Rights of detained foreigners

For cases of those who have completed sentences, there are mainly two reasons for not getting released: the foreign missions or governments concerned are not interested in their release and repatriation, and the person concerned is not willing to return back to his or her country of origin, fearing oppression or persecution from the state authorities or others. The latter one is applicable in most of the cases of Myanmar nationals here. They are mainly in jails in Cox's Bazar, Bandarban, Chittagang and Comilla.

According to officials and other relevant sources, many of them have been in jail for more than two years. There are even instances of some "released" prisoners in the lock-up for over five years.

There are nearly 200 convicted foreign nationals and 400 others waiting for trial in jails, as sources indicated. The foreign nationals are from Myanmar, India, Sri Lanka, Nepal, South Africa, Tanzania, Saudi Arabia etc.

It is difficult for journalists or human rights activists to gather the exact figure. However, according to reliable sources the country-wise break down is as follows: Myanmar- about 600, India- 200, Thailand- 70, and the rest are from different countries.

Only in Cox's Bazar jail, there are reportedly about 500 Myanmar nationals. Out of them about 200 are released prisoners, while 350 are under-trial prisoners (UTP) and 50 are convicted ones. Most of the Myanmar nationals are ethnic Rohingyas from the northern Rakhine state who came here over the years for violation of their human rights and fearing persecution. They are accused in different cases which include: illegal entry into the country, robbery, smuggling of arms and drugs, and other crimes.

There are reportedly 130 refugees, mostly nationals of Myanmar in Cox's Bazar and Bandarban jails.

The UN Refugee Agency, UNHCR, has reportedly been arranging legal assistance especially for the refugees. However, this process is now stuck as the authorities have not been allowing the relevant staff from UNHCR to meet detained refugees or asylum seekers in the jail. This practice is contradictory to the norms of international law.

According to the provision of the international human rights law, two agencies: International Committee of Red Cross and United Nations High Commissioner for Refugees (UNHCR) are mandated to visit detainees of foreign nationalities and asylum seekers/refugees in jails. The staff concerned are supposed to meet them to take note of their desire and necessities. The information would remain confidential and would be used for the interest of persons concerned only (that does not include saving anyone involved in criminal activities; the aim is to ensure proper legal representation for defence of the individuals and to let the law to take its own course). However, as mentioned, the scenario is not favourable in Bangladesh. It is alleged that UNHCR is hardly allowed to visit intending asylum seekers and refugees in jails.

According to concerned officials they are doing this for security reason. However, for the sake of security or any other reason rights of the detainees should not be compromised. The authorities should be proactive in this regard to find out solutions in consultation with UNHCR or other human rights organisations. Previously, UNHCR staff could meet refugees in Cox's Bazar jail whenever necessary.

Bangladesh is not a party to the 1951 Convention Relating to the Status of the Refugees and its 1067 Protocols. Nor it does have any legislation on refugees despite hosting thousands of refugees for years.

However, Bangladesh is a party to major international human rights instruments, which oblige the State to follow some norms in terms of dealing with detainees, especially with foreign nationals. Article 11(1) of the Universal Declaration of Human Rights (UDHR) to which Bangladesh is a party provides that "Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence."

So, there is an obligation from the government side. It is expected that the authorities concerned would coordinate with UNHCR or other human rights organisations in this regard.