:

3.1. Writ of Certiorari [Article 102(2)(a)(ii)]:

The HCD can entertain a certiorari petition in case of lack of jurisdiction, an excess of jurisdiction or violation of principles of natural justice.[10] Any action not authorised by law is invalid and ultra vires.[11]

A Writ of Certiorari may be applicable in situations of inter alia excess of jurisdiction, lack of jurisdiction, misinterpretation of the law, failure to exercise jurisdiction, use of power for the improper purpose, procedural ultra vires, failure to give any or adequate reasons, and mala fide use of authority.

3.2. Writ of Prohibition [Art. 102(2)(a)(i)]:

A Writ of Prohibition may be filed for the same grounds as a Writ of Certiorari, but it must be filed before the alleged impugning act has taken place.

3.3. Writ of Mandamus [Art. 102(2)(a)(i)]:

A Writ Mandamus cannot compel the government to implement its policy.[12]A Writ of Mandamus cannot be issued on the mere consideration of equity.[13]

 4. Jurisprudence on the aforementioned Three types of Writs:

4.1. Errors of fact:

The HCD in certiorari cannot interfere with findings of fact unless it is a case of no evidence or a case of non-consideration of material evidence, misreading of the evidence, or misconstruction of the documents.[14]

N.B. A finding of fact based on no evidence is treated as an error of law.[15]

The test of reasonableness is adopted in case of questions of fact.[16]

4.2. Duty to act fairly:

The State has a duty to act fairly; unfair measures can be challenged.[17] The law enjoins the government to act fairly, reasonably, and not arbitrarily.[18]

4.3. Legitimate Expectation:

Legitimate expectation cannot be negated by executive action unless on grounds of public interest, however, the court will uphold legitimate expectation only when the facts of the case clearly and unambiguously give rise to the same.[19]

4.4. Principles of Natural Justice:

(i) A man cannot be condemned unheard (audi alteram partem)

(ii) A man cannot be the judge in his own cause (nemo debet esse judex in propria causa)

These principles extend to any person or body deciding issues affecting the rights or interests of individuals where a reasonable citizen would have a legitimate expectation that the decision-making process would be subject to some rules of fair procedure.[20]

These rules apply even though there may be no positive words in the statute requiring the application of these rules.[21]

In all proceedings by whomsoever held, whether judicial or administrative, the principles of natural justice have to be observed if the proceedings might result in consequences affecting the person or property or other rights of the parties concerned.[22]

Consideration of legitimate expectation also involves the principles.[23]

The basic principle of fair procedure: fair opportunity to answer the case against him or her and to put forward his or her own case.[24]

The service of a person working in a post cannot be terminated without affording him or her an opportunity of being heard.[25]

The person sought to be affected must know the allegations and the materials used against him or her, and he or she must be given a fair opportunity to correct or contradict them.[26]

The right of fair hearing is of universal application whenever a decision or action affects the rights or interest of a person is made or taken.[27]

For a hearing to be fair it must fulfil some conditions: the authority should: (i) receive all relevant material which the person concerned produces, (ii) disclose all information, evidence or materials which the authority wants to use against the person in arriving at the decision, and (iii) afford opportunity to the person to controvert the information or material sought to be used against that person.[28]

When an employee is sought to be punished on a charge of misconduct, examination of witnesses in support of the charge should be in presence of the employee and the employee should be given the opportunity of cross-examining the witnesses.[29]

Non-disclosure of materials may be permitted if such full disclosure may injure the individual affected or is against the public interest.[30]

Generally, the inquiry report has to be supplied to the party proceeded against.[31]

5. Writ of Habeas Corpus [Art. 102(2)(b)(i)]:

A Habeas Corpus can be issued against any wrongful detention be it by public functionary or a private citizen.

Situations where a Writ of Habeas Corpus may be issued:

– Detention of seven children of the same age by persons falsely claiming to be parents of the children.[32]

– The father illegally took away the child from the mother and detained the child.[33]

– Mother’s right to custody of her son till he attains the age of seven.[34]

– A mother can seek Habeas Corpus when her lawful custody to minor children is denied.[35]

– The grounds for arrest must not be irrelevant, vague or non-existent, and they must be reasonable.[36]

– A detention order that is not authorized by law will be held unlawful. The detention order was issued to prevent the detainee from indulging in prejudicial activities, however, it later came to light that it was actually for collateral purposes (to stop the detainee from escaping).[37]

N.B. The same writ petition can be maintained even if the detention is continued under a new order. Basically, the writ is maintainable as long as the detention continues.[38]

6. Writ of Quo Warranto [Art. 102(2)(b)(ii)]:

The Writ of Quo Warranto is used to ensure that no one can hold any public office without having a valid claim to that office. A writ of Quo Warranto will lie against the office of the attorney-general, the chief justice, judge of the HCD, ministers, members of parliament, chairman of municipality, members of municipal boards, administrator of municipal corporation appointed by the government, chief engineer of municipal board, member of bar council, chairman or member of Union Parishad, member of Senate or syndicate of a university, dean of a faculty in a university, chief metropolitan magistrate, government pleader, members of the civil service.

A Writ of Quo Warranto questioning the election of the president of the republic is not maintainable before the president-elect has taken the oath of office. However, a writ of certiorari is maintainable in such case.[39] The same principle is applicable in case of election of a chairman of the local council (after the declaration of the result but before taking the oath of office).[40]

N.B. Art. 102 (2) does not require the applicant for a Writ of Quo Warranto to be an aggrieved party.[41]

References:

[1] Chairman RAJUK v. Abdur Rouf Chowdhury, (2009) 61 DLR (AD) 28.

[2] Marbury v. Madison, (1803) 2 L. Ed. 60.

[3] Anwar Hossain Chowdhury v Bangladesh, 1989 BLD (Spl) 1.

[4] Kochuni v. Madras, AIR 1959 SC 725.

[5] Bangladesh v. Ahmed Nazir, (1975) 27 DLR (AD) 41.

[6] BLAST v. Bangladesh, (2003) 55 DLR 363.

[7] Bilkis Akhtar Hossain v. Secy. Ministry of Home, (1997) 2 BLC 257; Shahnewaz v. Bangladesh, (1998) 50 DLR 633; Korban v. Bangladesh, (2003) 55 DLR 194.

[8] Abdul Mannan Bhuiyan v. State, (2008) DLR (AD) 49.

[9] HM Ershad v. Bangladesh, (2002) 7 BLC (AD) 67.

[10] Pabna Mental Hospital v. Tossadek Hossain, (2005) 13 BLT (AD) 91.

[11] Hamidul Huq Chowdhury v. Bangladesh, (1981) 33 DLR 381; Ataur Rahman v. Election Commission, (2010) 15 BLC 506.

[12] Yunus Mia v. Secy. Ministry of Public Works, (1993) 45 DLR 498; Md. Abdul Bari v. Bangladesh, (2010) BLD 465.

[13] Abed Ali v. Bangladesh, (1996) 1 BLC 39; Md. Abdul Bari v. Bangladesh, (2010) BLD 465

[14] Bangladesh v. Abdul Wahed Talukdar, (2006) 11 BLC (AD) 218; Bangladesh v. Afsar Ali, (2006) 14 BLT (AD) 44.

[15] Bangladesh v. Md. Jalil, (1996) 48 DLR (AD) 10; Bangladesh v. Md. Afsar Ali, (2006) 58 DLR (AD) 107.

[16] East Pakistan v. Abdus Sobhan Sowdagar, (1964) 16 DLR (SC) 249, Para 9; Abdul Baqui Balooch v. Pakistan, (1968) 20 DLR (SC) 249.

[17] Ekushey Television Ltd. v. Chowdhury Mahmood Hasan, (2002) 54 DLR (AD) 130, 144; SSA Bangladesh Ltd. v. Eng. Mahmudul Islam, (2000) BLD (AD) 92.

[18] Nazrul Islam v. Bangladesh, (2001) 53 DLR 519.

[19] BTMC v. Nasiruddin Chowdhury, (2002) 7 BLC (AD) 144.

[20] RAKUK v. Dhaka WASA, (2009) 14 BLC (AD) 129; University of Dacca v. Zakir Ahmed, (1964) 16 DLR (SC) 722.

[21] Unique Hotels and Resorts Ltd. v. Bangladesh, (2010) 15 BLC 770; Regard Chemical Works v. NBR, (2001) BLD 342; H.M. Ershad v. Bangladesh, (2001) BLD (AD) 69.

[22] University of Dacca v. Zakir Ahmed, (1964) 16 DLR (SC) 722; SM Delwar Hossain v. Bangladesh, (2009) 61 DLR (AD) 59; RAKUK v. Dhaka WASA, (2009) 14 BLC (AD) 129; Farzana Haque v. Dhaka University, (1990) 42 DLR 262; Unique Hotels and Resorts Ltd. v. Bangladesh, (2010) 15 BLC 770; Dr Abeda & others v. Public Service Commission, (2007) 59 DLR 182.

[23] Sk Ali Ahmed v. Secretary, Ministry of Home Affairs, (1988) 40 DLR (AD) 170; Bangladesh Telecom Ltd. v. BTTB, (1996) 48 DLR (AD) 20.

[24] Sk Ali Ahmed v. Secretary, Ministry of Home Affairs, (1988) 40 DLR (AD) 170; Bangladesh Telecom Ltd. v. BTTB, (1996) 48 DLR (AD) 20;  University of Dacca v. Zakir Ahmed, (1964) 16 DLR (SC) 722; RAKUK v. Dhaka WASA, (2009) 14 BLC (AD) 129; Jahanara Ahmed v. Md. Abdul Quyum, (2003) 8 BLC (AD) 20.

[25] Serajul Azim Khan v. Secy, Ministry of LGED, 2007 BLD 397.

[26] Kanda v. Government of Malaya, [1962] AC 322; Chief Constable of the North Wales Police v. Evans, [1982] 3 All E.R. 141.

[27] Bangladesh v. Khashru Miah, (2006) 58 DLR (AD) 46; Reazuddin v. Bangladesh, (2005) 57 DLR 698; Abdul Malek v. Bangladesh, (2005) 57 DLR 284; Moktar Hossain v. Bangladesh, (2007) 59 DLR 535; Jabbar Jute Mills v. Abul Kashem, (2007) 59 DLR 152; Md. Shawkat Ali v. Director General, (2010) 18 BLT 303; Bazlur Rahman v. Bangladesh, (2010) 18 BLT 279.

[28] National University v. Sultana Razia, (2009) 17 BLT (AD) 190.

[29] M.A. Hai v. T.C.B., (1980) 32 DLR (AD) 46.

[30] R v. Kent Police Authority ex p. Godden, [1971] 2 QB 662; R v. Home Secretary ex p. Hosenball, [1977] 1 WLR 766.

[31] Borhanuzzaman v. Ataur Rahman, (1994) 46 DLR (AD) 94; Mostafa Mia v. Labour Court, (1994) 46 DLR 373; Torab Ali v. BTMC, (1989) 41 DLR 138.

[32] Bangladesh Jatiyo Mahila Ainjibi Samity v. Ministry of Home Affairs, (2009) 61 DLR 371.

[33] Ayesha Khatun v. Maj. Shabbir, (1993) BLD 183.

[34] Farhana Azad v. Samudra Ejazul Haque, (2007) BLD 384.

[35] Abdul Jalil v. Sharon Laily, (1998) 50 DLR (AD) 55.

[36] Abdul Latif Mirza v. Bangladesh, (1979) 31 DLR (AD) 1.

[37] Sajeda Parvin v. Bangladesh, (1988) 40 DLR (AD) 178.

[38] Alam Ara Huq v. Bangladesh, (1990) 42 DLR 98.

[39] Abu Bakr Siddiqui v. Mr Justice Shahabuddin, (1997) 49 DLR 1.

[40] Farid Mia v. Amjad Ali, (1990) 42 DLR (AD) 13.

[41] Dr Kamal Hossain v. Serajul Islam, (1969) 21 DLR (SC) 23; Abu Taher Mia v. Farazuddin, (1989) 41 DLR 543.

Bangladesh’s Observations on the ICC’s Territorial Jurisdiction over the Deportation of Rohingyas from Myanmar

Article 12(2) of the Rome Statute of the International Criminal Court (Rome Statute) states that the International Criminal Court (ICC) may exercise its jurisdiction if an alleged international crime has been committed on the territory of a State or by a national of a State which is a party to the Rome Statute or has explicitly accepted the Court’s jurisdiction over the alleged conduct.

Myanmar is not a party to the Rome Statute and it is unlikely that it will in the foreseeable future accept the Court’s jurisdiction over the situation in Rakhine. Therefore, ipso facto, the Court does not have jurisdiction to investigate and try the alleged crimes that may have been committed in the Rakhine. Now, in order for the Court to exercise jurisdiction over the situation in Rakhine the situation must be referred to the Prosecutor by the UN Security Council acting under Chapter VII of the Charter of the United Nations as per Article 13(b) of the Rome Statute. In recent times, even though, a majority of the Security Council has displayed considerable sympathy for the Rohingyas nonetheless there is a stalemate on the question of referral of the matter to the Court.

On 9 April 2018, in an attempt to work around the impasse in the Security Council and the fact that Myanmar is not a State party to the Rome Statute of the International Criminal Court (Rome Statute), the Prosecutor of the Court, as per Article 19(3) of the Rome Statute, submitted a Request to the President of the Pre-Trial Division for a ruling on whether it has jurisdiction over the alleged crime of deportation of the Rohingyas from Myanmar to Bangladesh since August 2017. Article 19(3) of the Rome Statute states that the Prosecutor may seek a ruling from the Court regarding a question of jurisdiction or admissibility and Article 7(1)(d) of the Rome Statute enunciates that deportation of a population is a ‘crime against humanity’.

In the Request, the Prosecution stated that ‘consistent and credible public reports’ indicate that since August 2017 more than 670,000 Rohingyas who were lawfully residing in Myanmar have been intentionally deported into Bangladesh. To that end, the Prosecutor has sought the Court’s opinion on the question of whether it has jurisdiction over the aforementioned alleged conduct. The Prosecution has argued that, even though the coercive acts that caused the deportation occurred on the territory of Myanmar the Court may nonetheless exercise jurisdiction over the alleged crime under article 12(2)(a) of the Rome Statute because an ‘essential element’ of the crime, i.e. the enforced crossing of an international border, occurred on the territory of Bangladesh; a State party to the Rome Statute.

Subsequently, on 7 May 2018, the Pre-Trial Chamber I of the Court issued a decision inviting Bangladesh to submit written observations, either publicly or confidentially, pursuant to Rule 103(1) of the Rules of Procedure and Evidence of the Court on the aforementioned Request by the Prosecutor.  Rule 103(1) of the Rules of Procedure and Evidence states that the Court may at any stage of the proceedings, if it considers it desirable for the proper determination of the case, invite or grant leave to a State, organization or person to submit, in writing or orally, any observation on any issue that it deems appropriate. The Court has sought Bangladesh’s observations on the following matters: (i) the circumstances surrounding the presence of the Rohingyas from Myanmar on the territory of Bangladesh; (ii) the prospect of the Court’s exercise of territorial jurisdiction over the alleged deportation of the Rohingyas; and (iii) any other matter that may assist the Court in issuing its decision on the Request.

At the outset, it must be noted that such a Request by the Prosecutor for a ruling on jurisdiction is a first of its kind, and it also involves a contentious issue. Hence, the procedure followed by the Court in this instance and its final ruling on the matter will set a precedent for similar requests in the future, and by inviting observations from a State party the Court may be shaping an inclusive process with the aim of rendering a decision that is buttressed by a State party’s contributions. It must also be understood that the scope of the matter at hand is limited only to the crime of deportation of the Rohingyas. Therefore, neither the current proceedings at the Court nor Bangladesh’s observations will inquire into the crimes of genocide, murder, or sexual violence since they were allegedly committed only on the territory of Myanmar and is therefore beyond the jurisdiction of the Court exclusive of a referral by the Security Council. Therefore, an affirmative ruling by the Court would only mean that the Prosecutor would be able to investigate and charge Myanmar officials for only the crime of deportation.

Bangladesh’s observations should include significant legal analysis of the crime of deportation, territorial jurisdiction, and evidence to demonstrate that the Rohingyas were lawfully residing in Myanmar and were coerced into leaving Myanmar. The Prosecutor’s Request cited multiple reports by various credible sources including multiple UN agencies, and international organisations and NGOs all of which underlined the consistent and intentional acts of coercion that caused the Rohingyas to leave Myanmar. Hence, there is not much more substance that Bangladesh can add to the facts and evidence already listed in the cited reports. Nonetheless, Bangladesh should provide first-hand accounts of the victims, casualty statistics, relevant intelligence and reconnaissance information, and any other corroborative information that may help the Court to comprehend the relevant circumstances.

Essentially, the most contentious question before the Court is whether it has territorial jurisdiction when persons are deported from the territory of a State which is not a party to the Rome Statute directly into the territory of a State which is a party to the Rome Statute? Fundamentally, this is a legal question. The Prosecutor’s arguments on this question is an excellent exposition of the law and practice on deportation and territorial jurisdiction.

According to the Prosecutor’s Request, the crime of deportation is defined as the enforced displacement of individuals across an international border. This definition is supported by decisions of numerous other international crimes tribunals. By comparing the situation to ‘cross-border shooting’, the Prosecution has argued that deportation has two legal elements: (i) coercion – which forces the victim to – (ii) cross an international border. The first element occurs in one State and the second in another. The second element requires that the coercion cause the victim to cross an international border into the territory of another State. Therefore, the Prosecution has argued that an ‘essential element’ of the crime actually took place in a State party to the Rome Statute, i.e. Bangladesh.

As convincing as the aforementioned argument may seem, it hinges on the notion that crossing an international border into another State is an ‘essential element’ of the crime of deportation. However, people can be deported to high seas (international waters) where the victim is not forced across the border into the territory of another State but rather simply across an international border. Therefore, deportation occurs as soon as the victim is forced to cross an international border, it is irrelevant whether they cross into the territory of another State or the high seas. This is where Bangladesh can make a significant contribution to the proceedings. Bangladesh could provide extensive legal analysis on the nature and status of international borders and argue that even if mere crossing of an international border is required for deportation, that too may occur on the territory of another State. In case of the Bangladesh-Myanmar border, factors such as the ‘no man’s land’ and the nature of bilateral administration of the border should be explored in the observations.

Bangladesh could argue that the border between two States (including the ‘no man’s land’ and the physical border itself) are territories over which both States exercise shared sovereignty, i.e. the territory belongs to both States. This view is supported by the fact that borders are generally defined and administered jointly by the two neighbouring States and that their administration are generally outcomes of various bilateral arrangements; thus, not all international borders are administered in the same way.  Therefore, it could be argued that the ‘crossing of an international border’ element of the crime of deportation occurred on a territory which belongs to both Bangladesh and Myanmar. This is not a notion that is new in international law, the international law on condominium territories has existed for over a century. In other words, the international border between Myanmar and Bangladesh is technically Bangladeshi territory. Therefore, the act of crossing of the Myanmar-Bangladesh border occurs in part on Bangladeshi territory, thus establishing the Court’s territorial jurisdiction over the alleged crime.

Having said that, the Court’s final ruling has the potential to make significant contributions to the law on deportation, territorial jurisdiction, and the nature of international borders. Regardless of the direction of the Court’s ruling, Bangladesh and the international community must continue to push the Security Council to refer the situation in Myanmar to the Court so as to allow a complete investigation and subsequent trial of the perpetrators of not only deportation but all the relevant international crimes.

A shorter version of this article was originally published in The Daily Star on 30th May 2018. It is available at: https://www.thedailystar.net/opinion/human-rights/bangladeshs-observations-rohingya-deportation-1583473

Payment of Reparations to the Rohingyas: The Way Forward

As the world is already aware, since August 2017, a brutal ‘ethnic cleansing’ campaign orchestrated by the Myanmar military against the Rohingya people in the Rakhine state of Myanmar has forced around 800,000 Rohingyas to flee to neighbouring Bangladesh. While the international community led by the United Nations has pressed Myanmar to investigate the alleged atrocities and to create a conducive environment for the repatriation of the refugees there has been no observable progress on either front. There have also been calls for investigation of the situation by the International Criminal Court (ICC) for alleged international crimes of crimes against humanity and genocide. It is indisputable that the Rohingyas deserve Retributive Justice through the punishment of the perpetrators of the alleged international crimes.

However, it must also be kept in mind that; as is the case in such situations, the Rohingyas also deserve Restorative or Reparative Justice through reparations. Reparation is an act of redress or expiation directed towards or made to the victims of an injustice. It is evident that the Rohingyas deserve reparations, but the crux of the matter is whether Myanmar is obligated to pay reparations to the Rohingyas? Myanmar does have a moral responsibility to do so. However, a claim for reparation in the international sphere is legally justified only if it arises out of an obligation under international law. Is Myanmar obligated under international law to pay reparations? The answer is the affirmative. It is argued that Myanmar owes reparations for gross violations of the customary international law elements of international criminal law, human rights law, and international humanitarian law. Irrespective of whether Myanmar is a signatory to the major humanitarian law and human rights treaties it is nonetheless bound by the customary international law on these issues. Hence, Myanmar has an international obligation to provide certain basic human rights, safeguards, and standard of humanitarian treatment to everyone, including the Rohingyas, which it failed to do. Consequently, under international law, it now has the duty pay reparations to the Rohingyas for the breach of the aforesaid obligations.

The United Nations’ Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, 2005 enunciates that reparation may be of five forms: (i) restitution, (ii) compensation, (iii) rehabilitation, (iv) satisfaction, and (v) guarantees of non-repetition. Reparation may be paid in one or all of the aforementioned forms depending upon the nature and gravity of the violations of the human rights and international humanitarian law. It is argued that the victims of the atrocities in Rakhine deserve reparation in all five forms.

Firstly, as per Principle 19 of the Basic Principles, the Rohingyas are entitled to restitution through the restoration of their freedoms, civil and political rights, ability return to their homes, and return of their lands and properties which they were forced to leave behind. Additionally, many Rohingya farmers were forced to leave behind their crop fields, the crops from which were subsequently harvested under the stewardship of the Myanmar government. Hence, these Rohingya farmers are also entitled to the proceeds from the sales of the crops from their fields. Secondly, as per Principle 20, the Rohingyas who suffered physical harm; psychological trauma; lost opportunities in their employment and education; lost their earnings; incurred financial costs to escape the violence, to acquire basic amenities, medicine, and medical services as result of the ‘ethnic cleansing’ campaign deserve adequate and prompt monetary compensation.

Thirdly, as per Principle 21, moving forward the Rohingyas need to be provided with rehabilitative services in the form of medical and psychological help, and legal and social services so that they are able to recover from and receive help in dealing with the long-term effects of the ordeal they were forced to endure, and they must also be provided with the requisite legal help so as to enable them to seek appropriate judicial remedies to that end. Fourthly, as per Principle 22, the Rohingyas deserve satisfaction through Myanmar’s acknowledgment of the injustices and atrocities perpetrated against them; acceptance of responsibility and issuance of a public apology; the punishment of the perpetrators; the verification and public disclosure of the true facts regarding the perpetrated atrocities; the search for missing persons; the identification, reburial of the dead, and restoration of the dignity of the victims and their families; and lastly, inclusion of an accurate account of the atrocities in the history of Myanmar and in all educational materials so that future generations do not give in to such forms of hatred and xenophobia.

Fifth, last, and most importantly, as per Principle 23, Myanmar must undertake measures to guarantee non-repetition of such atrocities. In simpler words, it must guarantee such an ‘ethnic cleansing’ campaign will never happen again. This is vital because Rohingyas have also previously been subjected to similar mistreatment; in 1978 and 1990; forcing them to flee Myanmar; many of whom were subsequently repatriated but were forced to flee again in 2017. Therefore, unless this cycle of abuse and violence is not stopped there will never be lasting peace in the Rakhine. To that end, Myanmar must effectively reintegrate the Rohingyas into Burmese society; establish effective monitoring and preventive mechanisms in the government, military, and the judiciary to stop such atrocities from reoccurring; and lastly, it must reform and review laws; such as the infamous citizenship law, which contributes towards the mistreatment and the commission of such atrocities.

In conclusion, it is up to Myanmar, Bangladesh, and the other international stakeholders to politically determine the extent of realization of the aforementioned aspirations of reparations. The international community must ensure that a people who have been forced to flee their scorching villages, lost their loved ones, lost everything they had, and will forever be traumatised get justice; retributive and restorative alike. Lastly, it is obvious that such material assistance and symbolic gestures will never be able to make the lives of the victims whole again or make up for all the suffering that they had to endure but it will surely go some distance in helping them to rebuild their lives and establish the foundations for lasting peace in the Rakhine.

This article was originally published in The Daily Star on 13th May 2018; titled ‘Myanmar should pay reparations to Rohingyas’. The original version is available at: https://www.thedailystar.net/opinion/human-rights/myanmar-should-pay-reparations-rohingyas-1575334