BANGLADESH/MYANMAR: Visiting EU delegation should study challenges to the rule of law to succeed in its peace building and sustainable development dialogues

An Open Letter from the Asian Human Rights Commission to the Vice-President of the European Commission relating to the EU delegation’s visit to Myanmar and Bangladesh

Honourable Ms. Federica Mogherini
Vice-President / High Representative
European Commission
Rue de la Loi / Wetstraat 200
1049 Brussels
Tel: + 32 2 29 63580

Dear Honourable Ms. Federica Mogherini

The Asian Human Rights Commission (AHRC) welcomes the upcoming visit by the EU delegation led by your high offices to Bangladesh and Myanmar. The AHRC is aware that your high offices would be leading the EU delegation visiting Bangladesh on 19 November, and the EU delegation at the 13th Asia-Europe Meeting of Foreign Ministers in Nay Pyi Taw, Myanmar. We appreciate that the theme of this year’s Asia-Europe Meeting is “Strengthening Partnership for Peace and Sustainable Development”.

The AHRC appreciates the importance the EU community places in strengthening partnerships with the Asian states, with a specific emphasis on peace and sustainable development. However, the AHRC is concerned how peace and sustainable development could be achieved in the clear absence of a framework of rule of law, established through independent and credible institutions, particularly in states like Bangladesh and Myanmar.

In Europe, and in states where peace and sustainable development has today become a norm, the establishment of this normative framework would not have been possible without justice institution reforms that has happened over decades, if not a century, through people’s participation. Both in Myanmar and in Bangladesh such an environment does not exist today.

The AHRC is of the opinion, that at the moment, Myanmar does not have a functioning justice delivery framework. The repression Myanmar has faced during the past six decades has removed even the remotest traces of independent institutions in the country. Judges, prosecutors and lawyers do not have the memory or the experience on how independent justice delivery institutions function. Even the institutional memory of independence, fair trial and rule of law does not exist in Myanmar.

To understand the state of the justice delivery in Myanmar, one need not look far and wide. Even today, the working conditions of judges and prosecutors are such that they are not provided with decent salaries or working environments. Crime investigation is dominated by military style practices, where torture and corruption plays the most important role. So much so, those litigants who could afford to pay bribes, finds it meaningful to bribe a judge and a prosecutor than to pay for a lawyer. Besides, where the quality of the judiciary and the prosecution is appalling, there is hardly anything a good lawyer could achieve in a court.

The situation in Bangladesh is also no different, albeit the country maintaining a mere façade of justice delivery through a legal framework. However, the manner in which the former Chief Justice of Bangladesh was removed from his office highlights the executive intervention in judicial functions. Independent and efficient justice delivery remains merely in statutes and in paper in Bangladesh.

Justice is not a felt experience in daily life in Bangladesh. This is the reason why countless Bangladeshis resort to means to leave their country, attempting to reach shores as distant as in Europe, even at the risk of failure that could cost them their lives. Viewed from this perspective Rohingya in Bangladesh and illegal Bangladeshi emigrants in Europe are no different. Without addressing the root causes to their concerns, which is anchored on failed justice delivery, in Bangladesh and Myanmar, the problem cannot be effectively addressed.

Lawyers in Bangladesh who are willing to represent clients who wish to challenge the absolute authority of the Prime Minister’s office and that of other state agencies like the Rapid Action Battalion or the Bangladeshi Police, have to do so at the risk of their life. Freedom of expression, opinion, and assembly is acutely restricted in Bangladesh. The AHRC could site at least a few dozen cases from the past 11 months where persons who are considered by the incumbent government as political opponents having stifled with fabricated criminal cases, arbitrarily arrested, and are detained incommunicado for long periods.

Many have been killed or have disappeared in Bangladesh. The practice of custodial torture and brute forms of extrajudicial punishments like shooting at a person’s knee is rampant in Bangladesh. Independent media and other civil society actors have their voices and professional space to work smothered acutely by the government.

The AHRC is concerned about the commitment made by the EU to provide financial assistance to Myanmar, for it to address the Rohingya crisis. This is because of the specific details that have been documented so far concerning the root causes for the crisis, and the undeniable role the state agencies in Myanmar have played in fuelling the crisis to the proportion that it has come to today.

Any engagement on the Rohingya crisis – about those who are struggling in Myanmar and those who have fled to Bangladesh or other states – should first begin with the perspective that these people are not merely “Rohingya refugees” but are Myanmarese to begin with. There is no rationale or logic for the Government of Myanmar to deny citizenship rights to its people who have lived in Myanmar for the past several generations. This discrimination, built into the national laws of Myanmar must be removed.

Without addressing this vital and open issue, providing financial assistance to Bangladesh and Myanmar to “address” the “Rohingya” crisis could be interpreted as mere handwashing of the international responsibility, without adequately understanding a deeply hurting problem.

The ongoing crisis in Myanmar has spilled over national borders. Countless lives have been lost of which no one has an exact estimation. There are no guarantees that deaths would not recur, not only in Myanmar but also in Bangladesh. Those who have survived, of which an alarming number are orphans in tender age, have to live to tell their harrowing stories. They cannot expect any reasonable remedies either in Myanmar or Bangladesh unless prevailing circumstances change substantially.

Extraordinary circumstances call for extraordinary actions. The AHRC thereforecalls upon the visiting EU delegation led by your good offices to engage at length with the civil society in Myanmar and Bangladesh. We request your delegation to spare no resources or means to find ways to discuss with the civil society in Bangladesh, engaged not only with the Myanmarese refugee crisis in Bangladesh, but also to learn about how the incumbent government in Bangladesh has stifled free and independent justice institutions and the civil society in the country. We also request your delegation to keep its doors open for engagement with New Delhi, given India’s strategic partnership with both Myanmar and Bangladesh.

Rule of law and human rights are the two cornerstones upon which peace, securityand sustainable development are to be built. Acknowledging this requires a deeper, thoroughgoing and long-term engagement with agents of change that could provoke a sustainable domestic debate on the failures of justice frameworks in both nations.

The AHRC wishes success to your delegation, and its mission in Asia.

Yours sincerely,

Bijo Francis
Executive Director
Asian Human Rights Commission, Hong Kong