Creating classes of citizens
Framing a new citizenship law is currently under active consideration of the government of Bangladesh. In early February 2016 the Cabinet had approved, in principle, the draft citizenship law. The purported aim of the law is to do away with the inconsistencies that exist between the Citizenship Act, 1951 and the Bangladesh Citizenship (Temporary Provisions) Order of 1972. While no one can dispute the need for an updated law taking into consideration the new realities of the globalised world; the proposed text incorporates a number of provisions that undermine the principle of natural justice and some even appear to be in contravention of the Constitution, the supreme law of the land. This essay will examine how the draft law creates various grades among the citizens, privileging one group over the others.
"All citizens are equal before the law and are entitled to equal protection of the law" is the unambiguous stipulation of Article 27 of the Bangladesh Constitution. Article 28 prohibiting discrimination "against any citizen on grounds of … place of birth" further reinforces the equality provision. Despite such explicit Constitutional obligation, the draft law creates sharp divisions among different categories of citizens. It favours those who acquire citizenship by birth over the others.
Section 6 of the law provides for "(a)ny person living abroad to apply for Bangladeshi citizenship upon making a application to the government in prescribed manner and condition, if his/her father or grandfather or grandmother was a Bangladeshi citizen before obtaining foreign citizenship". However, those who acquire citizenship following the above procedure are disqualified to enjoy certain rights (Section 7). Included among those rights are participating as candidates in elections to Parliament, Presidency and the local government, and forming any political party. It also debars them from any service of the republic, including as judge of the Supreme Court. There is little doubt such an unfair provision is palpably inconsistent with the fundamental rights guaranteed to the citizens under the Constitution. Jurists maintain that the "Constitution is categorical that all citizens are entitled to equal rights, and cannot be subjected to any discrimination and arbitrary treatment".
In the same vein, Section 13 of the Act restricts the rights of any person who acquires citizenship by descent, naturalisation or through marriage, or who holds dual or honorary citizenship. This Section, if read together with Sections 6 and 7, in all likelihood breaches Article 27 of the Constitution that guarantees equality of treatment of all citizens. It also violates Article 29 of the Constitution that provides for parity in public employment and office in the service of the republic.
The disqualification provision (Section 7) is contrary to several other Articles of the Constitution. Included among them are: Article 40 that "guarantees freedom of profession and occupation"; Article 66 that lays out "qualifications and disqualifications for election to Parliament"; Article 95 that establishes the conditions for "appointment of judges"; and Article 122 that sets out "qualifications for registration of voter". Therefore, while citizenship is definitely a pre-condition for election to Parliament and Presidency, appointment of judge or any public office and registration as voter, enjoyment of such rights (to get elected, hold public office and form political party) are not subjected to how citizenship is acquired by the concerned individual.
Being a state-party to several international human rights treaties Bangladesh is legally obliged not to frame any law contrary to those instruments. Sections 6, 7 and 13 of the proposed law are counter to Articles 2, 25 and 26 of the International Covenant on Civil and Political Rights (ICCPR) that Bangladesh has ratified. Article 2 of ICCPR calls on states "to respect and to ensure all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind…". Article 25 provides that "Every citizen shall have the right and the opportunity without any distinction mentioned in Article 2 and without unreasonable restrictions: (a) to take part in the conduct of public affairs,… (b) to vote and to be elected at genuine periodic elections… and (c) to have access on general terms of equality to public service in his country". Reaffirming equality provision Article 26 of ICCPR obliges that "the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground…".
Section 8 (1) of the draft Bill stipulates that "any citizen of Bangladesh will be able to obtain nationality of any country with whom Bangladesh has diplomatic relations, except the SAARC countries and Myanmar, or any other countries declared prohibited for obtaining citizenship through government gazette". No explanation has been provided for making this arbitrary distinction. Jurists have viewed this provision as "inconsistent with the Constitution". Needless to say, the provision will have an adverse impact on Bangladeshis who may have family ties with people in those countries, particularly spouses and children.
The proposed citizenship law suffers from a number of lacunae. In an age when nation-states are devising innovative means to harness human, financial and other resources of their citizens wherever they may be located or born (and of people of their origin), by offering them various kinds of incentives, Bangladesh's policy-makers appear to be heading towards the opposite direction by taking away whatever entitlements its citizens (other than those by birth) had thus far been enjoying.
One wonders whether the astute group entrusted with the task of drafting and vetting the law ever cared to see if the law would be beneficial for the country, or, at the very least, were in conformity with the Constitution and international law. Judicious law making process obliges the framers to go back to the drawing board, take into consideration the nation's interest, recast the text on the principles of natural justice (particularly, equality and non-discrimination), and bring it in compliance with the Constitution and international law.
The writer teaches International Relations at the University of Dhaka. He acknowledges Barrister Sara Hossain's contribution in framing the arguments.
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