Fundamental Rights under the Constitution of Bangladesh

Distinction between Fundamental Rights and Human Rights:

Fundamental rights are certain rights or civil liberties that are the guaranteed to all persons and citizens by the Constitution of Bangladesh, i.e. the rights and privileges prescribed in Part III of the Constitution of Bangladesh. On the other hand, human rights are certain inalienable rights inherent to all human beings. Human rights are expressed and guaranteed by law through treaties and conventions, customary international law, and general principles of international law. International conventions and declarations such as the Universal Declaration on Human Rights, 1948; the International Covenant on Civil and Political Rights, 1966 and its optional Protocols; and the International Covenant on Economic, Social and Cultural Rights, 1966 govern international human rights law and are reflected in domestic legislations. It is evident that there are many similarities and overlaps between fundamental rights and human rights; however, it can be argued that there is no necessary connection between the two bodies of rights.

Role of International Law in Part III:

The Court can take into account international conventions and covenants to aid the interpretation of provisions of Part III, particularly to determine the implicit rights in the fundamental rights like the right to life and liberty which are not enunciated in the constitution.[1]

“The national courts should not… straightaway ignore the international obligations which a country undertakes. If the domestic laws are not clear enough or there is nothing therein the national courts should draw upon the principles incorporated in the international instruments.”[2]

Reasonable Restriction:

The HCD has held that the term restriction also includes ‘prohibition’.[3]On the question of when a restriction can be said to be reasonable, the HCD has opined that the reasonability of a restriction will be depend on the circumstances of each case but it must be an objective standard based on the ordinary prudent man test for a given circumstance.[4]

Due Process:

Article 31 and 32 of the Constitution is an analogue enunciation of the concept of ‘due process’ in the United States.[5]Only a natural person is entitled to the protection prescribed by Article 31 of the Constitution.[6]Article 31and 32 also protects individuals who are not Bangladeshi citizens but for the time being are in Bangladesh.[7]

The right to life is also relevant in case of children of poor families, who do hazardous work to provide for their families. The HCD in Ain-O-Salish Kendra v. Bangladesh, issued recommendations in line with Article 31 and international conventions relating to rights of children by stating that the state has the duty to provide children with a healthy atmosphere, education and a good living standard for their families.[8]Similarly on the question of eviction of residents of slums, on the basis of Article 31 and 32, the HCD has directed that they must not be evicted until an alternative arrangement of rehabilitation plots made and allotted to the residents of the slum.[9]The wholesale eviction of sex-workers thus depriving them of their livelihood was held by the HCD to be a violation of Article 31.[10]

The right to life also include the right to security of life,[11]protection against natural disasters,[12]protection of health,[13]right to unadulterated food,[14]protection of the environment.[15]

Right to Equality:

Art 27 of the Constitution provides every citizen with the right to be treated equally before the law and the right to equal protection of the law. Therefore, any discriminatory measure or treatment by the state may be challenged on grounds of violation of Article 27. However, in order for a claim of violation of Article 27 to succeed the petitioner must first establish before the court that his claim is legal.[16]Furthermore, a complaint of discrimination can only be made before the court by a person whose right to equality has been impinged.[17]

Doctrine of Classification:

Article 27 of the Constitution does not guarantee absolute equality requiring the law to treat all persons in the same manner.[18]Therefore, the right to equality basically means that persons under like circumstances should be treated alike in case of both conferment of privileges and imposition of liabilities.[19]This Doctrine was applied by the AD in S.A. Saburto justify why someone can be disqualified from running for public office (elected office).[20]Similarly, in Secretary, Ministry of Establishment v. Md. Jahangir Hossain, the AD held that appointment of only some and refusal to appoint others from the list of Mujibnagar employees which was prepared by the government was discriminatory and violation of Article 27.[21]However, alternatively, there are multiple situations where the AD has rejected the argument that a certain specific collection of individuals form a ‘class’ and hence, they were ineligible to argue that they were discriminated against.[22]

The AD has held that the exclusion of some candidates who passed the BCS written examination without providing any reason to that affect nor allowing any opportunity to any of them to be heard is tantamount to discrimination.[23]The inequality in the payment of PA-cum-stenographers of the Supreme Court was held to be discriminatory by the AD.[24]The HCD has held that two similarly situated companies must be treated in the same manner and are entitled to the same benefits.[25]

The classification that is made must be reasonable and must further the purpose for which it is made. Likewise, the restrictions on the sponsors and directors of banks and financial institutions and their family members from sponsoring or being appointed as directors or CEOs of any insurance company has been held to be a reasonable classification; made for the purpose of preventing monopolies in the capital market.[26]

There is a presumption of constitutionality of a legislative classification and it is the burden of the petitioner who is challenging the said legislation to prove discrimination.[27]


[1]Bangladesh National Women Lawyers Association v. Ministry of Home Affairs, (2009) 61 DLR 371;H.M. Ershad v. Bangladesh, 2001 BLD (AD) 69, 70; State v. Metropolitan Police Commissioner, (2008) 60 DLR 371. 

[2]H.M. Ershad v. Bangladesh, 2001 BLD (AD) 69, 70.

[3]Oali Ahad v. Bangladesh, (1974) 26 DLR 376.

[4]Oali Ahad v. Bangladesh, (1974) 26 DLR 376.

[5]Mujibur Rahman v. Bangladesh, (1992) 44 DLR (AD) 111 (per Rahman J).

[6]Elias Brothers (Md) Pvt. Ltd. v. Bangladesh, (2011) 16 BLC 327.

[7]HFDM De Silva v. Bangladesh, (1997) 2 BLC 179.

[8]Ain-O-Salish Kendra v. Bangladesh, (2011) 63 DLR 95.

[9]Alauddin Khan v. Bangladesh, (2009) 14 BLC 831; Ain-O-Shalish Kendra v. Bangladesh, (1999) BLD 488.

[10]B.S.E.H.R. v. Bangladesh, (2001) 53 DLR 1.

[11]Bangladesh Jatiya Mahila Ainjibi Samity v. Ministry of Home Affairs, 2008 BLD 580 (concerning child trafficking)

[12]Human Rights for Peace v. Bangladesh, (2011) 63 DLR 71.

[13]Dr. Mohiuddin Farooque v. Bangladesh, (1996) 48 DLR 438.

[14]Human Rights for Peace v. Bangladesh, (2010) BLD 125.

[15]Dr. Mohiuddin Farooque v. Bangladesh, (2003) 55 DLR 69 (concerning environmental pollution); BELA v. Bangladesh, 2010 BLD 185 (concerning the extraction of stones from river beds); Salimullah v. Bangladesh, (2003) 55 DLR 1; Human Rights for Peace for Bangladesh v. Bangladesh, (2009) 14 BLC 759 (concerning the protection of river channels from obstruction).

[16]NCTB v. Shamsuddin, (1996) 48 DLR (AD) 184; Abdur Rahman v. Ministry of LGRD, (2005) 10 BLC (AD) 179.

[17]BRAC v. Professor Mozaffar Ahmed, 2002 BLD (AD) 41.

[18]S.A. Sabur v. Returning Officer, (1989) 41 DLR (AD) 30.

[19]S.A. Sabur v. Returning Officer, (1989) 41 DLR (AD) 30.

[20]S.A. Sabur v. Returning Officer, (1989) 41 DLR (AD) 30.

[21]Secretary, Ministry of Establishment v. Md. Jahangir Hossain, (1999) 51 DLR (AD) 148.

[22]Secy. Aircraft Engrs. of Bangladesh v. Registrar of Trade Union, (1993) 45 DLR (AD) 122; Bangladesh Retired Government Employees Welfare Association v. Bangladesh, (1999) 51 DLR (AD) 121; AHM Mustain Billah v. Bangladesh, (2005) 57 DLR (AD) 41; CCIE v. Faruk Ahmed, (2007) 12 BLC (AD) 44; Delwar Hossain Mollah v. Bangladesh, (2007) 15 BLT (AD) 124.

[23]Dr. Abeda Begum & others v. Public Service Commission, (2007) 59 DLR (AD) 182.

[24]Bangladesh v. Shamsul Haque, (2007) 59 DLR (AD) 54.

[25]Bangladesh Edible Oil Ltd. v. National Board of Revenue, (2006) 11 BLC 35.

[26]Nasreen Fatema v. Bangladesh, (1997) 49 DLR 542 (affirmed in (1998) 3 BLC (AD) 190).

[27]S.A. Sabur v. Returning Officer, (1989) 41 DLR (AD) 30.

The Case of Shamima Begum: International Law, and the Laws of UK and Bangladesh

In 2015, Ms Shamima Begum, then a 15-year-old a British citizen living in London travelled to Syria to join the so-called Islamic State. Her fate was unknown until recently when Ms Begum was discovered in a refugee camp in Syria. On 19 February 2019, the British Home Office in a letter delivered to Ms Begum’s family revoked her British citizenship. Now, the 19-year-old wishes to return to the United Kingdom (UK). The aim of this piece is to examine whether Ms Begum is a Bangladeshi citizen as has been claimed by the Home Office and subsequently, contradicted by the Government of Bangladesh.

Article 1 of the 1930 Convention on Certain Questions Relating to the Conflict of Nationality Law states that, ‘it is for each State to determine under its own law who are its nationals. This law shall be recognised by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognised with regard to nationality’.

Thereafter, in 1955, the International Court of Justice in the Nottebohm case, after examining the relevant practice of States, defined nationality as ‘a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties’.

Generally, the acquisition of nationality of a state is based either on jus sanguinis (born of parents who are nationals) and jus soli (born within the territory of the state). Nationality can also be acquired by a foreign national by ‘naturalization’ which requires a certain minimum period of residence in the state whose nationality is sought.

Nations have the general freedom and autonomy to define and administer their own laws and regulations pertaining to citizenship, as long as they do not contravene their obligations under international law. One such obligation under international law pertaining to nationality and citizenship may be said to be the obligation to not deprive a person of their nationality so as to render them stateless. A person may be rendered stateless either because they were a prioridenied a nationality or because they were subsequently deprived of their nationality.

It is widely held that no general right to nationality exists in international law nor is there any obligation of States under customary international law to avoid statelessness. Hence, the ‘obligation of States to avoid statelessness’ only exists under specific treaty commitments and the United Kingdom happens to be a party to one such treaty.

Article 8(1) of the 1961 Convention on the Reduction of Statelessness, to which the United Kingdom is a State-party (but not Bangladesh), directs a State; in this case: the United Kingdom, to not render a person stateless by depriving him or her of its nationality.

In the United Kingdom, Section 40(2) of the British Nationality Act, 1981 states that, a person may be deprived of his or her citizenship if such ‘deprivation is conducive to the public good’. Furthermore, Section 40(4)of the same Act, mandates that, an order to deprive a person of his or her citizenship must not make that person stateless. Section 40(4) is basically the domestic reproduction of Article 8(1) of the 1961 Convention. Hence, the Home Office is authorised by law to revoke the citizenship of an individual provided it does not render that individual stateless.

The British Government is claiming that Ms Begum has both Bangladeshi and British citizenship. Consequently, the revocation of her British citizenship would not be illegal under international law or the domestic law of the UK. On the other hand, the Government of Bangladesh has unequivocally stated that Ms Begum is not a Bangladeshi citizen and she has never applied to become one.

It is understandable why there is so much confusion surrounding the question of Ms Begum’s Bangladeshi citizenship. This is so because the laws and regulations relating to citizenship in Bangladesh are scattered across five separate legal instruments: the Citizenship Act, 1951; Bangladesh Citizenship Rules, 1952; the Bangladesh Citizenship (Temporary Provisions) Order, 1972; Bangladesh Citizenship (Temporary Provisions) Rules, 1978; and the Naturalization Act, 1926, as well as multiple Statutory Regulatory Orders (SROs) issued by the Government. This lack of clarity has largely remained unamended due to a dearth of litigation on citizenship laws and regulations in Bangladesh.

Consequently, one is forced to turn to the decisions of the Special Immigration Appeals Commission (SIAC) of the United Kingdom to extract the meaning and interpretations of the relevant Bangladeshi laws and regulations on citizenship. This lack of clarity in Bangladeshi citizenship laws and regulations has been recognised even by the SIAC.

For present purposes two SIAC decisions are important: the December 2017 and November 2018 decision in G3 v Secretary of State for the Home Department and E3 and N3 v The Secretary of State for the Home Department respectively. Both these cases are regarding the deprivation of citizenship of supposed British-Bangladeshi nationals on alleged terrorism and national security grounds. The applicable provisions of the citizenship laws and regulations of Bangladesh relevant to Ms Begum’s situation and their respective SIAC interpretations are as follows:

Section 5 of the Citizenship Act, 1951 states that, a person born outside Bangladesh ‘shall be a citizen of Bangladesh by descent’ if either of his or her parents is a citizen of Bangladesh at the time of his or her birth. Additionally, if both the parents are only citizens of Bangladesh by descent then the birth of their child must be registered at the Bangladesh Consulate or Mission in that country in order for the child to claim Bangladeshi citizenship.

Furthermore, Rule 9 of the Bangladesh Citizenship Rules, 1952 states that, any person claiming ‘citizenship by descent’ under the aforementioned Section 5 of the Citizenship Act, 1951, has to apply to a designated local government office in order to obtain the relevant proof of citizenship.

The Commission in G3 (para 70) has held that the aforesaid provisions make it manifest that citizenship by descent in Bangladesh arises at birth. This interpretation is also supported by the use of the phrases ‘shall be a citizen of Bangladesh by descent’ and ‘person claiming citizenship by descent’ in Section 5 of the Citizenship Act, 1951 and Rule 9 of the Bangladesh Citizenship Rules, 1952 respectively. Therefore, a person is automatically a citizen of Bangladesh at birth if either of his or her parents is a Bangladeshi citizen by birth (i.e. was born in Bangladesh).

The application referred to in aforementioned Rule 9 is merely an application to obtain proof or certificate of citizenship. It has no legal effect on the status of citizenship, which has been acquired at birth. This inference is also supported by the nature of documents that needs to be submitted along with an application under Rule 9.

According to the information currently available, Ms Begum was born in the United Kingdom, at least one of her parents is a Bangladeshi citizen by birth. Hence, according to Section 5 of the Citizenship Act, 1951 and Rule 9 of the Bangladesh Citizenship Rules, 1952, Ms Begum is ‘a citizen of Bangladesh by descent’. Her citizenship is not contingent upon whether she holds a Bangladeshi passport or any other proof of citizenship or whether she has submitted any application for the same, or whether she has ever visited Bangladesh. It is evident from the aforementioned provisions that holding a passport or a proof of citizenship or applying for the same or even visiting Bangladesh has no impact on the legal fact of citizenship.

Now, the question is whether Ms Begum can simultaneously hold both British and Bangladeshi citizenship. The United Kingdom permits dual citizenship. However, Bangladesh generally prohibits the same.

Section 14 of the Citizenship Act, 1951 of Bangladesh prohibits dual citizenship by stating that, if a citizen of Bangladesh and simultaneously holds the citizenship of another State, then he or she must renounce the citizenship of that other State, failing which he or she shall cease to be a citizen of Bangladesh. However, this provision is not applicable to any person below the age of 21 years. In Ms Begum’s case, the aforesaid provision is inapplicable as she is only 19 years of age. Consequently, she can still simultaneously be a national of the United Kingdom and Bangladesh, at least until she turns 21.

Additionally, Article 2B(1)(i) of the Bangladesh Citizenship (Temporary Provisions) Order, 1972, states that, a person shall be disqualified from citizenship of Bangladesh if he or she ‘owes, affirms or acknowledges, expressly or by conduct, allegiance to a foreign state’. The Commission in G3 (para 63) has confirmed that, the aforesaid provision is confined to persons who were alive during the commencement of the aforesaid Order in 1972, and the Commission in E3 and N3 (para 69) has also held that, in light of the historical context, the aforesaid provision is only concerned ‘with allegiance to a hostile state’.

Furthermore, the proviso to the aforementioned Article 2B(1) clarifies that, a citizen of Bangladesh shall not cease to be a citizen merely by reason of being a citizen or acquiring the citizenship of another State. The Commission in E3 and N3 (para 69), after criticising the proviso for being ‘poorly conceived and poorly drafted’, concluded that its purpose is to clarify that the bare fact of dual nationality would not disqualify someone from being a citizen of Bangladesh.

Moving on to Article 2B(2) of the Bangladesh Citizenship (Temporary Provisions) Order, 1972. It authorises the Government of Bangladesh to grant Bangladeshi citizenship to any person who is a citizen of any other State through the issuance of an official notification.

Subsequently, purportedly, on the basis of the aforementioned provision, on 18 March 2008, the Government of Bangladesh issued a Statutory Regulatory Order (SRO) No. 69 Law/2008 (2008 Instruction) in Bangla (online version unavailable). It provides that a citizen of Bangladesh can acquire and concurrently hold the citizenship of the United Kingdom. Also, no special permission or authorisation needs to be acquired in this regard nor are there any sort of formalities required to be fulfilled in order to benefit from this Instruction.

Unofficial translations of this 2008 Instruction have been used by the Commissions in G3 (para 11), and E3 and N3 (para 17). This Instruction has also been criticised by the Commission in E3 and N3 (para 77) for being ‘imprecise and discursive’. Ultimately, the Commissions in G3 (para 74), and E3 and N3 (para 79) have held that the 2008 Instruction does not apply to cases where British citizenship has been acquired at birth. It only applies to Bangladeshi nationals who have subsequently acquired British nationality such as by taking oath of allegiance. The Commission in E3 and N3 (para 79) further added that the 2008 Instruction does not have retrospective effect. Therefore, the 2008 Instruction is clearly not applicable to Ms Begum since she acquired British citizenship by birth.

It is evident that the relevant legal provisions are far from precise and efficient. However, it is abundantly clear that Ms Begum is legally a citizen of Bangladesh until she attains the age of 21 years. Thus, the claims of the Government of Bangladesh and some others that Ms Begum is not a Bangladeshi citizen owing to the fact that she does not hold a Bangladeshi passport or any other proof of citizenship, has never submitted any application for dual nationality, and has never visited Bangladesh, have no legal basis.

Therefore, as of February 2019, Ms Begum is legally a Bangladeshi citizen. Consequently, the decision of the Home Office to deprive her of her British citizenship does not legally render her stateless. Hence, the measure is not unlawful insofar as the issue of statelessness is concerned. Although, it may very well be unlawful on other grounds, whether under British law or even international law.

More importantly, it is unlikely that Ms Begum will be provided with or be able to obtain any proof of her Bangladeshi citizenship or be able to utilise any of the benefits of her citizenship such as consular access considering the fact that currently she is residing in a refugee camp in Syria. Consequently, for all intents and purposes, she is, de facto, stateless. Regardless of what her alleged crimes may be, rendering her stateless is not justified.

By revoking citizenship of Ms Begum, the British Government is signifying that a law-abiding person is British where as an alleged criminal, and in this case an alleged terrorist, is a Bangladeshi. There is something fundamentally wrong with the message that this action implicitly broadcasts to the world and to British citizens who are children of immigrants.

A shorter version of this article was originally published in EJIL: Talk! on 14 March 2019. It is available at https://www.ejiltalk.org/shamima-begum-may-be-a-bangladeshi-citizen-after-all/

Myanmar’s Disingenuous Activities Regarding Rohingya Repatriation

Three key excerpts from Myanmar State Chancellor Aung San Suu Kyi’s speech at 43rd Singapore Lecture in Singapore on 21 August 2018 are as follows:

  1. ‘The returnees have to be sent back by Bangladesh. We can only welcome them at the border.’
  2. ‘Bangladesh would also have to decide how quickly they want the process to be completed.’
  3. ‘We have been ready to receive them [i.e. the Rohingyas] since the 23rd of January [of 2018], in accordance with the MOU that was signed last November [of 2017].’

The aforementioned statements clearly illustrate the diplomatic and rhetorical strategy that Myanmar is employing to shift the blame from itself to Bangladesh for the delay in the repatriation of the Rohingya refugees, all the while disregarding the pertinent issues of justice for the atrocities, the creation of an atmosphere that would incentivise the voluntary, safe, and dignified repatriation of the Rohingyas and guaranteeing the restitution of their rights and properties.

Her statements regarding the repatriation of the Rohingya refugees indicate; albeit quite disingenuously, that Myanmar has always been ready to welcome back the Rohingyas; even though she and the entire State apparatus refuses to call them by their ethnic name, and that the delay in the repatriation process is Bangladesh’s fault, but she does not go into further detail or explanation as to why and how is Bangladesh delaying the implementation of the Memorandum of Understanding (MOU) signed with Myanmar on the issue of the repatriation of Rohingya refugees.

It seems Myanmar is trying to diplomatically; at least rhetorically, outmanoeuvre Bangladesh on the issue of the repatriation of the Rohingya refugees and trounce the calls for justice of the atrocities committed in Rakhine in and after August 2017. It is high time that Bangladesh toughen its stance on the issue of repatriation and adopt appropriate measures to diplomatically and legally refute Myanmar’s distorting rhetoric and to pressure it to perform its stated obligation vis-à-vis the Rohingyas.

Towards that end, Bangladesh should issue statements refuting and rectifying the claims and facts stated by Aung San Suu Kyi in her speech in Singapore on 21 August 2018; by highlighting the inconsistencies and misrepresentations, and the actual situation regarding the repatriation process. It is feared that Bangladesh’s silence and non-refutation of such false claims and misrepresentations by Myanmar may release Myanmar from international scrutiny and pressure and thereby, transfer the blame for the lack of visible progress on the repatriation front, on Bangladesh.

Silence also renders credibility to Myanmar’s claims that, since 23 January 2018, it has been acting in good faith and is doing or has done everything necessary from its end to initiate the ‘voluntary, safe, and dignified’ repatriation of the Rohingyas; which is not the case as has been evidenced by numerous reports and human rights organisations. Furthermore, it is estimated that, every single day, on average, Bangladesh is spending two million US dollars; discounting the foreign aid, on sheltering the Rohingya refugees. Thus, it is very much in Bangladesh’s interest to speed up the process of repatriation and it further strengthens the argument for Bangladesh’s claim for reparations from Myanmar in the future.

Recently, at the behest of Myanmar, Bangladesh has agreed to change the terminology it is using to describe the Rohingya refugees in the identity cards that are being issued to the refugees from ‘Myanmar nationals’ to ’displaced persons from Rakhine State’. This alteration, though as cosmetic as it may seem, indicates that Myanmar does not intend to recognise the Rohingyas as citizens nor does it intend on granting them citizenship rights. Considering the fact that granting of citizenship rights is a necessary precondition for voluntary repatriation according to the Rohingya refugees. Therefore, by not guaranteeing citizenship rights to the Rohingyas, Myanmar, is in fact, diminishing if not ending the prospect of the Rohingya’s voluntary repatriation. Bangladesh, by agreeing to such an alteration; whatever may have been the reason behind it, may have granted legitimacy to Myanmar’s claims, and impaired its own interests in the quick and voluntary repatriation of the refugees.

Stacking on the pre-existing fears and concerns, the Human Rights Watch has recently published a report alleging that many Rohingya returnees have been tortured and forced to confess that they are or were members of the Arakan Rohingya Salvation Army (ARSA) by the Myanmar Border Guard Police (BGP). Nonetheless, Myanmar expects that the international community would deem the State Chancellor’s statements and consequently, the State’s intentions, to be honest, sincere, and founded on good faith. However, the reality may be the exact opposite. It is feared that Myanmar is only playing for time, awaiting the moment the international community loses interest in the Rohingyas and moves on to the next ensuing humanitarian crisis.

A version of this article was originally published in The Diplomat Magazine on 28th August 2018. It is available at: https://thediplomat.com/2018/08/myanmar-remains-disingenuous-when-it-comes-to-rohingya-repatriation/

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

Law and Politics of International Criminal Liability for ‘Ethnic Cleansing’ in Rakhine

In recent times, numerous international rights organisations and leaders across the world have been arguing for the referral of the ‘ethnic cleansing’ campaign of the Rohingyas in the Rakhine by the Myanmar military to the International Criminal Court (ICC).  With every passing day, the repatriation of the Rohingyas, and due recognition of their rights and freedoms seems to be moribund. If nothing else, the world at least owes the Rohingyas an acknowledgement of their pain and suffering, as a fact, by holding the culprits and the instigators of the ethnic cleansing campaign accountable under the rules of international law. This piece explores the relevant international law and political considerations involved in such an endeavour.

The information and evidence collated by various organisations including the United Nations (UN) and their statements issued to that end, point to the fact that the atrocities committed in Rakhine may amount to the international crimes of genocide and crimes against humanity enunciated in Articles 6 and 7 respectively of the Rome Statute of the International Criminal Court, 1998 (Rome Statute). However, it must be noted that Myanmar is not a state party to the Rome Statute. Hence, the ICC cannot automatically exercise its jurisdiction over the alleged crimes perpetrated in Myanmar. However, as per Article 13(b) of the Rome Statute, the UN Security Council (UNSC); acting under Chapter VII of the Charter of the United Nations, through the adoption of a resolution can refer a situation, in which crimes such as genocide and/or crimes against humanity appear to have been committed, to the Prosecutor of the ICC, even if the crimes have been perpetrated in a state that is not a signatory to the Rome Statute. Hence, such a referral by the UNSC would be required in the present scenario to give the ICC jurisdiction to try the alleged crimes committed in the Rakhine since Myanmar is not a party to the Rome Statute.

The international law on the issue is quite straightforward but the politics; not so much. It is highly likely that any UNSC resolution with regard to referral to the ICC would receive majority support but will ultimately fail due to a veto by China and Russia.

China will veto the resolution because of its historically close ties with Myanmar and its geopolitical fight with India to maintain its influence over the country. However, in recent times, China is under increasing scrutiny for its treatment of the Muslim Uyghur minority in Xinjiang. An affirmative vote in the UNSC could be an opportunity for it to recoup some of its lost credibility in the Muslim world. Moreover, China is no stranger to atrocities of mass murder and rape of innocents. Recently, we marked eighty-years of the infamous Nanjing Massacre perpetrated by Japanese troops in the six weeks that followed 13 December 1937. China is also no stranger to the sentiments that ensue when the commission and the true extent of the atrocities are denied and challenged respectively. The Nanjing Massacre is still fresh in the Chinese national memory, and disputes regarding its nature and extent continue to be a bone of contention in Sino-Japanese relations.

China and India are at loggerheads with each other to support the Myanmar government. Preferably, both countries should outright support a referring resolution in the UNSC. Regardless of India’s stance, China should nonetheless support such a referring resolution as a mark of respect to the horrors its people endured in the past and to demonstrate its commitment to the rules-based international order, over which it intends to exact considerable influence and authority as a super-power. Hence, even if the decision entails short-term political costs, it is more beneficial in the long term and more importantly, it is just.

Now, Russia is unlikely to unilaterally veto a referring resolution. It too has a significant Muslim minority, which it would not want to antagonise over a country which is geopolitically and economically insignificant and also keeping in mind its close ties with Bangladesh; the country that is now home to over 700,000 Rohingya refugees. Additionally, Bangladesh needs to actively and persistently advocate and insist on such a measure in the UN and across its relevant diplomatic missions. Chastening the perpetrators of the ‘ethnic cleansing’ is also in Bangladesh’s interest as it is the best way of reassuring the Rohingyas of their safety and security in their homeland, thus moving a step towards their voluntary repatriation. Bangladesh, too, is no stranger to the crimes of genocide and crimes against humanity, and it too understands the sentiment when the commission and magnitude of such crimes are denied and challenged respectively.

At the end of it all, a ‘people’ who have been subjected to mass killings, rape, and destruction of their homes deserve justice, and such atrocities and their perpetrators; no matter the political and economic ramifications; must be condemned and punished.

This article was originally published in The Daily Star on 3rd March 2018. The original version is available at: https://www.thedailystar.net/opinion/human-rights/search-justice-1542661