Woman's Right to Transmit Citizenship to Her Children is Denied

In one of the first cases to raise the issue of sex discrimination, the High Court Division of the Supreme Court of Bangladesh in September 1997 declared that a law that prevents Bangladeshi women from transmitting their citizenship to children born from marriages to foreign husbands is not unconstitutional or in violation of fundamental human rights.

Facts
The petitioner, Ms. Sayeeda Rahman Malkani, Bangladeshi national, lived in Paris where she was pursuing doctoral research at Sorbonne University and working for the United Nations. She married an Indian citizen during the course of her stay in Paris. Ms.

Malkani had visited Bangladesh several times with her children, using her Bangladeshi passport on which the two minor son's names were endorsed.

In 1992, an official at the Bangladeshi Embassy in Paris cancelled the names of the two boys from Ms. Malkani's passport on the ground that since she had married an Indian citizen, her children could not be Bangladeshi citizens, and therefore their names could not be endorsed in her passport.

Legal Issues
The case raised the issue of whether the cancellation of endorsement of the names of the two boys in Ms. Malkani's passport had been made under lawful authority or not. It also raised the issue of constitutionality of legislation which prevents Bangladeshi women from transferring their citizenship to their children.

a) Citizenship Laws
Matters of citizenship in Bangladesh are governed under the Citizenship Act of 1951 ("the Act") and the Bangladesh Citizenship (Temporary Provisions) Order, 1972 ("the Order'). Section 5 of the act provides that a person will be a citizen of Bangladesh by descent if "his father is a citizen of Bangladesh at the time of his birth." Article 2 of the Order provides that a person is a citizen of Bangladesh if that person's "father or grandfather was born in the territories now comprised in Bangladesh and who was a permanent resident of such territories on the 25th day of March, 1971, and continues to be so resident."

b) The tight to Equality
The Constitution of Bangladesh in Article 152 (1) defines a citizen as "a person who is a citizen of Bangladesh according to the law relating to citizenship." However, Article 26 of the Constitution specifically states that any law which is inconsistent with the fundamental rights as provided by the Constitution would be void to the extent of that inconsistency.

In the chapter on fundamental rights, the Constitution also provides, under Articles 27 and 28, for equality between citizens of Bangladesh. Article 27 provides that all citizens of Bangladesh are equal before the law and are entitled to equal protection of law. Article 28 (1) provides that the State will not discriminate against any citizen on the grounds only of religion, race, caste, sex or place of birth. Article 28 (2) provide that women shall have equal rights with men in all spheres of the State and of public life.

Legal Submissions
Lawyers for Ms. Malkani argued that the relevant provisions of the Act and Order were discriminatory in that they deny women the right to transmit their citizenship to their children and are violative of fundamental rights as guaranteed by articles 27, 28 and 29 of the Constitution. They also argued that Section 13 of the General Clauses Act of Bangladesh clearly states that words importing the masculine gender be taken to include females, and therefore the word "father" in Section 5 of the Act and Article 2 of the Order includes the "mother."

The petitioners also relied on the well known Unity Dow judgment of the Botswana Supreme Court as a persuasive precedent. The lawyers further referred to the judgments of the European Court of Human Rights and pointed out the provisions on nationality in the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), to which Bangladesh is a signatory.

It was argued as well that the government of Bangladesh in its Combined Third and Fourth Periodic Report before the United Nations Committee for Elimination of All Forms of Discrimination Against Women had specifically stated that "measures are being taken by the Government to ensure equality between men and women with regard to citizenship and rights."

The Court appointed three senior lawyers as amicus curiae, of whom one stated that the statutory provisions were violative of the fundamental rights of women, while two others stated that no fundamental right had been infringed and that the cancellation of the endorsement therefore had not been carried out without lawful authority.

INTERIGHTS, a London-based human rights organisation, provided a memorandum on comparative case law relating to women's citizenship rights which was made available to the Court through counsel for the petitioner and one of the amicus curiae.

Judgment
The High Court held that the cancellation of the endorsement had been made without legal authority and that the mother being the legal and natural guardian of her minor children was entitled to visit the country with her children and to have their names endorsed in her passport. The Court however held that despite the guarantees provided in the Constitution the statutory provisions would prevail and that children could only receive citizenship through the male line.

An appeal from this judgement to the apex court, the Appellate Division of the Supreme Court, is currently under consideration.

The writer is working as a Legal Intern in the Intern in the INTERRIGHTS, the international centre for the legal protection of human rights.