On February 1, 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 (the last such case appears to be that of the case of Sadaqat Khan V Chief Election Commissioner (2008), where it was determined and confirmed 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 Bangladeshis living abroad. The Urdu-speaking Bangladeshis are fearful of their fate if the proposed law comes into force. Concerns have also been aired by legal experts and human rights organisations in Bangladesh and abroad. It is likely that the United Nations High Commission for Refugees (UNHCR) is following the progress of the proposed law with a degree of trepidation.
To understand this level of disquiet nationally and globally, 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 ways for acquiring citizenships of Bangladesh.
Section 4(1) defines citizenship by birth. However, 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!
Although the definition of enemy alien is very narrow in international law, reading between the lines, the policymakers of Bangladesh would probably define the term as follows: “Any person living in Bangladesh who supports or supported another state with which Bangladesh is or was at war.” On that assumption it may be possible to infer who would be encompassed by this subsection.
Only occasion that Bangladesh had been at war with another country was in 1971, when it fought Pakistan and won its independence. It is well-known that a large part of the Urdu-speaking population, among others, actively supported the Pakistan Army during that war. These people could come under the above definition. However, it would not be the enemy aliens whose citizenship would be at risk (if they are Bangladeshi citizens) under the proposed law, it is their children who purport to lose their birth citizenship simply by virtue of being the children of enemy aliens, thereby becoming stateless. Their number is estimated to be over 250,000.
To create statelessness arbitrarily through legislation is an extraordinary proposition. It defies logic and is against the principles of natural justice. 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.” It also negates the UNHCR's aspiration to reduce statelessness to zero by 2024.
A well-established principle of rule of law is that a new legislation cannot have retrospective effect. However, this proposed law clearly shows retrospective intent. In an unprecedented move, Section 3 of the draft states that this Act would have priority over, among other things, any previous court decisions or decrees. A true interpretation of that may have the effect of nullifying the Sadaqat Khan decision stated above.
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, getting medical treatment, or just travelling. Interestingly, this would also include those who were born on the soil of India during the nine-month long liberation struggle as well as those Bangladeshis who were born in the territory of the then West Pakistan due to, perhaps, their parents working there, or being stranded after the Liberation War. Their 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 stand for any local or national elections, 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. These restrictions are clearly inconsistent with the Constitution which provides that the State shall not discriminate against any citizens on grounds of place of birth only.
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 affected 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 powerful Western capitals. Properly utilised 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 of 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 policymakers' 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 would be inconsistent with the Constitution, in breach of a number of international treaties and charters and against the country's economic and cultural interests. The implementation of such a 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 compelling.
The writer is a British Bangladeshi, a barrister and a tribunal judge in England. E-mail: firstname.lastname@example.org