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India: The deportation of Rohingya refugee in the light of National Security

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In the light of India’s plan to deport illegal Rohingya refugee, Author discusses and critically analyses India’s International legal obligation in the background of India’s constitutional and statutory provisions keeping in mind the State’s national security concern. Parallel he also suggests an idea of comprehensive legislation on refugee in India

 A kind of political intellectual hustle and bustle has been started in the world over India’s plan to deport all Rohingya immigrants who are living in different parts of India illegally or without having any valid refugee card. On August 9, 2017, the Indian minister of state for home affairs, Kiren Rijiju, told the parliament that “the government has issued detailed instructions for deportation of illegal foreign nationals including Rohingyas,” noting that there were around “40,000 Rohingyas living illegally in the country.”  Reacting to this, South Asia director Meenakshi Ganguly said that “India has a long record of helping vulnerable populations fleeing from neighboring countries, including Sri Lankans, Afghans, and Tibetans,” and thereby Indian authorities should abide by India’s international legal obligations and not forcibly return any Rohingya to Burma (Myanmar) without first fairly evaluating their claims as refugees.”  The National Human Rights Commission (NHRC) of India also issued the notice to Central Government after taking suo motu cognizance and sought a detailed report within four weeks on government’s plan to deport about 40,000 illegal Rohingya immigrants.  NHRC also contended that Indian judiciary has given wide protection to the refugees, even unregistered, under the broad ambit of Article 21 of the Constitution of India. United Nations Secretary General Antonio Guterres has also shown his concern about India’s plans to deport Rohingya refugees from Myanmar underlining that refugees should not be returned to countries where they fear persecution once they are registered.

India’s Legal obligation under International law

It is true that India is not a party to 1951 Convention on Refugees and also the 1967 Protocol. But this does not preclude and keep India out of International and domestic legal obligation. As far as International legal obligation is concerned, notwithstanding India is not a signatory to the 1951 Convention principle of customary international law does apply to India in so far as it is consistent with existing municipal law of the Country or if there is a void in the municipal law.  Principle of Non-refoulement has become a well-recognized part of customary international law, thus applies to India also. Principle of Non-refoulement says that “No State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”.  Principle of Non-refoulement is central to refugee protection that prohibits return of an individual to a country in which he or she may be persecuted. Academic consensus on this point has been of the view that the principle of non-refoulement as articulated in Article 33 is broad in scope, offering expansive protection to refugees and must be construed expansively and without limitation, and as such includes no exceptions for other treaty obligations such as extradition.  The principle of non-refoulement applies to a wide spectrum of people, including those seeking asylum as well as those already granted asylum, regardless of whether the individual entered the host state legally.  Furthermore, non-refoulement is commonly regarded as a right which extends through time, applying to the individual as soon as he arrives and throughout his stay in the country of refuge.  The broad scope and ambit of prohibition of refoulement has been taken to prohibit any act of removal (including rejection, expulsion, deportation, and return) that would place the individual at risk, regardless of the formal description of the act given by the removing state.

On the other hand, the principle of Non-refoulement is also not an absolute principle in the sense that it has two exceptions which have the potential to weaken the principle of non-refoulement and leave refugees vulnerable to violations of underlying human rights. These two exceptions which the receiving state may exercise either “to protect the community (public order)” or “defend national security”.  But it is also true that there is a lack of historical consensus toward exceptions to Non-refoulement. Therefore, if the principle of Non-refoulement does contradict with any provision of the existing domestic legal framework in India, to that extent it ceases to be effective. For instance, when a refugee entered into India without a valid passport or travel documents, he may be arrested by immigration authorities and generally handed over to the police and a FIR is lodged against him under the Passport (Entry into India) Act, 1920 and the Passport Act, 1967.

India’s obligation under Municipal Law

The relevant statutes which deal with refugees in India are the Foreigner’s Act, 1864, the Registration of Foreigner’s Act, 1939, the Foreigner’s Act, 1946, the Fugitive Offenders Act, 1881, the Indian Extradition Act, 1903, the Passport (Entry into India) Act, 1920 and the Passport Act, 1967. Though there is no comprehensive legislation in India which governs and regulate refugee problems, but still Indian judiciary by its creative interpretation of Article 21 of the Constitution which guarantees the right to life and liberty to all persons and not merely to citizens. Refugees may not be citizens but they are certainly persons, and hence they are entitled to the provisions of Article 21. The Indian Supreme Court has interpreted the word ‘life’ in Article 21 to mean not merely an animal life but a dignified life , and hence refugees being persons, are also entitled to the same.  In the same way, rights to equality (Article 14), right to protect in respect of conviction of offences (Article 20). Right to protect against arbitrary arrest (Article 22) and the freedom to practice and propagate their own religion (Article 25) also apply to refugees. It is beyond any doubt that India judiciary has given and protected the number of basic human rights of refugees in India, from right to life, liberty, arbitrary detention, freedom of religion to access to UNHCR office in India where they can get registered with UNHCR. On the other hand, it has also to be noted that SC in Louis De Raedt v. Union of India and Ors,  and S.G. Getter v. The Union of India,  held that Article-21 of the Constitution of India protects the life and personal liberty of all persons including aliens and foreigners happened to be in India. Therefore, refugees as non-citizens cannot be deprived of their rights ‘except according to the procedure established by law’. Therefore, even principle of Non-refoulement and many other Human Rights Principles which are individual centric as referred in UDHR can be circumvented and weakened by way of a legislation in India, and that too India can do even without violating International law as if there is happened to be conflict between municipal law and international law (customary international law) courts must perforce apply national law and give effect to the municipal law. 

Rohingyas: are they threat to State Security

Refugees are no doubt foreign nationals but they are human beings also and before taking any big step, it would well be appropriate and fair for the government to look into every aspect of the situation. It has to be noted that The Rohingyas, who fled to India after violence in the Western Rakhine State of Myanmar, have settled in Jammu, Hyderabad, Haryana, Uttar Pradesh, Delhi-NCR and Rajasthan. Keeping that in mind, The Home Ministry of India has said that infiltration of (Rohingyas) from the Rakhine state of Myanmar into Indian Territory, especially in recent years, besides being a burden on the limited resources of the country, also aggravates security challenges posed to India.  In a communication to all states, the Union home ministry had said the rise of terrorism in last few decades has become a serious concern for most nations as illegal migrants are able to getting recruited by terrorist organizations. Rohingya refugee as a fear for State security has been noted in 2013 when terrorist attack took place in Bodh Gaya—a blast executed to avenge the killings of Rohingya Muslims in Myanmar.  In February, 2017 it has been reported that Rohingyas the minority ethnic community were being abetted by outfits such as Lashkar-e-Taiba  and thereby exploiting radicalization among the Rohingya community, which posed a serious security risk to India. Foreign Minister of Bangladesh AH Mahmood Ali has also shown his concerned about illegal Rohingyas around three to four lakhs staying in Bangladesh and may pose a serious threat to Bangladesh’s national security in future. He went on to say that The Rakhine people have got engaged in various misdeeds, including drug smuggling, arms and human trafficking and manufacturing drug on the border.

Plan ahead for refugee including Rohingyas

Refugee in India have been concerned as a matter of policy rather than law where how to deal with the refugee has also been seen as a part of India’s foreign policy especially in the context of Tibetan refugee. In the light of abovementioned facts and legal background, that till today, the country has evolved a practical balance between human and humanitarian obligations on the one hand and security and national interest on the other. No one leaves home unless home is the mouth of a shark. Keeping that in mind and realizing being a signatory to number of International Human Rights Conventions/Covenants India should legislate a comprehensive law which could uniformly deal with the problems of refugee influx in India and exodus to their original place provided they will not face any king of further persecution thereon and full protection to their life, security and enjoyment will be ensured corresponding to State security will not be compromised.

Abhishek Trivedi is pursuing his LL.M. degree in International Law from Faculty of Legal Studies, South Asian University-an International University established by SAARC Nations, New Delhi. His fields of interest and research in academics are Public international law, Law of International Organization, Human Rights law, Conflict of laws, commercial arbitration and International Environmental Law

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South Asia

A long way of solidarity: a voice for the voiceless Kashmiris

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Friday prayers in Srinagar, Jammu and Kashmir. © John Isaac

Every year on February 5 Pakistan observes Kashmir Solidarity Day. It aims to demonstrate Pakistan’s support and solidarity with the people of Indian-occupied Kashmir, and their continuing liberation struggle, and to honor Kashmiri martyrs who sacrificed their lives fighting for Kashmir’s independence.

Every year, on Kashmir Solidarity Day, Pakistan expresses its political, moral, and diplomatic support for the righteous fight of our Kashmiri brothers and becomes its voice in the international forums.

Kashmir’s discord carries historical as well as contemporary events that hinder its political future.

Historical account of the humiliation of Kashmir’s people

The history of conflict dates back to 1947. In the June 3 plan, the princely state offered a choice between India and Pakistan. Maharaja Hari Singh deceived Pakistan and ceded Kashmir to India through a standstill agreement, which sparked an uprising of Pashtun tribesmen and the Hindu nationalists and RSS to organize a program against Muslims, killing between 20,000 and 100,000 Muslims. On October 27, 1947, Indian troops landed in Kashmir to fight against the Pashtuns and the local armies; this led to the first India-Pakistan war. During the war, India’s prime minister, Jawaharlal Nehru, promised a referendum: “The fate of Jammu and Kashmir is ultimately decided by the people; the pledge we have given is not only to the people of Kashmir but also to the world.” “We will not and cannot back out of it.”

India referred the dispute to the United Nations a little more than two months later. A resolution passed on August 13, 1948, asking both nations to withdraw their forces; once that happened, a referendum was to be held, allowing the people of Kashmir to decide their political future. But the Indian troops were never withdrawn, and the referendum never happened. On January 1, 1949, the ceasefire was agreed upon, and Kashmir became a disputed territory. Over the next 70 years, India and Pakistan fought three wars over Kashmir.

In Indian-administrated Kashmir, India maintains around 600,000 troops in Kashmir, who have committed human rights violations like rape, torture, and enforced disappearances that continue today. The number of people killed in Kashmir is estimated to be between 50,000 and 100,000, which shows the ruthlessness of the so-called largest democracy in the world.

Situation after the abolishment of articles 370 and 35A

On August 5, 2019, the Indian government abrogated Article 370 and Article 35A of the Indian Constitution, which granted Jammu and Kashmir a special status and autonomy. The Indian government enforced a curfew, disrupted communication connections, arrested political leaders, and deployed extra soldiers in the area, generating widespread resentment and demonstrations.

Since the abolition of Articles 370 and 35A, human rights abuses and violations in Kashmir have increased significantly, with claims of widespread mass arrests, torture, and extrajudicial executions by Indian security personnel. The Indian government has also restricted freedom of speech, assembly, and the press, making it impossible for citizens to openly express their thoughts and report on the state of the area.

In addition, the Indian government has been accused of fostering demographic changes in the area through the settlement of Hindu migrants, which has resulted in a fall in the percentage of the Muslim population and degradation of the Kashmiri people’s distinctive cultural and religious identity.

International human rights groups have shown concern about the situation in Kashmir and demanded an independent investigation into the reported human rights breaches and abuses. About 87 civilians have been killed by the Indian forces since the abrogation of Article 370. The international community has also advocated for a peaceful settlement to the issue that takes the Kashmiri people’s rights and interests into consideration.

The situation in Kashmir remains severe, and the continuous violence and human rights violations continue to provide the international community with a formidable task. The region’s political future is still unknown, and a sustainable resolution to the war has not yet been found.

Pakistan’s Advocacy for Kashmir

Pakistan has made several attempts to resolve the ongoing conflict in Kashmir and has sought international backing for its stance on the matter. Pakistan has repeatedly discussed the Kashmir issue at the United Nations and other international forums, stressing the need for a peaceful settlement of the conflict based on the self-determination principle and the right of the Kashmiri people to choose their destiny. Pakistan has also made diplomatic attempts to garner international support for its viewpoint, notably via the Organization of Islamic Cooperation and the Non-Aligned Movement.

Pakistan has also endeavored to provide political, diplomatic, and moral assistance for the Kashmiri resistance movement. India has accused Pakistan of financing terrorism in the area based on information that Pakistan supports separatist organizations in the region. Pakistan has denied these allegations and advocated for a peaceful settlement according to UN Resolution 47 (1948), which calls for a ceasefire, and UN Resolution 51 (1948), which calls for a plebiscite to be held in the region to determine the will of the Kashmiri people.

Despite these attempts, the situation in Kashmir remains unresolved, and a permanent resolution to the conflict has not yet been reached. The issue remains a significant source of conflict between India and Pakistan and a problem for the international community.

Conclusion:

Kashmir’s political future remains uncertain and is the subject of ongoing discussion and negotiation between India and Pakistan, as well as international engagement.

Currently, the territory is split between India and Pakistan, with India administering the greater part and Pakistan the smaller. The Line of Control (LoC), which divides the two managed territories, has often been the scene of tension and bloodshed.

There have been appeals for a peaceful conclusion that takes the rights and interests of the Kashmiri people into consideration. Some have suggested the concept of “self-determination,” in which the people of Kashmir would have the right to choose their destiny through a referendum or a negotiated solution between India and Pakistan.

Kashmir’s political future is unpredictable and vulnerable to the continuous dynamics of the war as well as the shifting political and strategic objectives of the major regional countries. The international community still has a big part to play in finding a solution, and India, Pakistan, and the other countries in the area are likely to have to be involved and support any lasting solution.

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Sri Lankans deserve a clean break from the past

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The decision of former president Maithripala Sirisena to run for president pits two unpopular, establishment candidates against one another. With both Sirisena and Ranil Wickremesinghe involved in past political turmoil and the current economic crisis, Sri Lankans deserve a clean break.

While a presidential election cannot be held until 2024, the Sri Lankan Electoral Commission recently announced local elections for February. With no popular mandate and as the only member of his party, President Wickremesinghe is expected to face an embarrassing defeat in the poll, but it is unlikely to bring down the government.

The announcement that Sirisena would run as president comes at a pivotal time for Sri Lankans.

Wickremesinghe warned this week that the Sri Lankan economy could contract by up to 4% this year, after shrinking 11% last year.

Last year, the island nation descended into turmoil, with an economic collapse leading to its worst crisis in years. Foreign currency shortages, runaway inflation and a recession left the government unable to make debt repayments and left Sri Lankans desperately short of food and fuel.

This led to unprecedented unrest, particularly in the capital Colombo, resulting in the deaths of protesters and police, with hundreds more injured or detained. The protests culminated in the storming and occupation of the presidential palace, forcing Gotabaya Rajapaksa to flee the country, with Wickremesinghe replacing him as president.

Sirisena has a chequered history in Sri Lankan politics.

Sirisena was part of former President Mahinda Rajapaksa’s cabinet before defecting to the opposition and winning a surprise election victory against Rajapaksa in 2015.

As President, Sirisena formed a close partnership with Wickremsinghe, appointing him Prime Minister, before the two spectacularly fell out. This culminated in the sacking of Wickremesinghe in 2018, replacing him with Mahinda Rajapaksa. At the time, Wickremesinghe claimed that the move was “unconstitutional”.

This led to a constitutional crisis and power struggle between Wickremesinghe, Rajapaksa and Sirisena, with the former President dissolving parliament and calling snap elections. Sirisena then decided to not seek re-election, leaving office in early 2019. He was replaced as president by Mahinda’s brother, Gotabaya Rajapaksa.

Recently, the Sri Lankan supreme court ordered Sirisena and several other top government, police and intelligence officials to pay millions of rupees in compensation to the victims of the 2019 Easter bombings in Colombo. The court found that Sirisena, as former president, ignored multiple warnings about an imminent terrorist attack weeks before the deadly event took place.

But Wickremesinghe is also no saint.

Wickremesinghe, a six-time prime minister, won a parliamentary vote with the backing of the Rajapaksa’s Sri Lanka Podujana Peramuna party to replace Gotabaya Rajapaksa in July 2022. For this reason, he is accused of owing his position to the family.

Upon gaining the presidency, Wickremesinghe immediately cracked down on protesters, condemning the protests as “against the law” and calling protesters “fascists”. Under his watch, more than 140 protesters have been arrested and its leaders driven into hiding.

In August 2022, the United Nations condemned his government’s crackdown on protesters. The UN also criticised the repeated use of emergency measures, such as curfews, calling them a “misuse of emergency measures”.

The president has also been accused of delaying this poll, claiming the economically crippled country cannot afford to spend 10 billion rupees on a local election. However, the election commission decided to proceed despite the president’s request. Nonetheless, this raises doubts about Wickremesinghe’s respect for the democratic process.

What Sri Lankans desperately need is political stability and good economic management so the country can dig its way out of its worst crisis since independence.

Sirisena and Wickremesinghe offer neither. The former is struggling to finalise a bailout deal with the International Monetary Fund and both are notorious for poor political decision making and unpopular with a public desperate for change.

Therefore, Sri Lankans are faced with two establishment candidates who only offer more of the same.

The solution, at least for the time being, is for Wickremesinghe to call a presidential election so the next president has a clear mandate by the people. This will assist in forming a stable government and in bailout negotiations with the IMF.

Power also needs to be decentralised through ambitious political reforms that allow for wider participation and decision making in parliament. While, admittedly, this would be difficult under both Sirisena and Wickremesinghe, it is the first step in dealing with corruption and nepotism in Sri Lankan politics.

Presidential candidates serious about solving the countries problems also need to focus on key issues, such as rebuilding the economy, accountability for human rights and rebuilding political integrity and public trust.

Only once this is achieved, and Sri Lanka has shed itself of its dysfunctional political past, will it be able to recover.

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A Hybrid Political System for Pakistan: A Proposal

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The political system of Pakistan is an amalgamation of Islamic, British, and Indian influences, shaped by a multifaceted array of religious, ethnic, and regional factors, making it a culturally rich and ever-changing landscape. Pakistan is renowned for its powerful military establishment, which has traditionally wielded significant influence in determining its political direction. The nation’s political history is characterized by cycles of military rule, punctuated by several coups, followed by phases of democratic rule, though the military has continued to exert a significant degree of influence in the country’s politics. Furthermore, Pakistan has had to contend with the pernicious threat of extremism, with various militant groups operating within its borders and perpetrating terrorist attacks, which have destabilized the nation’s political, social, and economic stability.

This article aims to shed light on the challenges faced by the political system in Pakistan, specifically concerning the current political turmoil the country is experiencing. It also suggests a potential solution to stabilize the system and bring about a revolution in the way politics is conducted in Pakistan

The challenges faced by Pakistan’s democracy are compounded by the elite classes’ actions. The country is currently facing significant upheaval, which can be attributed to several factors. The lack of solid democratic institutions, frequent military takeovers, and the involvement of powerful military and civilian elites are among the underlying causes of the country’s political instability. Additionally, ethnic and regional conflicts, poverty, and economic growth issues further exacerbated political instability. The ongoing conflict in Afghanistan, as well as political unrest in neighboring countries, have also had an impact on the country. Furthermore, Pakistan’s history of military control, political corruption, and a lack of a deeply ingrained democratic culture have all contributed to the volatility in its political system.

The current political quagmire that plagues Pakistan is multifaceted, primarily stemming from a dearth of political acumen and a paucity of commitment on the part of leaders to prioritize the exigencies of the populace over their own personal and factional interests. This has led to a diminution of public confidence in the political system and government officials. Furthermore, the military’s prolonged political intervention and sway history has exacerbated a lack of democratic stability and accountability. Another critical conundrum that has impeded the country’s political evolution is the preponderance of corruption and nepotism in every government agency, rendering it difficult for citizens to repose trust in government officials. As a result, there is a burgeoning loss of faith in institutions of all varieties, with people losing trust in the government, corporations, and political leaders.

Furthermore, the failure of successive governments to address the issue of corruption has further undermined public trust in the political system. The permeation of corrupt practices in every government institution has made it difficult for citizens to have faith in government officials, leading to a general disillusionment with the political system. Additionally, the lack of transparency and accountability in government operations has enabled corrupt officials to operate with impunity, further eroding the public’s trust in the political system. The aforementioned issues have resulted in a political climate marked by a lack of stability and continuity, hindering the country’s economic and social development. It is imperative that the political class and other stakeholders work towards addressing these issues to ensure that the political system can effectively serve the people’s needs and promote the country’s long-term stability and prosperity.

Proposing A New Way to get stability in Political System?

A hybrid political system combines characteristics of many political systems, such as democracy and autocracy. Two examples are a semi-presidential system, which combines a prime minister and a president, and a federal system, which combines a central government with regional administrations. Hybrid systems can also include components of other kinds of democracy, such as a parliamentary system combined with a robust presidential system. These systems are frequently viewed as a compromise between competing political ideologies or as a means of balancing the strengths and shortcomings of various systems

If the official replaces the current political system with a hybrid one, it could be very beneficial. One of the main advantages of a hybrid system is that it allows for a balance of power between the legislative and executive branches of government. In a presidential system, the executive branch is separate from the legislative branch, with the president having a lot of power. In a parliamentary system, however, the executive branch is accountable to the legislative branch. In a hybrid system, the executive branch has some independence from the legislative branch but is still responsible for it. This helps to prevent too much power from being concentrated in one person or group and also helps to protect citizens’ rights and to avoid abuse of power.

An additional benefit of implementing a hybrid system is that it may facilitate more efficient decision-making by leveraging the strengths of both presidential and parliamentary systems. In a presidential system, the separation of powers can result in stalemates and prolonged indecision, while in a parliamentary system, the government can swiftly collapse if it loses the legislature’s support. A hybrid system, on the other hand, can offer a balance of stability and agility, allowing for more prompt decision-making while maintaining the accountability of the executive branch. Furthermore, considering Pakistan’s history of military involvement in politics, a hybrid system can provide a mechanism to hold the military accountable to the civilian administration and reduce the likelihood of military intervention.

It is imperative to acknowledge that a hybrid system may not be the ultimate remedy for all of Pakistan’s issues, and its successful operation would require meticulous planning and execution. Nevertheless, this system could potentially provide a glimpse of sustained stability in Pakistan’s political landscape, and it is incumbent upon the authorities to consider this system as a viable option to circumvent further obstacles.

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