The Right to Seek Asylum in Bangladesh: A Constitutional and Legal Perspective

Faijul Islam : The right to seek asylum is a fundamental human right based on international legal instruments including the Universal Declaration of Human Rights (UDHR) and the 1951 Refugee Convention & Optional protocol of 1967 for the broader concept of asylum. While Bangladesh is not a signatory to the Refugee Convention it has historically provided shelter to those fleeing persecution most notably the Rohingya refugees from Myanmar.

However the absence of a formal proper legal framework governing asylum raises critical constitutional vacuum in this segment and legal questions. This article examines the extent to which the right to seek asylum is protected under Bangladesh’s constitutional framework regarding relevant case laws and international legal obligations for the ends of Justice.

Constitutional Provisions and Asylum Protection

The Constitution of Bangladesh as the supreme law of the land does not explicitly recognize the right to seek asylum. However, several constitutional provisions can be interpreted as offering a very well known  protection to asylum seekers and refugees and give them proper constitutional rights for a peaceful life of asylum seeking persons.

Article 25: Commitment to International Law and Peace

Article 25 of the Constitution provide  that the state shall take initiative for international peace and respect for international law. This provision establishes a constitutional obligation to adhere to international human rights norms ( Jus Cogens)including principles related to asylum and refugee protection for the asylum perspective . The government’s decision to provide refuge to Rohingya refugees despite not being a party to the Refugee Convention reflects inherent  commitment to international humanitarian principles from this perspective.

Article 31: Right to Protection of the Law

Article 31 provide  that every person irrespective of nationality is entitled to the protection of the law and cannot be deprived of life, liberty or property except in accordance with the law itself. The broad perfect formulation suggests that asylum seekers in Bangladesh’s legal jurisdiction are entitled to legal safeguards preventing arbitrary detention  or forced repatriation without due process of legal outcome  for the ends of Justice

Article 32: Protection of Life and Personal Liberty

The constitution of Bangladesh give guarantee under Article 32  which states that “no person shall be deprived of life or personal liberty save in accordance with law,” aligns with the international principle of non-refoulement which is a sophisticated principle  of refugee law that prohibits returning individuals to countries where they face excessive  persecution surely and his life will be at stake also. Moreover  Judicial interpretations of this provision have reaffirmed the state’s obligation to protect all persons within its territory  including asylum seekers.

Article 36: Freedom of Movement

Article 36 guarantees freedom of movement within Bangladesh but is explicitly restricted to citizens. Albeit the treatment of asylum seekers and refugees with respect to mobility remains a critical issue  as evidenced by restrictions imposed on the Rohingya population in camps in Cox’s Bazar. While security concerns may justify certain restrictions for a human rights-based approach necessitates a more balanced legal framework for asylum seekers around the world.

International Legal Obligations and Bangladesh’s Position

Although Bangladesh has not ratified the 1951 Refugee Convention or its 1967 Protocol so it remains bound by other international treaties that uphold asylum related rights, including:

1.Universal Declaration of Human Rights (UDHR), 1948: Article 14 states that everyone has the right to seek asylum from persecution. Henceforth UDHR fallowed by the most of the countries all over the world in addition it covers the civil political right as a human being. Conversely it is Pretty impossible to codify all the civil political right in constitution at a same time when the law makers had limitation of knowledge in the time of making contemporary constitution.

2.International Covenant on Civil and Political Rights (ICCPR), 1966: Protects the right to life liberty  and security for all individuals including asylum seekers. Though asylum seeking is one of Right whichever derived in modern time it has a strong effect in the development of human rights regarding in some cases right to seek asylum including right to life.

3.Convention Against Torture (CAT), 1984: Prohibits the return of individuals to countries where they may face torture or inhumane treatment. These legal instruments in conjunction with Bangladesh’s constitutional obligations create a framework within which asylum seekers must be treated in accordance with human rights principles to serve the best interest of the refugee people. Moreover principle of Non Refoulment is one of the basic principle of customary International Law that all the existing States should bound by the strong jus cogens named Principle of Non Refoulment.

Judicial Precedents and Legal Interpretation

Bangladesh’s judiciary has played an instrumental role in interpreting constitutional provisions to protect asylum seekers particularly in cases involving the Rohingya crisis.

HRPB vs Bangladesh (2017) – The Rohingya Crisis  Case

In the wake of the 2017 Rohingya influx  the Supreme Court of Bangladesh was petitioner vent forced repatriation. The ruling emphasized Bangladesh’s moral and legal duty to protect vulnerable populations of Rohingya and reinforced the principle of non-refoulement despite the absence of a domestic refugee law as Bangladesh is bound to follow the customary International Law. Bangladesh nowadays legally bound to serve the best interest of the refugee people because of approving initially the principle of non Refoulment in the greater perspective to bound the international principle including also Refugee Convention 1951 though Bangladesh not ratified the refugee Convention.

State v. Deputy Commissioner of Cox’s Bazar (2019)

This case addressed the forced repatriation of Rohingya refugees and reaffirmed judicial oversight in ensuring that no refugee is returned to Myanmar against their will in case of principle of non Refoulment.  The judgment highlighted Bangladesh’s obligation to follow international human rights standards even though  in the absence of formal legal instruments on asylum in Bangladesh at   a greater aspect of humanitarian crisis in the modern age.

Political Asylum and the Case of Sheikh Hasina (1981)

Following the assassination of Sheikh Mujibur Rahman  his daughter Sheikh Hasina sought asylum abroad for political safety . The initial circumstances surrounding her asylum underscored the importance of state protection in cases of political persecution making  a precedent for the legal and diplomatic aspects of asylum seeking Process. However political asylum now a most practicable term in international jurisprudence because of emergency situation & security purpose. For instance Edward Snoden, Dalai Lama from Tibetan, Basar Al Asad etc prominent figures are  also in the term of political asylum process due to their life security into their domestic country. So political Asylum process is one of the vital view point in the common political phenomena not only for mere persecution but also a part of International populist politics.

Challenges in Asylum Protection

Despite constitutional and judicial safeguards significant challenges persist in ensuring the protection of asylum seekers in Bangladesh:

Absence of a National Refugee Law: Bangladesh lacks a legal framework to regulate asylum claims leaving asylum seekers in legal uncertainty. Absence of Law is not a excuse to comply International principle in national prospect rather than unwilling to ratify the law to presume as a burden of National security.

1. Denial of Legal Status: Refugees particularly the Rohingya are treated as undocumented migrants rather than individuals with protection needs. They have no legal documents as a refugee, Migrant, Stateless person in Bangladesh till now.

2. Restricted Rights: Refugees face restrictions on employment, mobility, security and access to education and healthcare. Albeit there are absolute right for the refugee people for the ends of Justice and the host country bound to give them basic human rights as per the International Laws, Principle and Jurisprudence of customary International Law.

3. Political and Diplomatic Pressures: International and regional dynamics often influence government policies on asylum, sometimes resulting in policies that undermine asylum protection.

The Way Forward: Legal and Policy Recommendations

We need to Give  the humanitarian and legal imperatives surrounding asylum protection Bangladesh should consider the following reforms:

Enacting a National Asylum Law

A comprehensive legal framework should be introduced to establish asylum procedures define refugee status  and provide clear guidelines for protection. The law should affiliated  with international standards while addressing national security purpose  and socio economic considerations more specific the economic condition as a host country.

Strengthening Judicial Interpretation 

The judiciary should continue to play a proactive role in safeguarding asylum seekers’ rights  particularly in preventing arbitrary detention to the refugee,  forced repatriation to the domestic country , and discriminatory policies among the citizen and Common people.

Ratification of the 1951 Refugee Convention

While political considerations may influence Bangladesh’s decision  ratifying the Refugee Convention would enhance its international standing and provide a structured framework for managing asylum claims in Bangladesh to develop the socio economic stigma and First world countries will more willful to invest a huge amount of economic consideration to Bangladesh as their committed policy also.

Expanding Legal Rights for Refugees

We should Provide refugees with access to employment, education, shelter with security and healthcare would reduce dependency on humanitarian aid and contribute to their self-sufficiency benefiting both refugees and host communities in the statement of refugee status determination.

Regional and International Cooperation

Bangladesh should engage in diplomatic efforts to address root causes of displacement of people with seeking  financial and logistical support from the international community and negotiate durable solutions including third country resettlement programs. However in the modern edges Bangladesh is totally unable to resettle Rohingya people to the third world countries because of lacking in diplomacy, International regional politics as well as unwillingness of the  economically strong condition.

While the Bangladesh Constitution does not explicitly recognize the right to seek asylum, its provisions on human rights, coupled with international legal commitments, provide a foundation for asylum protection. Judicial precedents have further reinforced the state’s obligations under humanitarian principles.

However, the absence of a formal legal framework remains a significant gap in Bangladesh’s asylum policy regarding maintain the International standards. So far, to ensure that asylum seekers and refugees receive legal protection and humane treatment Bangladesh must adopt a national asylum law for making powerful judicial interpretation  and engage in constructive international cooperation for getting more verbose aid from the foreign Non state Actors. In a nutshell a structured and rights based approach to asylum protection would not only uphold Bangladesh’s constitutional upliftment and international commitments but also reinforce its reputation as a responsible member of the United Nations global community  in addressing forced displacement.

Writer is a Lecturer, Department of Law, Prime University of Bangladesh.