Principle of Non- Refoulement : Bangladesh and India Perspectives

Mohammed Shahjahan:

The Rohingya muslims from the Rakhine State formerly known as Arakan of Myanmar bordering Bangladesh constitute, per the United Nations Organization (UNO), the most persecuted minority community in the world.This being a known fact for decades since Myanmar (Burma) gained independence on 4 January, 1948 has now been recognized by courts of law across the globe with the International Court of Justice (ICJ) on top of them all by way of the verdict in The Gambia Vs. Myanmar.

Having been subjected to inhumane torture, oppression and acts of genocide by both State and Non-State actors within Myanmar, more than a million of Rohingyas fled to Bangladesh over the last couple of years. Several thousands of them sought safety and shelter in places including Assam and the outskirts of Jammu and Kashmir in India as well.While these overwhelming number of Rohingya refugees stay sheltered in a total of 34 make-shift camps at Ukhiya and Teknaf Upazillas in Cox’sBazar, the local people hosting the refugees appear to be, if the mainstream and social media is anything to go by, making incessant demands for the refugees to be sent back to the country of origin, e. g, Myanmar at any cost.

In any given refugee situation, there are three vaible or durable solutions recognized and practised by actors including the UNO and they are Repatriation, Resettlement and Naturalization. Simply put, Repatriation refers to the process of sending the refugees back to the country of origin from the country of refuge and Resettlement means the process of letting the refugess settle down permanently in third countries beyond the countries of origin and refuge while Naturalization is the process of granting citizenship to the refugees by the country of refuge. Repatriation being the best of these three options, countries of refuge usually  opt for the same.

Repatriation as a durable solution to the refugee crisis is clothed with corollary conditions-one being the utmost adherence to the principle of non-refoulement. In legal parlance, non-refoulement is indicative of the practice of not forcing refugees to return to the country of origin wherein they are liable or likely to be subjected to persecution. In other words, Repatriation is a volutary process which can not resorted to unless and until overall situations on the ground in the country of origin are conducive to life and proprty of the refugees. As innumerable reports by reputed international organizations suggest, things have not budged an inch for the better for the Rohingyas in Myanmar for repatriation to be taken up till date.

Since the recent outbreak of the influx of Rohingya refugees, Bangladesh under a Memorandum of Understanding (MoU) reached earlier with Myanmar, has tried taking up repatriation at least twice, but in vain. The refugees concerned simply refused to show up at the eleventh hour citing risks to their lives in Myanmar. As a result, Bangladesh has had to back down for the time being reiterating that non-refoulement will be execrised and respected. On the other hand, the Government of India led by Narendra Modi sent some Rohingyas back to Myanmar against their will in flagrant violation of non-refoulement, judicial precedents laid down by indian courts of law as well as other UN conventions and protocols as opposed to what came to pass here in Bangladesh.

Government functionaries of both Bangladesh and India tend at times to contend that strict adherence to non- refoulement is not meant for them as they are not signatories to the Convention Relating to the Status of Refugees,1951 and the corresponding Protocol Relating to the Status of Refugees, 1967. The fallacy of such a contention has adequately been addressed by the competent Courts of Law in both the countries. In what is perhaps the only Case-Law from Bangladesh jurisdiction bearing direcly upon the issue at hand, i.e., the Case of Refugee and Migratory Movements Research Unit (RMMRU) Vs. Government of Bangladesh (Writ Petition No. 10504 of 2016), a Division Bench of the High Court Division of the Supreme Court of Bangladesh per Mr.  Justice Moyeenul Islam Chowdhury held, inter alia, that “ Though Bangladesh has not formally ratified the Convention relating to the Status of Refugees, yet all the refugees and asylum-seekers from scores of countries of the world to other countries have been regulated by and under the Convention for more than 60 (Sixty) years. The Convention by now has become a part of customary international law which is binding upon all the countries of the world, irrespective of whether a particular country has fromally signed, acceded to or ratified the Convention or not. Indisputably Bangladesh is a signatory to the Convention against Torture and other Cruel, inhuman or degrading Treatment or Punishment, 1987. Article 3 of this Convention of 1987 provides that no State Party shall expel, return (“Refouler”) or extradite a person to other State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” This Writ Petition related to a Rohingya refugee convicted by the trying magistrate in Chattogram under Section 14 of the Foreigners Act, 1946; the convict even after serving out his term of imprisonment continued to be in jail. By way of the said judgment, the convict was released, but not returned or extradited to Myanmar. Rather, he was handed over to RMMRU for coordinating with UNHCR for shelter in the refugee camps in Cox’sBazar.

We may now turn to the indian jurisdiction with a view to shedding light on what the Supreme Court of India and various High Courts there hold on non- refoulement.In the case of  State Of Arunachal Pradesh Vs. Khudiram Chakma  reported in 1994 AIR 1461 & 1993 SCR (3) 401, the Supreme Court of India held, inter alia, that a person seeking refuge or asylum in a State can not be sent back to the State from where he has arrived if the risk of persecution is there. In the case of  NHRC Vs. State of Arunachal Pradesh   reported in 1996 AIR 1234 & 1996 SCC (1) 742, the Supreme Court of India emphasized on the protection of rights of the refugees in India as embodied in the Constitution of India holding further that  rule of law must be upheld and the right to life extends equally to both citizens and non-citizens. The Supreme Court of India relying on the principle of non- refoulement in this case directed the government not to refoule the Chakma refugees who were the nationals of Bangladesh. In the case of  Ananda Bhavanani alias Swami Geethananda, Ananda Ashram, Pondicherry Vs. Union of India  reported in 1991 MLW (Crl) 393, the Madras High Court held that in the absence of any threat to the national security posed by refugees, a deportation order would amount to violation of the principle of natural justice. The Andhra High Court in the case of P. Nedumaran Vs. Union of India  reported in 1993 (2) ALT 291 & 1993(2) ALT Cri 188 allowed Srilankan refugees to stay in India subject to the determination of their status as refugees by the UNHCR.In the case of Ktaer Abbas Habib Al Qutaifi Vs. Union of India & Others  reported in 1999 Cri. L.J 919, the Gujrat High Court upheld the principle of non- refoulement in favour of two Iraqi refugees who were persecuted in Iraq for refusing to join military operations there. Placing reliance on Article 33 of the Convention Relating to the Status of Refugees,1951, Article 3 of the Universal Declaration of Human Rights,1948 and Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,1987 together with the indian constitutional provisions, the Gujrat High Court endorsed right of non- refoulement. But back in 2018, in what is seen as a sharp contrast to all these precedents cited herein above, led by Mr. Justice Ranjan Gogoi hailing from Assam where anti-muslim sentiments reign supreme, the Supreme Court of India refused to Stop Deportation of 7 Rohingyas.

Political stands of the respective governments and the latest judicial approaches adopted by the Supreme Courts of both Bangladesh and India with regard to the principle of non- refoulement taken together, Bangladesh undoubtedly has the upper hand over her counterpart. Of course, there being no room for complacency as regards the Rohingya issue on the part of Bangladesh, all possibilities of making sure that an early repatriation of the refugees takes place in compliance with domestic and international law should be explored in all earnestness.

Mohammed Shahjahan : Advocate, Supreme Court of Bangladesh.

shahjahanmohammed38@gmail.com