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The Concept of Dual Citizenship and the Draft Bangladesh Citizenship Act 2016

By Najrul Khasru :

“All persons are entitled to possess one nationality but one nationality only,” declared the League of Nations in 1930.There was nothing original about this statement. In fact it simply reiterated the dominant international perspective of the 19th century and most of the 20th century. The norm of the past centuries was that the citizens of a territory who ventured out or were forced out, took up the citizenship of their adopted country and their link with the land of their birth ceased. Being a citizen of two countries (dual citizenship) was seen as an abhorrence of the natural order.
However, in the last few decades with the advancement of liberal democracy, human rights, market economy and human mobility, an increasing number of countries have begun to accept the notion of dual citizenship. Indeed, some countries have, no doubt seeing the economic benefit, started actively encouraging dual citizenship.

Though there are a number of ways a person may become a dual citizen, in most cases it involves one of three methods. Firstly, when an immigrant becomes a naturalized citizen of their adopted country while retaining or being allowed to retain the citizenship of their country of origin. The second method is when the child of an immigrant becomes the citizen of a country by virtue of birth while obtaining or acquiring the citizenship of their parents’ or grandparents’ country of birth. The third method is when a person becomes a naturalized citizen through marriage while retaining the citizenship of their country of origin.

A recent report by a Washington based think tank, Migration Policy Institute, shows that about two thirds of the countries of the world accept some form of dual citizenship. It divided all the countries of the world into the countries of immigration and the countries of emigration in order analyse the impact of dual citizenship on various countries.

Generally speaking richer countries tend to be the countries of immigration as citizens of less developed countries are more like to migrate there, seeking greater opportunities. Therefore the dual citizens of developed countries are mainly the immigrants and their descendants. These countries may feel that they have nothing to gain and much to lose by allowing their immigrant communities to retain their original citizenships upon acquiring the citizenship of the host country. For example, retaining their birth-citizenship might prevent integration and might encourage immigrants to assert their own cultural and social norms thereby giving rise to disharmony and social tension with the host community. This has led several European countries, such as Germany, Austria and Denmark, to require, unless exceptional circumstances, renouncing of original nationality on acquiring citizenship of those countries. Nevertheless, for the vast majority of richer countries, the UK, France and the USA being the leading examples, their liberal values and high regard for the individual’s rights to choose, outweigh these difficulties, and the retention of their original citizenship by the immigrants after gaining the new nationality is at the very least tolerated.

By Contrast the countries of emigration, Bangladesh being one, have nothing to gain by restricting or taking away the citizenships of their countrymen (and their descendants) who have ventured out and acquired the citizenships of a richer country. In most cases the purpose behind venturing out and seeing citizenship of a more developed country is to gain better living conditions for themselves and their relatives left behind. Their emotional tie, firmly reinforced by the sense of being an ongoing citizen of their beloved country of birth (in the case of descendants, the land of their forefathers), gives them extraordinary motivations to use their newly gain wealth, knowledge and expertise to develop the country that they left behind and to increase its standing abroad. It makes great sense for the countries of emigration to peruse a policy of inclusivity, appreciation, encouragement of ongoing ties and equal treatment towards their fellow countrymen living abroad.

Bangladesh government has no statistics as to how many of its birth-citizens and their descendants have acquired citizenships of another country.  It is well known that most of such Bangladeshis live in the UK, Canada, the USA, Australia and in Western Europe including the Scandinavian countries. A reliable estimate puts the number at over 1.5 million. This is a large number and it is growing on a daily basis. It is basic economics which determines that these Bangladeshis should be actively encouraged to retain their link with their motherland. The most obvious way is by having a State policy which relentlessly hammers in the message that all Bangladeshis abroad will remain Bangladeshis for generations to come with the same rights and obligations as other Bangladeshis living at home. It is almost impossible to find a sustainable argument that dictates against that.

It is to the credit of successive Bangladesh governments that they have generally regarded Bangladeshis living abroad as an asset and have maintained a policy of encouraging them to retain their rich cultural heritage and invest in the economy of the country. Unlike India, it has long accepted the notion of dual citizenship for its citizens abroad, through as yet, has not put it into a firm legislative footing. The Draft Bangladesh Citizenship Bill 2016 is the first potential legislation to rectify that. However, the honeymoon ends there.

The Bill has been approved in principle by the Cabinet of the Government of Bangladesh. It is a poorly drafted document and contains a number of unintentional errors. For example, the proper interpretation of the definition of citizenship by birth contained in s 4 (1) of the Bill seems to show that those born within the territory of Bangladesh whose parents had died before 26th March 1971, are not  regarded as having citizenship by birth.

However, the unintentional errors and the quality of the draft are not the subjects of this article. In fairness it is the first official draft. It now has to go through various stages of scrutiny and it is likely these errors would be identified and eliminated before it reaches Parliament. The relevant issue here is the Bill’s various provisions regarding dual citizenship.

Section 5 of the Bill states that a person born abroad to a Bangladeshi parent immediately before the commencement of the Act will be a citizen of Bangladesh. But the person must be registered with the relevant Bangladesh Mission, within two years of their birth or the commencement of the Act, whichever is later.

The direct consequences of the restrictions in this section are twofold. Firstly, if those who are born prior to the commencement of the Act, failed to register within two years of its commencement, then they will not be able to have Bangladeshi citizenship under this provision. Secondly, the children of those parents who became Bangladeshi citizens by virtue of this section, will not be able to claim citizenship under this section as these parents will have become Bangladeshi citizens after the commencement of the Act and therefore their children are outside the ambit of this section. In other words it would be virtually impossible for the third or fourth generation Bangladeshis to claim Bangladeshi citizenship.

Section 6 purports to state that a birth-citizen of Bangladesh loses his citizenship upon acquiring a foreign citizenship, but then in certain circumstances, they may apply to the government for their Bangladeshi citizenship.

By taking away a Bangladeshi’s birth-citizenship and by placing the onus on the individual to go through a bureaucratic process to regain it, the blunt message the draft Bill is sending is this: as you have taken up the citizenship of another country, we don’t need you! But if you need us then ask us and we will consider it!

Section 7 of the Bill gives power to the government to restrict further the procedure under S.6, and remove citizenship gained under the said section.

This provision would not only provide further disincentive to re-acquire one’s birth – citizenship but also is grossly undemocratic as it takes way such drastic powers from the legislature and hands it to the executive.

Sections 7 and 13 combine indicate that Bangladeshi citizens with dual citizenship will not be able to stand for elections for parliament or local government, not eligible to be elected as President of the country, will not be allowed any appointment in the service of the country including judicial appointment in the Supreme Court, and will not be entitled to get involved in any political party or group.

This clearly is the killer blow! Apart from the voting right and the right to live in Bangladesh, it appears, if the Bill goes through, there will be no difference between foreign nationals in Bangladesh and Bangladeshis with dual citizenship. If there was any doubts before, this section makes it abundantly clear that Bangladeshi policy makers are no longer willing to tolerate the notion of dual citizenship unless the rights of such citizens are severely curtailed and they accept a second class status.

This also raises a separate yet relevant issue. The Founding Fathers of the Constitution of Bangladesh saw it fit that all citizens of Bangladeshi should have some fundamental rights. Article 27 of the Constitution declares that all citizens of Bangladesh are equal before the law and are entitled to equal protection of the laws. Under article 28 (1) it prohibits the States from discriminating citizens, inter alia, on grounds only of place of birth. Article 29 states that there must be equal opportunity regardless of place of birth, for all citizens in respect of employment or office in the service of the republic.

Accordingly it is clear that the Constitution considers all citizens of Bangladesh are equal without exceptions whether they are birth citizens, naturalized citizens or dual citizens, and that the State has no business meddling with that. It therefore goes without saying that only the Constitution has the power to introduce the restriction on equal treatment of any group of its citizens. Indeed, the Constitution has exercised that power under Article 66 (2) (C) by declaring that acquiring the citizenship of a foreign state would disqualify a Bangladeshi citizen from standing for Parliament. The 15th Amendment of the Constitution further clarified the position.

It is not clear whether the Cabinet was made fully aware of the implications of the Bill when its provisional approval was gained. If the government has no intention of taking a regressive step by severely restricting its citizenship law, which appears to go against the government’s liberal and progressive policy of recent years, then this draft Bill must be quickly shelved and those responsible for drafting must be instructed to return to the drawing board and re-draft the Bill incorporating the inclusivity principles.

If, in the unlikely event the government indeed wants to create a second class citizenship in the name of dual citizenship, then it appears, to do so it has no option but to seek a Constitutional Amendment. In such a case an open debate would be needed and all Bangladeshi, living abroad or at home, must have their voices heard.

The author is a British-Bangladeshi. He is a Barrister and a Tribunal Judge in England. khasru_uk@yahoo.co.uk