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A Call for the Review of the Proposed Citizenship Law of Bangladesh

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By Najrul Khasru

On 1st February 2016 the Cabinet of Bangladesh government approved its draft Citizenship Bill 2016, paving the way for it to go through the Parliamentary procedure at a suitable time. That procedure is yet to be initiated.

Bangladesh being a unitary state with a static homogeneous population, its citizenship legislation should not generate, in the normal course of events, much interest. Unlike countries such as the USA and Britain where nationality and citizenship issues generate voluminous case law every year, scarcely any such issues reaches the Supreme Court of Bangladesh. (Indeed, the last such case appears to be that of the case of Sadaqat Khan V Chief Election Commissioner (2008), where a Division Bench of the High Court Division of the Supreme Court of Bangladesh determined that all members of the “Urdu-speaking people” of Bangladesh, who satisfied the existing legal framework for acquiring citizenship, were citizens of Bangladesh.)

However, the content of this particular draft legislation has astounded a large number of people.  There has been a growing level of anger and apprehension about the proposed law among the 1.5 million people of Bangladeshi origin living in the UK, USA, Canada, Europe and Australia. Those that are involved in helping the Urdu speaking Bangladeshi communities and Rohingya settlers in Bangladesh are deeply fearful of these voiceless people’s fate in Bangladesh if this proposed law comes into force. Concerns have also been aired by legal experts and human rights organisations in Bangladesh and abroad. It is understood that the United Nations High Commission for Refugees (UNHCR) is following the progress of the proposed law with alarm and a degree of trepidation.

To understand this level of disquiet among experts, national and international rights groups and Bangladeshis settled abroad, it is necessary to have an in-depth, objective and focused analysis of the salient points of a few provisions of the proposed law.

The draft law contains five chapters (it erroneously numbers the chapters as first, second, fourth, fifth and sixth), 28 sections and one schedule. The discussion in this article would be confined to just a few sections within chapters one and two of the draft, which primarily provide the definitions of terms used in the draft and deal with procedures for acquiring citizenships of Bangladesh.

Section 4(1) of the draft provides that to be a citizen of Bangladesh by birth, a person has to be born in the territory of Bangladesh and one of their parents has to be a citizen of Bangladesh (by birth) on or after 26th March 1971.

What that appears to mean is that those who lost their parents before the 26th March 1971 would not be entitled to claim citizenship of Bangladesh by birth. A large number of senior citizens would stand to lose their citizenship under this section of the proposed law. It is inconceivable that the government would have want such an outcome. The section needs to be redrafted to reflect the precise intention of the policy makers. It is noteworthy that the Chief Justice of Bangladesh, Justice Sinha, has repeatedly pointed out the difficulties the judiciary faces when carelessly drafted and inadequately scrutinised legislation enters the statute book.

Section 4(2)(b) of the draft states that the children of  enemy aliens would not be entitled to have citizenship of Bangladesh by birth regardless of whether they fulfil the criteria for such citizenship.

To identify those who would be affected by this, it is necessary to understand the definition of the term enemy alien.  Section 2(7) of the draft defines enemy alien as a state which is or was engaged in a war with Bangladesh. This is totally unhelpful, as we know that a state cannot be a parent and even in the 21st century it still takes human beings to give birth to human beings.

Assuming that the draft definition is meant to read, “Any person living in Bangladesh who supports or supported another state with which Bangladesh is or was at war”, we may be able to infer who would be encompassed by this subsection.

Only occasion that Bangladesh had been at war with another country was in 1971, it was the war of independence, with Pakistan. It is well known that a large part of the Urdu-speaking population, supporters of some right wing political parties and those employed as razakers and agents of Pakistan Army actively supported the Pakistanis during that war. These people could come under the definition of enemy aliens. Many of these people would be dead now due to the passage of time and some would have left or fled the country. Therefore, the total number is likely to be no more than a few thousand. However, it would not be the enemy aliens whose citizenship would be at risk under the proposed law, it is their children we purport to lose their birth citizenship simply by virtue of being the children of enemy aliens, thereby becoming stateless.

This is an extraordinary proposition at many levels. It defies logic, is against the principles of natural justice and totally arbitrary. It comes into sharp conflict with Article 15 of the Universal Declaration of Human Rights which provides: “Everyone has a right to nationality” and “No one shall be arbitrarily deprived of his nationality.” It falls foul of UNHCR’s declaration: “Statelessness is a profound violation of an individual’s human rights.” Furthermore, the proposition defies Bangladesh’s obligations under the International Convention on Civil and Political Rights which it ratified in 2000.

Out of the several groups of people as identified above who would come under the ambit of this provision, it is the Urdu speaking community which would probably number the largest. It is estimated that over 400 thousand members of this community live in Bangladesh and a substantial number of them, mainly young, would appear to stand to lose their Bangladeshi citizenship, which was earlier bestowed upon them by the Supreme Court in the case of Sadaqat Khan.

A well-established principle of Rule of Law is that a new legislation cannot have retrospective effect. This principle would suggest this proposed law should only apply to those born after it comes into force, and therefore would have no impact on those that were declared Bangladeshi citizens by the Court following its interpretation of the law in existence at the time. However, this proposed law clearly shows retrospective intent. Very unusually s.3 of the draft states that this Act would have priority over, among other things, any previous court decisions or decrees. This, incidentally, echoes Chief Justice Sinha’s expressed concerns about the other two organs of the state undermining the judiciary.

The UNCHR, which is currently grappling with the task of achieving basic human rights of 10 million stateless people worldwide, must be following Bangladesh’s attempt to legislate statelessness with deep alarm. Such law in Bangladesh would substantially contribute to nullifying UNCHR’s declared aspirations to reduce statelessness in the world to zero by 2024.

Section 5 of the draft defines citizenship by descent.

This provides citizenship to children born outside of Bangladesh to a Bangladeshi parent or parents. These children would include those whose parents were abroad during their births perhaps studying, working, having medical treatment, or just travelling. Crucially this would also include those who were born on the soil of India during the nine month long liberation struggle. There number would probably be tens of thousands and the vast majority would have no other nationality. One would expect them to have all the rights enjoyed by all other citizens of Bangladesh. But by virtue of sections 13 and 7(2) of the draft their rights would be severely restricted turning them virtually second class citizens in their own country. For example, they would not be eligible to become an MP or the President of the country, would not have any entitlement to be elected in local government posts, would not be allowed to become a Supreme Court Judge or have any government employment, and would have no right to organise a political group.

Putting aside the issue of blatant breach of fundamental rights enshrined in the Constitution of Bangladesh, the purpose as to why a democratic government would want to restrict so drastically the rights of a group of its own people who were just happened to be borne outside of the country, is beyond comprehension.

Draft sections 5, 7, 8 and 13 combined, if implemented, would firstly deny the right of citizenship by descent to second and subsequent generations of Bangladeshis born abroad, and secondly all other Bangladeshis who have acquired citizenships of another country would have similar restrictions as stated above on their Bangladeshi citizenships.

It is reliably estimated that 1.5 million Bangladeshis living in the UK, USA, Canada, Europe and Australia would be effected by these provisions. The purpose of creating a distance between them and the land of their origin by means of legislation is unfathomable. These are highly resourceful people, contributing over 4 billion dollars a year to Bangladesh’s foreign exchange. Many of them are highly skilled, with expertise in diverse fields and are well connected in the powerful Western Capitals. Properly utilized they could play a significant part in the government’s aspirations to turn Bangladesh into a middle income country.

 A study conducted by the Economist in June 2015, found that countries all over the world are now recognising that their citizens abroad can benefit the country of their origin in multiple ways and for generations to come. Countries as diverse as Nigeria, Turkey and Vietnam are discovering ways of tapping into the expertise that their own citizens settled in the West possess. An increasing number countries, in order to bring their resourceful expatriate communities closer to home, are now recognising that the Diasporas are simply an extension of their population within their own territories. A significant number of countries have reserved seats in their Parliaments for their citizens living abroad. Against this world trend, Bangladesh’s policy makers’ decision to take a regressive step is bewildering.

The evidence that this draft legislation has not been properly thought through is pretty conclusive. Its various provisions would go against natural justice and the concept of the Rule of Law, be inconsistent with the Constitution, in breach of number of international treaties and charters and against the country’s economic and cultural interests. The implementation of such law would bring the country’s democratic credentials into disrepute. Bangladesh would lose its moral authority to be critical of nations such as Myanmar, where human rights violation has been institutionalised.

The argument for a thorough review of the draft legislation is overwhelming.

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The author, a British Bangladeshi, is a barrister and a tribunal judge in England. khasru_uk@yahoo.co.uk

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