June 10, 2016
by CR Abrar
MEDIA reports inform that in early February the cabinet has approved the Citizenship Act 2016. The text is likely to be placed in the parliament in its next session. The act is meant to supersede the Citizenship Act 1951 and the Bangladesh Citizenship (Temporary Provisions) Order 1972.
A sensitive reading of the law raises a number of concerns about its intent, fairness, objectivity, efficacy and enforceability. It also elicits the question if the law is deferential to the constitution of the republic, if it is in consonance with Bangladesh’s obligations under various international instruments and if it is premised on the principle of natural justice. This essay is a review of several important sections of the law.
The constitution of Bangladesh, the supreme law of the land, clearly stipulates that ‘all citizens are equal before the law and are entitled to equal protection of the law’ (Article 27), ‘The state shall not discriminate against any citizen on grounds of only religion, race, caste, sex or place of birth’ (Article 28) and ‘to enjoy protection of the law and to be treated in accordance with law is the inalienable right of every citizen’ (Article 31).
Bangladesh is also obliged to be respectful to international standards pertaining to nationality as it is a state-party to several international human rights treaties. Article 15(1) of the Universal Declaration of Human Rights unequivocally affirms that ‘Everyone has the right to a nationality’ and that ‘No one shall be subjected to arbitrarily deprivation of his nationality….’ The International Covenant on Civil and Political Rights that Bangladesh ratified in 2000 lays out that ‘Everyone has the right to a nationality’ (Article 24 (3)).
The right to acquire nationality (Article 7) was enjoined in the Convention on the Rights of the Child that Bangladesh ratified in 1991. Article 2(1) of this convention dealt at length on the responsibility of state parties. Included among them was ‘States parties shall respect and ensure the rights set forth in the present convention to each child within their jurisdiction without discrimination of any kind… irrespective of the child’s or his or her parent’s or legal guardian’s race,… language, religion, political or other opinion, national, ethnic or social origin….’ It went on to add that, ‘States parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members’ (Article 2(2)).
The text of the law presents the message that its framers did not take cognisance of the bindings that the law making process is subjected to both the country’s constitution as well as international law.
Chapter II of the act deals with procedures for obtaining citizenship. While (Section 4/2/a) justifiably excludes children of diplomats serving in Bangladesh, it also denies citizenship to a child if ‘His/Her father or mother is an alien enemy’ (Section 4/2/b). There are major problems with this provision. In Section 2 under ‘Definition’ of the said act ‘enemy alien’ is defined as ‘any state which was or is engaged in war against Bangladesh’. How can a state be the father or mother of a child? Even if this definitional flaw is overlooked, is not depriving a child of citizenship for the deed of his/her parents a violation of the principles and state obligations stipulated above? Also pertinent is the question: should an enemy of the past be always be treated as an enemy? Surely, evidences are replete in history where today’s friend could be tomorrow’s enemy and vice versa.
Under Section 5 on citizenship by descent, a person of Bangladeshi parentage born outside Bangladesh will be deprived of citizenship if his/her birth is not registered within two years of birth or if s/he is not issued with a birth certificate in accordance with the law of that country. One would argue that nationality should not be denied on grounds of missing a timeframe or meeting an administrative requirement or be a matter of penalty.
Section 5/3 disqualifies a citizen by birth and descent ‘if s/he or his/her father or mother joins any military or quasi-military or any special force and engages or had engaged in a war against Bangladesh or denied the existence of Bangladesh or is engaged in any activity against Bangladesh.’ This section is fraught with complications. Why should children be made to suffer for the acts of their parents? Is not the provision a gross violation of the principle of natural justice and that of Article 2/2 of the Convention on the Rights of the Child? No less important are the questions what would constitute ‘denial of existence of Bangladesh’ or ‘activity against Bangladesh’? The definitional part of Chapter I of the act makes no efforts to unravel these terms, thus rendering them to subjective interpretation of those who would hold the state power.
Section 7 of the proposed act discriminates against expatriate Bangladeshi nationals who acquire citizenship and disqualifies them from participating in elections to the positions of local government, national parliament, presidency; being appointed to any service of the republic, including justice of the Supreme Court, or organising any political party. This provision appears to be in contravention with Article 28 of the constitution that prohibits the state not to discriminate against any citizen on several grounds including that of place of birth. The discriminatory provision is also applicable to anyone who gains citizenship through any means (descent, dual, honorary, naturalised or marriage) other than by birth (Section 13). It may be argued that this section is an infringement on Article 27 of the constitution that enshrines equality of all citizens before the law.
One may further contend that discrimination instituted against various groups of citizens except for those who gained citizenship by birth is in a gross violation of Article 29 of the constitution that ensures equality in public employment or office in the service of the republic.
Section 11 of the law lays down the conditions of securing nationality through marriage. Among other conditions, a person would be entitled to gain nationality through marriage if ‘his/her father, mother, grandfather or grandmother is not engaged in a war against Bangladesh or not a member of enemy alien force’ (Subsection C), ‘if s/he is not an illegal immigrant in Bangladesh’ (Subsection D) and if ‘s/he is not a citizen of any country with which Bangladesh does not have a diplomatic relationship or s/he is not a person whose marriage registration has been prohibited in Bangladesh’ (Subsection e). With regard to 11/C, it has already been stated earlier that penalising an individual for the actions of his/her parents and grandparents is against the principle of natural justice. The provision laid out in 11/D will adversely impact on the ‘right to form family’ and other human rights of Bangladeshi citizens who are married to foreigners, including the Rohingyas. It is well recognised that the legal status of a person should not be a hindrance towards getting married, forming family and passing nationality to spouse. Needless to mention that the deprivation of nationality will result in lack of access to a wide range of basic services and may subject the individuals concerned to various kinds of harassment and uncertainties. One may also note that many Bangladeshi citizens living abroad have secured citizenship by marrying nationals of those countries and many more intend to do so. Section 11/E prompts the fundamental question under what law the Bangladesh government would prohibit the registration of marriage? Would that not be a breach of several international commitments including the UDHR, the ICESCR and CEDAW?
Section 12 details out the procedure for citizenship gained through incorporation of territory as part of Bangladesh. It states that a ‘A list of people obtaining Bangladeshi citizenship will be published by the government through a notification official gazette and that notification will be citizenship certificate for the people included in the list’ (Section 12/2). The provision has not addressed the issue about the fate of those erstwhile enclave dwellers who for some reason have missed out registering their names with competent authorities. The number thus far has been estimated to be in excess of 900. The absence of clear provision in the law in all likelihood would render these people stateless.
A curious anomaly has been noted in Section 16. It grants citizenship to any person born in a ship or an aeroplane of Bangladesh or registered in Bangladesh. This provision does not mention if the person born in the vessel concerned would need to have one Bangladeshi parent. Pertinent question may be raised that if birth on a Bangladeshi flag carrier entitles an individual to Bangladeshi citizenship then under what logic such citizenship would be denied to a person who is born on the soil of Bangladesh?
The opaqueness of the law is reflected in Section 18 that deals with the criteria to disqualify a person to citizenship. It states that a person shall not be qualified to be a citizen of Bangladesh, if s/he (a) ‘expresses direct or indirect allegiance to any foreign state except for dual nationality…;’ and (d) ‘resides in Bangladesh as illegal immigrant.’ The law does not detail out ‘direct or indirect expressions of loyalty.’ Also currently Bangladeshi citizens have the right to marry and confer citizenship to their spouse, even if they are illegal immigrant. The imposition of such condition will infringe on the right of Bangladeshi citizens to marry persons of their choice and form a family.
The draconian nature of the law is reflected in Section 20 that deals with the termination of citizenship. Citizenship of all categories, except those acquired through birth, may be terminated, among other grounds, ‘if s/he expresses disloyalty to sovereignty or the constitution… through any action and behaviour’ (Subsection C) and ‘if any information is received regarding renouncing his/her loyalty to Bangladesh.’ Needless to say, the law does not provide any explanation about what constitutes or who decides on ‘expression of disloyalty to sovereignty or the constitution.’ Simply receiving information about an individual renouncing his loyalty should not constitute any ground of terminating citizenship.
Section 28 of the law stipulates, ‘Citizenship gained under the repealed acts shall prevail, subject to consistency with the provisions of this act’ (Subsection 2/a). If read in conjunction with Section 3 pertaining to the prominence of the law over previous judgements, then one has every reason to surmise that this provision has the potency to nullify the 2008 High Court judgement that reaffirmed Bangladeshi citizenship of the camp-dwelling Urdu speaking community. No good law can incorporate a provision that would compromise the constitutionally elevated position of the higher judiciary as a source of law.
A couple of months ago at the launch of a book, the chief justice of Bangladesh lamented the lawmakers ‘lack of interest’ in the laws. He observed that bills containing lacunae were being passed by the parliament without thorough debates and scrutiny. The resultant flawed laws, he said, were causing sufferings to the people besides bringing pressure on the judiciary. The citizenship law provides the parliamentarians a worthy opportunity to take on board the advise of the chief justice in its proper stride.
CR Abrar teaches international relations at the University of Dhaka. He researches and writes on migration and rights issues.