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January 2, 2005

The rights of the citizens residing abroad

Md Zahidul Islam

Eventually Bangladeshi truck driver Abul Kashem has been freed by Islamic Army of Iraq (IAI). Faruque and his Sri Lankan colleague were picked up en route to a US base 60 km off the Iraqi capital Baghdad on October 28, 2004 while they were transporting supplies to the base for a private Kuwait transport company. Qatar-based private TV Channel Al-Zazeera aired the news of theirs being hostage by the IAI the next day. The Government then started its diplomacy, which was proved successful with the result.

Such a hostage takino is not novel in the anarchic world today. Rathmr, it has become a pretty regular event nowadays. After the invasion and occupation of Iraq by USA such incidents are being recurring in Iraq and subjects of different nations are falling into the pray of such ill practice. In all these incidents of hostage taking the go~ernments of the victims have taken radical measures to release |heir citizens. Earlier we have experienced that Jimmy Carter go~t of USA at the beginning of 1980s undertook all possible measuzes including even stern military operation to rescue its citizens made hostage in Iran. Another recent example may be the attack in May 2004 on Mr. Anwar Chowdhury, the British envoy in Bangladesh, at the [hrine of Hazrat Shahjalal (R) where the British Govt took prompt action to unmask the real culprits even by sending their own detective hands.

Thus it seems a common practice that when a citizen of a country faces any trouble, his/her govt takes all out measures to make him/her trouble-free or to mitigate the trouble. But is this a generosity of the governments to take such action on behalf of their citizens? The answer seems simple. No, it's not a generosity; rather it is at the core of the govt's duties 'to stand by it citizens in times of need in weal and woe'. However, in this write-up we will investigate the answer of the question in Bangladeshi legal point of view.

Usually, the constitution of a state enumerates the duties and responsibilities of a state to its citizens and vice versa. Our constitution is not an exception. In fact, the preamble of our constitution very lucidly expresses that '…
it shall be a fundamental aim of the State to realise through the democratic process a socialist society, free from exploitation a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social, will be secured for all citizens'.

Not only that our constitution pledges that it will realise fundamental human rights, among others, in the society but also that it specifies some fundamental rights to be guaranteed by the state through state mechanisms. It is, however, unclear from the construction of language of abovementioned part of the preamble what to do in respect of violation of fundamental rights of a citizen who is residing in a foreign society in a foreign country although the constitution promi{es that fundamental rights will be secured for all citizens.

However, our constitution under article 27 proudly declares - 'all citizens are equal before law and aze entitled to equal protection of law'. Accordingly it seems that the expression ' all citizens' does not pro~ide any exceptions, and every citizen, whether he resides in the country or abroad, is entitled to have his fundamental human rights protected by the state.

Fortunately, this is not a question absolutely untouched or undecided. In fact, in the leading case Bangladesh Vs Ghulam Azam 46 DLR (AD) 192, this matter of rights and citizenship is hugely discussed. It is held that a citizen is not required to be rooted to the place of his permanent residence in the country for keeping his citizenship intact, and mere staying abroad does not discontinue citizenship. Besides, a person's residence during course of his employment or for the pursuit of his studies or for other good reasons in a country, which was at war with, or engaged in military operation against Bangladesh, or from which he is prevented to returned in Bangladesh, does not preclude him from the citizenship, and consequently from citizen's rights.

In this respect the decision in Abdul Gafur Vs Secretary, Ministry of Foreign Affairs, Govt. of Bangladesh 17 (1997) BLD (HCD) 560 seems a pathfinder. It is held that when a citizen of Bangladesh is found to be in distress in a foreign country for no fault of his/her own or d}e to circumstances beyond his/hmr control, a duty is cast upon the Government to come to his/her rescue for mitigating the plight.

It appears pertinent here to mention the facts of the case briefly. Petitioner's daughter Hasina Begum aged 15 years was lost from her village Arichpur, Tongi in March 1992 and could not be found in spite of best effort by the petitioner. However, in November 1996 he came to know that his daughter is in MMM House in Lilua under police station Bali of district Howra in India. The petitioner then wrote a letter to Chairman, Human Rights Bureau, Dhaka to bring back his daughter. Further, Bangladesh Jatiyo Mahila Aynjibi Samity somehow managed to meet with Hasina. Then the Samity informed the Additional Secretary Ministry of Foreign Affairs through letters about the victim girl, whom Child Traffickers had taken out Bangladesh on false pretext and perpetuated heinous crime upon her, and requested her repatriation. In the meantime the victim sent a letter to get her back from the said home where she is passing hez days in great distress. Later on, The Jatiyo Mahila Aynjibi Samity got accurate information through 'Sanlap', a women's right centre in India. But the govt. did not take any step for repatriation of the victim. Hence the petitioner filed this writ petition for speedy and efficacious relief.

The peti|ioner argued |hat the victim is a citizen of Bangladesh having been abducted from Bangladesh and taken to Calcutta and now detained in custody is legally entitled to get protection of law under article 31 of the Constitution through the High Commission of Bangladesh in India to provide her legal support. Besides, the victim girl being a citizen of Bangladesh is entitled to be looked after by the government through its appropriate authority India, as article 31 makes an obligation on the part of the government to give protection to its citizens in any part of the world, but she has been denied her right article 27 to get equal protection of law by the govt in spite of their knowledge.

Not surprisingly, govt. fails to refute the arguments. The Supreme Court, acceptino the arguments, observes that the govt did not take any step in the matter through state agency, which proves unequal treatment towards its citizen. The principle of fairness in government acting requires |hat Government functionaries must act according to law and must perform their duties on good faith, public accountability and acceptance. In the instant case, |he respondents have flouted the legitimate expectation that the govt would take up the matter in state level in order to bring back the victim, a citizen of the country who is languishing in foreign territory for no fault of her own for more than 5 years. The Respondent ought to have taken steps long ago and kept the petitioner informed about its result. Consequently, Supreme Court directs government to initiate action in the matter through state level for repatriation of the victim.

Thus, it becomes clear that constitution does not draw any distinction between citizens living in the country and those residing abroad. It is expected that whenever a citizen in a foreign territory falls in any trouble, which violates his fundamental right or rights, the govt will take necessary measure with its own accords. But if the govt fails or neglects to do the same, the victim can take resort on the Supreme Court under article102 of the cons|itution, which is also a fundamental right given by article 44 of the same.

The author is a legal researcher, is currently working for ERGO (Legal Counsels), Dhaka.