Bangladeshi domestic laws and policies do provide certain minimum procedural safeguards for persons including detained refugees and asylum seekers.  By providing protection against arbitrary detention, the Constitution of the People's Republic of Bangladesh guarantees the right to personal liberty of any individuals. The Code of Criminal Procedure, 1898 provides provisions for the procedural safeguards of any person including refugees and asylum seekers in cases of detention of any kind whether it is immigration related or related to other criminal matters. Additionally, The Legal Aid Services Act, 2000 contains provision for the granting of legal assistance to destitute litigants which could be accessible by the refugees and asylum seekers. However, due to absence of explicit provisions, sometimes the minimum procedural safeguards of the detained refugees or asylum seekers cannot be ensured. However, in this regard, the Supreme Court of the country attempts to ensure these procedural safeguards by issuing guidelines and through judgments in different cases that will be discussed in upcoming part. 

The Constitution of the People’s Republic of Bangladesh ensures the right to life and personal liberty by safeguarding protection against arbitrary detention, stipulated in Article 33. The fundamental safeguards to individuals arrested under ordinary law, which are stipulated in Article 33, state a: 

• Person detained must be promptly informed of the reasons for their arrest. 
• The detainee has the right to consult with and be represented by a lawyer of their choice. 
• The detainee must be brought before the nearest magistrate within 24 hours of their arrest. 
• A detainee cannot be held in custody for more than 24 hours without the magistrate's authorization. 

Similar safeguards can also be found in several provisions of the Code of Criminal Procedure (CrPC). Section 60 of the CrPC stipulates that, a police officer arresting a person must produce him before the magistrate having jurisdiction, and Section 61 states that a police officer must not detain an arrested person for more than 24 hours without the authority of a magistrate. 

The CrPC also entails that a detained person arrested for an offence that is bailable shall be released on bail if he or she furnishes a bail bond with or without sureties, referred in Section 436. On the other hand, section 437 of the CrPC states that an accused person arrested or detained for a non-bailable offence shall not be released on bail unless the court is satisfied that there are reasonable grounds for granting bail. The CrPC further ensures that an accused has the right to be defended by a pleader of their choice, stipulated in Section 340. On top of that, the Court of Magistrate can issue a search warrant for the discovery of any person who is reasonably believed to be under an unlawful confinement.1 Also, section 162 and 164 prohibits confessions made in detention unless they are made willingly to a magistrate. The CrPC also grants option to the accused that if the accused is not willing to confess, he will merely be placed in judicial custody and there cannot be any compulsion for extracting confession from the accused.2  

However, these procedural safeguards are not provided to a non-citizen enemy or a person who is arrested or detained under any law providing for preventive detention.3 The constitution authorizes preventive detention of up to six months without any trial or legal representation. The detainee is given a chance to present their case before the Advisory Board within six months from their time of arrest.4 The law further guarantees procedural safeguards in case of preventive detention. If detention is found to be "without lawful authority" or "in an unlawful manner," as defined by Article 102(2)(b)(i) of the Constitution, it may be challenged in court. In Abdul Latif Mirza v. Bangladesh and Matiur Rahman and others v. Bangladesh, the Supreme Court noted that it is illegal to make an arrest without a valid reason and to hold someone in custody for longer than is allowed.5

The domestic law of Bangladesh has provisions of providing ‘legal aid’6 to those who cannot afford legal representation. The legal aid services are provided without any kind of discrimination, and such safeguards can be sought by the refugees or asylum seekers. In the case of Refugee and Migratory Movements Research Unit (RMMRU) v. Government of Bangladesh (Writ petition no. 10504 of 2016), Supreme Court, 31 May 2017, the court tried to ensure procedural safeguard for Rohingya men who were detained beyond their term of imprisonment. The Supreme Court ordered to release them to their normal residence that is Rohingya refugee camps as sending them back to Myanmar was not possible. 

While Bangladesh’s domestic laws provide general procedural safeguards for detainees, these protections are not specifically tailored to refugees, and significant challenges exist in their application to refugee populations. At first, in the absence of any domestic law, the refugees or asylum are sometimes considered as ‘illegal immigrants’ and could be arrested under the Foreigners Act, 1946. Next, due to language barriers and lack of knowledge about their rights, they tend to fell victim of arbitrary arrest. Also, the refugees or asylum seekers in Bangladesh lack legal recognition by the government such as not providing any legal identity documents (except in case of Rohingya refugees, where the government recognized the Rohingya refugees as Forcefully Displaced Myanmar Nationals or refugees) due to which they are not always able to get legal aid services and hence cannot present their case in the court and unable to seek procedural safeguards. 

• 1

  Section 100, The Code of Criminal Procedure, 1898

• 2

  Section 162 and 164, The Code of Criminal Procedure, 1898

• 3

  Article 33(3)(b), The Constitution of People’s Republic of Bangladesh

• 4

  Ibid, a. 33(4), 33(5), 33(6)

• 5

  31 DLR (AD) (1979); 25 BLD (HCD) 90. 

• 6

  Section 2(a), The Legal Aid Services Act, 2002 states, "'' legal aid" means to give the litigants who are incapable of seeking justice due to financial insolvency, destitution, helplessness and for various socio-economic conditions - 
  (i) legal advice and aid in the cases to be filed, filed or pending before a Court; 
  (ii) remuneration for the mediator or arbitrator appointed for dissolving a case through mediation or arbitration in accordance with section 89A and 89B of the Code of Civil Procedure, 1908 (Act No. V of 1908); 
  (iii) any other assistance along with expenses for a case; 
  (iv) remuneration for the lawyers at the rate determined by the regulations for the purposes of sub- section (i) to (iii);"