CHAPTER FOUR

NATIONAL LEGISLATION AND POLICY FRAMEWORK ON REFUGEES IN BANGLADESH

INTRODUCTION

The Rohingya population's flight from persecution in Myanmar is the main cause of Bangladesh's
severe refugee crisis. There are significant humanitarian needs as a result of the tremendous strain
that hosting almost a million Rohingya refugees has placed on the nation's infrastructure and
resources. Bangladesh has made an effort to offer interim shelter and aid, but it does not have a
complete national legal framework for refugee protection. Due to arbitrary decision-making and
insufficient responsiveness to their needs, this absence has left refugees vulnerable and deprived
of access to basic services like healthcare and education.

It is impossible to overestimate the significance of creating a national framework for laws and
policies. In addition to protecting refugees' rights, a strong legal framework would ensure
uniformity and clarity in the application of policies. Current ad hoc measures for refugees in
Bangladesh create logistical challenges and hinder long-term integration. A structured national
policy addressing refugees' unique needs would enhance crisis management and address
domestic concerns. This chapter explores the need for national legislation and policies to ensure
refugee protection amidst evolving humanitarian challenges.

4.1 CURRENT LEGAL AND POLICY FRAMEWORK

Bangladesh lacks specific refugee legislation. However, certain constitutional provisions and
general laws offer protection that can be extended to refugees within its jurisdiction. This section
analyzes these provisions and their application to refugees..

CONSTITUTIONAL PROVISIONS

1. Right to Protection of Law (Article 31)

Article 31 of Bangladesh's constitution protects "every person" within the country, including
refugees, guaranteeing legal safeguards against actions detrimental to their life, liberty, or property
unless done in accordance with the law. This ensures refugees have legal recourse against
arbitrary detention or deportation. .

2. Protection of Life and Liberty (Article 32)

Article 32 of the constitution, stating "No person shall be deprived of life or personal liberty save in
accordance with law," includes refugees, safeguarding their basic rights. However, refugees
sometimes face detention under immigration laws, making enforcement dependent on judicial
intervention

3. Safeguards Against Arrest and Detention (Article 33)

Article 33 provides procedural safeguards for "any person arrested," including refugees. These
safeguards include:

1. The right to be informed promptly of the reasons for arrest.

2. The right to consult with legal counsel.

3. Protection against arbitrary detention beyond 24 hours without being produced before a
magistrate .

4. Protection Against Torture (Article 35)

Article 35 prohibits torture or cruel punishment for "any person." This provision is particularly
relevant for refugees who may face risks of abuse during detention or while interacting with law
enforcement agencies. By prohibiting torture outright, the Constitution establishes a strong legal
basis for protecting refugees from inhumane treatment .

5. Prohibition of Forced Labor (Article 34)

Article 34 prohibits all forms of forced labor and declares such practices punishable by law.
Refugees often face exploitation in informal labor markets due to their lack of legal status and
economic vulnerability. This constitutional provision provides a safeguard against such
exploitation .

STATUTORY PROVISIONS

While constitutional provisions offer broad protections applicable to all persons within
Bangladesh, statutory laws provide specific mechanisms for regulating non-citizens' entry, stay,
and access to justice.

1. Foreigners Act 1946 : The Foreigner's Act is Bangladesh's main law for non-citizens,
regulating entry, stay conditions, and deportation. However, it doesn't differentiate between
refugees and other non-citizens. Section 3 grants the government broad authority to issue orders
concerning foreigners' entry and residence . Section 14 criminalizes violations of visa conditions or
unauthorized entry into Bangladesh . For refugees who enter Bangladesh without proper
documentation (as is often the case), this Act places them at risk of being treated as illegal
immigrants rather than individuals seeking asylum. Consequently, many refugees face detention
under this Act despite constitutional protections like Articles 31 and 32.

2. Legal Aid Act 2000

Bangladesh's Legal Aid Act theoretically provides free legal assistance to refugees, who are
recognized as economically vulnerable. However, language barriers, lack of awareness, and
restricted movement limit refugees' access to these services in practice .

3. Penal Code 1860

Refugees in Bangladesh are subject to the Penal Code but also protected by provisions
criminalizing offenses like human trafficking. (Section 370) and exploitation through forced labor
(Section 374) . These provisions can be invoked when refugees face abuse or exploitation within
Bangladesh.

4. Civil and Criminal Courts

In Bangladesh, refugees can use civil and criminal courts to resolve disputes or seek redress for
grievances under the country's general laws. For example, they can file cases for property disputes
or seek remedies for criminal offenses.

However, practical challenges such as lack of documentation proving identity or residence often
hinder their ability to utilize these legal avenues effectively.

Judicial Interpretation

Bangladesh's judiciary has occasionally played a role in interpreting constitutional provisions

favorably toward non-citizens:

1. In Abdul Latif Mirza v Bangladesh, the Supreme Court underscored that Article 31
guarantees protection under the law for all persons within Bangladesh's territory.

2. Similarly, courts have acknowledged that procedural safeguards under Articles 33 and 35
apply universally without distinction between citizens and non-citizens.

4.2 AD HOC AND HUMANITARIAN POLICIES

Bangladesh's refugee protection approach is largely ad hoc and humanitarian-based due to the
lack of national refugee law and non-accession to the 1951 Refugee Convention. This results in
reactive, temporary measures, leaving refugees, particularly the Rohingya, in a vulnerable state.
Humanitarian interventions have been central to Bangladesh's response to refugee crises.
Government and non-governmental groups collaborate to provide essential services like food,
shelter, and medical care during acute needs. However, these measures are designed for short-
term relief, not long-term integration or protection . The Rohingya crisis exemplifies immediate
international aid, while critical, hasn't established lasting legal protections or solutions.
Bangladesh's ad hoc refugee policies are complicated by the absence of a strong legislative
framework integrating international human rights norms. While the Constitution offers general
rights, it lacks specific protection for refugees. A lack of clear legal framework causes ambiguities
in enforcing refugee rights and limits policymakers' abilities to create sustainable strategies for
refugee management. Without a solid legal basis, protection efforts remain fragmented and
insufficient for long-term displacement. Protection gaps arise from various factors, including
states' unwillingness to ensure refugee rights. Integrating humanitarian principles with legal norms
is crucial for refugee protection. Ayesha Rahman argues Bangladesh needs a comprehensive legal
framework ensuring both immediate aid and long-term rights for refugees. Revising national laws
to align with international standards would improve the state's ability to provide immediate relief
and long-term solutions.

4.3 ROLE OF LAW ENFORCEMENT AND GOVERNMENT AGENCIES

In Bangladesh, law enforcement and government agencies manage border security, internal
security, and humanitarian aid for refugees. Without a national refugee law, their policies often
stem from immediate needs instead of a structured legal framework. Bangladesh's law
enforcement agencies, responsible for national security, manage borders and refugee influxes, like
the Rohingya, by preventing unauthorized entry and processing refugees according to domestic
policies and international human rights norms. A lack of refugee management training and legal
guidelines can lead to practices that, while aiming to secure national interests, may unintentionally
compromise refugee protection and dignity . Government agencies, such as ministries for home
affairs, immigration, and foreign affairs, are crucial in coordinating refugee crisis responses by
collaborating with international organizations and NGOs to provide essential services like shelter,
healthcare, and legal aid. International cooperation is essential for mitigating refugee
vulnerabilities and meeting immediate humanitarian needs during mass displacement. However,
critics argue that relying on ad hoc measures and lacking a coherent legal framework leads to
fragmented responses, hindering long-term integration and protection. Scholars emphasize that
reforming law enforcement and government operational protocols with a dedicated refugee
protection policy is essential. Ayesha Rahman suggests institutional reform, like specialized
training and clearer inter-agency guidelines, to improve refugee protection in Bangladesh. Michael
Smith contends that integrating a rights-based approach into agencies' operational mandates
would protect refugees and strengthen national security by fostering stability and social cohesion
Bangladesh's refugee protection faces major challenges due to an inadequate framework.

4.4 GAPS AND CHALLENGES IN THE CURRENT FRAMEWORK FOR THE PROTECTION OF
REFUGEES IN BANGLADESH

The protection of refugees in Bangladesh, particularly the Rohingya population, is marked by

significant gaps and challenges within the national legal and policy frameworks. This analysis
delves into various aspects of the existing framework, including constitutional provisions, the
Foreigners Act 1946, the Legal Aid Act 2000, the Penal Code 1860, access to civil and criminal
courts, ad hoc and humanitarian policies, and the roles of law enforcement and government
agencies.

Legal Recognition and Status of Refugees : One of the most pressing gaps in the current framework
is the lack of legal recognition for refugees. Bangladesh has not enacted specific national refugee
legislation, resulting in Rohingya refugees being classified as "undocumented migrants" rather than
recognized refugees . This classification denies them essential rights typically given to asylum
seekers. However, Bangladesh's constitution (Articles 31, 32, 33) offers some protections to all
within its borders, including safeguards against arbitrary detention and deprivation of personal
liberty . Refugee rights are often poorly enforced due to their precarious legal status. For example,
although Article 31 of the Constitution guarantees legal protection for everyone in Bangladesh,
Rohingya refugees still face arbitrary detention under the Foreigners Act 1946 . The Foreigners Act
grants authority’s broad discretion to detain and deport non-citizens without due process . Legal
ambiguity in their status makes Rohingya refugees vulnerable to arbitrary detention and abuse due
to misinterpretations by law enforcement. The lack of formal recognition leads to insecurity in
accessing basic rights like education, healthcare, and employment. .

Rights and Protections under Existing Laws : While Bangladesh's constitution offers some
protections, they're often insufficient for refugees' specific needs. The Legal Aid Act 2000 aims to
help those who can't afford legal assistance, but many refugees are unaware of their rights or how
to access these services due to language barriers and bureaucratic hurdles. Rohingya refugees
face severely limited access to civil and criminal courts due to bureaucratic hurdles, movement
restrictions, and lack of documentation. Reliance on informal justice mechanisms within camps,
often handled by Camps-in-Charge (CiCs), further complicates their ability to seek justice. . This
informal approach can lead to arbitrary decision-making that fails to adequately protect refugees'
rights. Despite Penal Code provisions against trafficking (s.370-s.374), Rohingya refugees remain
vulnerable to trafficking networks both inside and outside of camps. . The lack of enforcement
worsens this vulnerability; many cases go unreported due to fear of retaliation.

Socio-Economic Challenges : Rohingya refugees in Bangladesh face dire socio-economic

conditions, with overcrowded camps suffering from inadequate infrastructure and shortages of
essential services like food, water, sanitation, and healthcare . The World Bank has estimated that
substantial funding is needed to address these pressing needs; however, actual funding remains
insufficient . Refugees often live in conditions that increase their vulnerability to disease and
natural disasters. Rohingya children face significant barriers to education, including language
differences and a lack of trained teachers, hindering effective learning opportunities. . The absence
of a formal education framework further limits prospects for integration into Bangladeshi society.

Political Challenge

Politically, the Bangladeshi government's approach has largely focused on treating the Rohingya
influx as a temporary crisis with an emphasis on repatriation rather than long-term integration or
support . The focus on temporary solutions for the Rohingya crisis limits investment in
infrastructure and services, while growing anti-Rohingya sentiment further hinders efforts to
improve their protection. .

The Rohingya refugee crisis in Cox's Bazar strains resources, causing tensions between refugees
and host communities. Overcrowding and limited access to basic services exacerbate the risks of
disease and malnutrition. Aid delivery faces challenges due to funding shortages and coordination
issues, which hinder effective and timely responses5. Mental health needs are also escalating
within the camps .

CONCLUSION

While there are frameworks aimed at addressing refugee issues in Bangladesh, significant gaps
remain that affect the safety and well-being of Rohingya refugees. The lack of legal recognition
under national law leaves them vulnerable while existing laws often do not provide sufficient
protection or avenues for redress. Socio-economic challenges further complicate their situation as
inadequate infrastructure undermines their quality of life. Political dynamics also play a crucial role
in shaping responses to refugee needs; without a comprehensive national framework that
addresses these multifaceted challenges, Rohingya refugees will continue to face significant
obstacles in their quest for safety and dignity.