PUBLIC INTEREST LITIGATION (PIL)

Refugee and Migratory Movements Research Unit (RMMRU) represented by its Executive Director Professor Dr. Chowdhury Rafiqul Abrar, Sattar Bahaban (4th floor),179, Shahid Syed Nazrul Islam Sarani, Bijoynagar, Dhaka-1000.

Government of Bangladesh represented by the Secretary, Ministry of Home Affairs, Bangladesh Secretariat, Police Station Ramna, Dhaka-1000 and others.

An ejahar was lodged with Lohagara Police station, District- Chittagong by one A. Mannan, a member of community police against the detenue Md. Rafique and another person, namely, Md. Hassan on the allegations, inter alia, that the informant A. Mannan along with his accompanying force had been patrolling in Choromba Jamadar Para area under Lohagara Police Station  on 30.05.2007 and at one stage, the informant party found the detenue Md. Rafique and his cohort Md. Hassan roaming about aimlessly on the eastern side of the house of one A. Rahman. The informant-party challenged them and tracked them down and interrogated them. On interrogation, the detenue and his cohort Hasan told the informant party that they are the citizens of Mayanmar and illegally entered into Bangladesh. The detenue and Hassan failed to provide any valid travel documents to the informant-party. After lodgment of  Lohagara Police Station Case No. 26(5)07 dated 30.05.2007 against the detenu and his cohort, the police investigated the  case and duly submitted charge-sheet against them. However, on 23.05.2011, the learned trial Magistrate framed charge against the detenue Md. Rafique  and his cohort Md. Hassan and the detenu pleaded guilty to the charge framed against him. On the  basis of the plea of guilty made by the detenu, the learned Senior Judicial Magistrate, 1st court, Chittagong convicted him under section 14 of the Foreigners Act, 1946 and sentenced him to suffer rigorous imprisonment for  5 (five) years and to pay a fine of Tk. 100/-, in default, to suffer simple imprisonment for a further period of one day. The detenu Md. Rafique was arrested on 29.05.2007 and he was awarded the sentence of imprisonment for 5 (five) years for contravention of the relevant provisions of the Foreigners Act under section 14 on 23.05.2011. According to the order dated 23.05.2011, the Senior Judicial Magistrate, 1st Court, Chittagong ordered to deduct the period the detenue had been in jail from the term of his imprisonment as per section 35A of CrPC. After the conviction and sentence of the detenu by the order dated 23.05.2011, the detenu, according direction of the convicting Court and the mandate of Section 35 A of the Code of Criminal Procedure, had to suffer imprisonment for about one year more, that is, he was to be released from jail on any day around 30.05.2012; but still he is languishing in jail. Due to the peculiar legal limbo of his being a citizen of Myanmar, the Government of Mayanmar can not accept and recognize him as a citizen of Mayanmar. So he is not in a position to return to Mayanmar.

On the other hand, as the detenu is not a citizen of Bangladesh, he can not stay in Bangladesh sine die. He being an undocumented person will be left high and dry in Bangladesh on being released from jail  after expiry of his jail term.

The Petitioner (RMMRU) filed the writ petition being aggrieved by the illegal detention of the detenue Md. Rafique who has been languishing in the Chittagong Central Jail for more than 4 (four) years after the expiry of the term of his imprisonment.

They argued that as per Article 31 of the Constitution of  Bangladesh, the liberty of any person, whether a citizen or a non-citizen, can not be taken away without the authority of law. But the detenu is being held in Chittagong Central Jail without any lawful authority. If he is released from jail, he may be accommodated in any refugee camp run by the Ministry of Disaster Management and Relief in collaboration with UNHCR in Cox’s Bazar.

The bench of the Hon’ble High Court Division made the Rule absolute and deaclared that the detenue Md. Rafique, son of late Chobi Rahman of village Hainda Para, Police Station Buchidong, District-Akiab, Myanmar now detained in the Chittagong Central Jail, Chittagong after expiry of his term of  imprisonment, is being held without lawful authority and his detention is of no legal effect. Consequently the court directed the respondents concerned to set the detenue at liberty immediately and hand him over to the petitioner.

The petitioner will, however take necessary steps in co-operation with UNHCR for the accommodation of the detenue in any refugee camp in Cox’s Bazar run by the Ministry of Disaster Management and Relief in collaboration with UNHCR.

Mr. Justice Moyeenul Islam Chowdhury
Mr. Justice J. B. M. Hassan