Rohingya crisis: Towards access to justice
By Barrister Quazi Maruful Alam
The writer is an advocate, Supreme Court of Bangladesh
The massive exodus of Rohingya, world’s most persecuted stateless ethnic minority, has turned into a fastest-growing refugee crisis in the history of human civilization. Almost 700,000 people crossed the border within five months from 25 August 2017.
Combined with those taking shelter in Bangladesh before August 2017, the total number of displaced Rohingyas now stands at nearly one million. This huge numbers of refugees inevitably gives birth to many disputes both criminal and civil in nature. Eventually one of the main challenges for the Rohingyas is to get access to formal legal system of Bangladesh.
Access to the formal state legal system in Bangladesh by the Rohingyas is impeded not so much by formal barriers, but by multiple practical obstacles and difficulties, as well as by attitudes. Indeed, in most instances, these practical barriers and other deterrents were found to have an important cumulative effect resulting in a lack of both trust and interest in pursuing cases within the formal Bangladesh’s legal system. The following reasons can be identified which work as main barriers to get access to the formal legal system of the host community:
Lack of state laws and enforcement mechanism governing the rights of the Rohingyas, ii. Ambiguities in existing state laws as to whether Rohingyas can get access to the formal judicial system, iii. Lack of support and political willingness on the part of the host government to facilitate access to the state justice system for Rohingya populations, iv.
Explicit or implicit preference by relevant authorities to have disputes between Rohingyas amicably resolved within the refugee community v. Lack of financial means, vi. Lack of knowledge regarding the rights of Rohingyas, vii. Physical distance/restrictions on the freedom of movement viii. Lack of adequate legal representation ix. Lack of knowledge or familiarity with formal legal systems, x. Fear of reprisals and community pressure, xi. Uncertainty of outcome and delays, xii. The language barrier xiii. Fear of discrimination and bias.
There appears to be a clear general preference on the part of Rohingyas to have recourse to the alternative dispute resolution rather than the host country judicial system. However, at present the Rohingya camps lack a coordinated structure of alternative dispute resolution system. Different camps operate under different Camp in Charge (CiC) and consequently end up in hierarchy of structure which varies from camp to camp. On the basis of the data collected from field workers working in different NGO/INGO, it transpires that in most of the camps the following hierarchy of dispute resolution is followed:
Unfortunately, there is a general lack of awareness among the Rohingya population about their rights and options when it comes to access to justice. Some Rohingyas also expressed a general lack of trust towards humanitarian organizations and thus not wanting to approach them with very sensitive issues. It is also found that launching formal complaints is a practice that is negatively viewed among the community, and community members resent and exclude people in the community who seek formal venues for justice, such as reporting to the CIC, police or army.
Another factor that seems to be discouraging Rohingyas from seeking formal justice avenues in Bangladesh relates to the attitude of the police. According to Rohingyas, the police does not welcome reports and require bribes to accept the report including taking any action. People therefore express mistrust in the police system and prefer mediation within the community and judgment based on compromise rather than punishment.
The only exceptions are cases of rape and murder. Informal justice systems are common in all the camps, usually led by the Justice Committee, Majhis, elderly committees or Imams, and this informal form of justice is the preferred option to avoid social stigmatization.
The communities also expressed that justice is usually achieved with the intervention of elderly people, mosque committee, Majhi, Head Majhi, Army and the CIC. In the Rohingya Camps Majhis are considered as the most accessible venue for justice and are often perceived as the most powerful authority in the community, aside from the police and military. In most conflicts are being directly resolved by the Majhis or Head Majhis and in many cases the judicial process is not considered.
In some camps Imam committees and Majhis work together for conflict resolution where both parties present their side of the situation and the Imam and Majhi committees warn or punish the person established as the wrongdoer and advise the victim on how not to put him or herself in that situation again. When conflicts escalate, they are sometimes brought forward to the CIC. However, there are reports confirming that Majhis are protecting perpetrators in exchange for bribes, and legal aid organizations and local authorities thus not being able to move forward with the cases.
The Judiciary of Coxsbazar is already overburdened with Civil and Criminal cases and as such very much reluctant to respond to additional cases brought by Rohingyas. Besides, other barriers in accessing the state legal system including lack of political willingness, physical distance, language barriers, lack of resources, and legal aid/ counseling services are also hindering access to justice of the Refugee Community. The Government should take initiative to recruit more judges for the judiciary of Coxsbazar or establish a separate court to deal with the cases of Rohingyas in order to tackle this unprecedented situation.