The government of Bangladesh recently denied unregistered Rohingya people refugee status within Bangladesh’s borders. More distressingly, the government has carried on a policy of detainment and coercively repatriation of Rohingya individuals. This is a wholesale violation of their human rights, according to the doctrinal values enshrined in the Constitution of the People’s Republic of Bangladesh.
A Muslim people from Myanmar, the Rohingya have been persecuted by the ruling junta since the 1970’s. Seeking relief and respite, over the years hundreds of thousands of Rohinyga have crossed into Bangladeshi territory. Now an estimated 400,000 live mainly in refugee camps in Cox’s Bazaar in coastal Southern Bangladesh. The most recent cresting wave of mass migration occurred in 1991 when over 200,000 Rohingya refuge in Bangladesh. With the aid of the office of the United Nations High Commissioner for Refugees (UNHCR), successive Bangladeshi governments repatriated the Rohingya back to Myanmar (then, Burma). Now, recent government moves suggest that Bangladeshi armed forces are coercively repatriating men and women–in the process, breaking up families and destroying a way of civil life–to face certain persecution and prosecution by a government that would rather kill them than throw them in damp, gray jails.
The sitting Awami League government of Bangladesh wants to claim that registration of these people as refugees is akin to inviting unwanted boarding guests into one’s house that one cannot then feed and clothe. Further, the Rohingya are a criminal bunch–so the claim goes– who are skimming off the government’s surplus by taking away jobs from citizens, and are engaging in acts that serve to corrupt the local Bangladeshis. These acts therefore mandate that the government detain and expel Rohingya whenever such individuals are found committing socially harmful, perhaps salacious, acts.
This argument might be appealing to some. It might be feasibly acceptable on pragmatic grounds to others were it not demonstrably the case that the government is seizing and interning Rohingya who are seeking employment, who are off to their day’s work, in a play to harass them, with the goal to dissuade them from staying on within Bangladesh’s borders. This move, to employ another analogy, is akin to rending the sole fabric of social cohesion that is holding together the Rohingya people. These people are in Bangladeshi soil after fleeing attacks from a government bent on committing genocide to remove these people from the state of Arakan in Northern Myanmar. Therefore, I find it easy to think that refusing to register these people as sanctioned refugees directly bears on their chances of having to return across the border and face the campaign of genocide playing out in real time in Myanmar.
The question then is: how can the government defend its actions when its own constitution commits it to maintaining the dignity and worth of each man, woman and child, Bangladeshi and Rohinyga? I want to say that it can defend its actions only by outrightly rejecting its own Constitutional commitments.
Allow me to define some concepts first. Consider two concepts of human rights. First, suppose there exists a universalistic concept of human rights that all who believe normative principles stand behind any vehicle of politics must accept. This implies, immediately, that a concept so required to be universalistic must necessarily be thin because it must be neutral to specific normative claims that are not themselves universalistic. Hence, the claims on state obligations that a conception of human rights that is accepted in both Saudi Arabia and Canada would have to deal with the fact that the state of Saudi Arabia allows and enforces certain rules that are thought rightly in Canada as being outside the bounds of state enforcement. This then allows the state to argue that its own conception of how such obligations are met is consistent with a broader, universalistic conception of human rights. The rulers of Saudi Arabia might say: “Why would we allow homosexual marriage rights within the public sphere? Our religious beliefs disallow that kind of behavior though we believe that individuals must be treated with respect and dignity.” What falls apart, then, is the feasibility of shared belief on what entails respect and dignity for the person. By claiming that there are certain acts that are legitimately committed by the state– and abhorred by NGO’s and international organizations established in developed liberal states– is to claim that though human rights are universalistic and valuable, certain acts are set apart from other acts that serve to maintain human dignity and respect. It is this universalistic but thin conception of human rights that the government of Bangladesh claims to uphold.
Suppose then there exists another conception of human rights. This one, call it the conception of liberal human rights, requires that governments refrain from coercing individuals in specific ways that are consistent with the rights enjoyed by individuals in liberal democratic states. In this way, we constrain human rights to specific, non-parochial, political values that we assume obtain in all liberal democracies or, at least, liberal states. These rights therefore are not neutral nor are they non-partisan. To be a liberal state requires that any such state establish as a foundational principle, liberal human rights. It is my claim that the human rights the Constitution of Bangladesh upholds are exactly liberal human rights. To commit to the constitution therefore is to commit to a conception of liberal human rights. If the government abrogates its circumscribed responsibilities to engage in the furtherance of those rights for persons and for a set of people, the government then abrogates its responsibility to the constitution.
Let us start from so-called first principles. The Constitution of the People’s Republic of Bangladesh holds that human rights are part of a set of fundamental principles of state policy. Within that proposition, the Constitution holds that “the Republic shall be a democracy in which fundamental human rights and freedoms and respect for the dignity and worth of the human person shall be guaranteed.” Note, the claim here is not that only citizens shall have their dignity respected; rather the human person shall be guaranteed dignity and worth consistent with fundamental human rights and freedoms. Certainly, the Rohingya fall within the remit of that Constitutional proposition.
Individuals who are non-citizens who nevertheless happen to rest within Bangladesh’s borders are guaranteed the protection of the law. “No person shall be deprived of life or personal liberty save in accordance with law.” Individuals are guaranteed safeguards in arrest and detention. The two relevant clauses are as follows: 1) “No person who is arrested shall be detained in custody without being informed, as soon as may be of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.” 2) “Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the magistrate, and no such person shall be detained in custody beyond the said period without the authority of a magistrate.” These claims sound suspiciously like post-enlightenment liberal rights that serve to protect the individual from arbitrary state detention.
Nevertheless, as a a partisan of the recent actions might argue those two clauses do not apply in just the cases where the individual in question is an enemy alien or is arrested under preventive detention. This would require then, that the government thinks every Rohingya either an enemy alien, thereby forcing an intervention in the internal affairs of Myanmar whenever it forces one such man, woman or child, across the border. Otherwise, the individual is considered a target of preventive detention. But, what one wants to cry out, is a 35 year old father of four being prevented from doing that might be so harmful to social order in Cox’s Bazaar?
Moreover the Constitution holds that any law inconsistent with fundamental principles are void. Again, the fundamental principle of democracy and human rights applies to persons, though many policies of the states attach to citizens. It is the claims of the avowed fundamental principles that merit attention and the ethical disapprobation from world leaders.
There are two argument that could be marshaled to defend the government’s actions . In the first instance the claim could be made that the government is only required to provide for its own citizens. Thus, those who propose this argument might point to the Constitution: “it shall be a fundamental responsibility of the State to attain, through planned economic growth, a constant increase of productive forces and a steady improvement in the material and cultural standard of living of the people, with a view to securing to its citizens the provision of the basic necessities of life…the right to work…the right to reasonable rest…the right to social security.”
Furthermore, a partisan might argue, the government’s actions are designed to defend non-interference in another country’s internal affairs. Thus, the partisan might point to the following Constitutional provision: “the State shall base its international relations on the principles of respect for national sovereignty and equality, non-interference in the internal affairs of other countries, peaceful settlement of international disputes, and respect for international law and the principles enunciated in the United Nations Charter.”
There are two problems that attach to both arguments. The most important and overwhelming one is that the partisan must demonstrate that human rights–here, as I’ve argued, liberal human rights– are subservient to the democratic politics entailed in a state’s provision of goods and rights to its own citizens and to the state’s commission of its foreign policy. In this case, he must point to a conception of human rights that does not take seriously any individual human right to democratic decision-making, a manifestly liberal and thoroughly political conception of human rights and democracy. The partisan might then seek that toothless universalistic definition of human rights on which all are required to agree, but where the agreement is thin, because it is not conceivable that that government of Iran and the government and the people of Canada might agree on the same concept on human rights. This implies that the partisan who defends the governments actions is forced to reject the second argument about non-intervention in a state’s internal affairs he himself marshals because it–a government’s foreign policy–requires that the actions of the state accord to specific conditions on the ground. Universalistic human rights that are understood as thin concepts cannot stand the force of political and social specificity.
Secondly both arguments fail internally because in the first instance even a thin conception of human rights would be defended on grounds of justice–a proposition to which the constitution commits the government. However, more than that, human rights are held by the constitution as values co-existing along with democracy and nationalism (though the manner of that co-existence is surely ripe for debate). It is a serious requirement on the government therefore when the obligation attaching to claims of human rights maintenance are set next to the requirements of democracy–itself a thick and liberal description. Human rights in Bangladesh, according to the constitution must then be a liberal conception of human rights if it stands on the same footing as liberal democracy. Therefore, whenever liberal human rights are subjugated to the claims of democracy–when the government claims it is securing the economic futures of local Bangladeshis in the area by coercively repatriating Rohingya–it is doing so by indexing those values to ad hoc priorities that are found nowhere in the constitution.
One might argue in an excited fit that the whole challenge to the government relies on normative claims that do not attach easily to public policy. After all, a partisan might argue, these principles are not judicially enforceable. When he claims as much, he is really quoting the constitution which holds that the “principles…shall be fundamental to the governance of Bangladesh, shall be applied by the State in the making of laws, shall be a guide to the interpretation of the Constitution and of the other laws of Bangladesh, and shall form the basis of the work of the State and of its citizens, but shall not be judicially enforceable.” Hence, everything having to do with the Constitution turns on these principles but they are not, in fact, enforceable.
Where then do we stand? Bangladesh is not a signatory to the 1951 international refugee convention. But the moral claims that attach to human rights claims does not arise in Bangladesh from international treaties, though the obligations states burden themselves with are constituted by those treaties. The government of Bangladesh is correct to assume that it does not need to maintain the human dignity and worth of a Rohingya individual through treaty international treaties. However, it does need to maintain the human dignity of the Rohinyga through its own constitutional commitments. That these commitments are not enforceable by courts is an issue that pertains to the judiciary; public policy is still constrained by the very liberal principles that the government is obligated to uphold. If, then the government fails to uphold these doctrinal values, it will have showed itself to be an illiberal state, though it might still strive to call itself a democracy.
Finally, consider that the Constitution of Bangladesh instructs the government that “Absolute trust and faith in the Almighty Allah shall be the basis of all actions.” By coercively repatriating the Rohingya is the government claiming that attendance to the human rights of the Rohingya is a move against faith in the Almighty Allah?
