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NEW CITIZENSHIP LAW Contravening principles of fairness and justice

Published: Sunday, December 25, 2016 5:01 PM    |     Modified: Sunday, December 25, 2016 5:01 PM

The proposed citizenship law contains a provision that allows it to supersede judgements of courts and gives retrospective effect to offences committed before the law is framed. All these are contrary to the provisions of the constitution and international treaties that Bangladesh has ratified. The vagueness of the terms and phrases will only lead to its misapplication, writes CR Abrar
BANGLADESH state, the all-powerful institution, is making moves to frame yet another law. The proposed law attempts to define the relationship between citizens and the state itself, and, in doing so, appears to be have flouted the very logic of Social Contract. The text of the law, thus far largely kept away from public scrutiny, has given rise to serious concerns among jurists and rights defenders.
The proposed law suffers from a number of shortcomings. Quite a few provisions not only appear to be vague, ill conceived and in breach of the constitution, they also contravene the principles of fairness and justice. The law in all likelihood will create conditions for statelessness for various categories of people, including children. In this essay the vagueness of the provisions for disqualification and termination of citizenship and how the law is likely to impact on children will be discussed.
A basic tenet of a good law is the usage of clear and unambiguous terms. This is something wanting in the text of the draft law. The text contains a number of terms either without defining them or doing so inadequately. Included among those are ‘enemy alien’, ‘denial of existence of Bangladesh’, ‘anti-Bangladesh activities’, ‘indirect expression of loyalty to another country’, ‘expressions of disloyalty to Bangladesh’s sovereignty and Bangladesh’s constitution’, and ‘renunciation of loyalty to Bangladesh’.
The term ‘enemy alien’ is defined as ‘any state that was or is engaged in war against Bangladesh’ Section 2(7). Curiously, in Section 4(2/B) enemy alien has been identified as a person. One is at a loss to figure out what is meant by ‘denial of the existence of Bangladesh’ and ‘anti-Bangladesh activities’ as those actions would disqualify the progenies of individuals to secure Bangladeshi citizenship who were or are engaged in such activities (Section 5(3)). Section 18(A) of the proposed law disqualifies an individual to gain citizenship other than those who enjoy dual nationality on grounds of ‘expression of direct or indirect loyalty to any foreign country’. While one may make some sense of the term ‘direct loyalty’, the question may legitimately be asked whether supporting a foreign team in a game of cricket be construed as expression of ‘indirect loyalty’? Under Section 20(1/C), the state reserves the right to terminate the citizenship granted to anyone other than those who acquires it by birth ‘if those concerned through their deeds and actions express disloyalty to Bangladesh’s sovereignty or Bangladesh’s constitution’. Again, what actions and deeds of expressions of disloyalty do the framers of the law have exactly in mind? The arbitrariness of the Section becomes more pronounced in the sub-section 20(1/D): that citizenship could be terminated ‘if information is available that a person had renounced his loyalty to Bangladesh’.
The law is riddled with such vague and imprecise terms and expressions. The ambiguities contained in the law are a definite recipe for disaster. On the one hand, it will give errant and politically motivated law enforcers massive leeway to harass the innocent; on the other, judges will face major hurdles in dispensing justice. It is worthwhile to recount a recent statement of the chief justice where he referred to difficulties that public face in securing justice and judges encounter in administering laws that are enacted in haste.
Another serious drawback of the proposed law is its refusal to acknowledge the independent identity of a child as a legal person. In several of its provisions children are made to suffer for the actions and misdeeds of their parents and/or forefathers. Under Section 4(2/C), a child born in Bangladesh is denied its citizenship if his or her father is deemed to be an ‘enemy alien’. In the same vein, under Section 5(3), a child is denied citizenship by descent if his or her father or mother has served in any military, auxiliary or special force that have taken part or took part in war against Bangladesh or deny the existence of Bangladesh or take part in any activity against Bangladesh. Such stipulation is reiterated in the provision that deals with acquiring citizenship through marriage. In this case, Section 11(3) extends the disqualification up to their grandparents. The section disqualifies a person to secure Bangladeshi citizenship through marriage ‘if his father, mother, grandfather or grandmother is engaged in war against Bangladesh or is a member of an alien enemy force’.
In addition to the above measures in denying citizenship to children through birth, descent and marriage for actions of their father/grandparents, under Section 19(2) a person’s under-aged child will stand to lose his/her citizenship if the person decides to renounce his or her citizenship.
The children of Bangladeshi expatriates are also liable not to secure their citizenship if their parents do not record their names with the Bangladesh mission concerned within the stipulated period of two years of their birth (Section 5 (2/a)). Making children liable for actions and deeds of their parents and grandparents is a gross infringement on the Convention on the Rights of the Child to which Bangladesh is a state party.
If the government goes ahead in framing the law in its current form, then there remains ample opportunity for many children to become stateless. Invoking penal provisions to make children liable for the actions of their ancestors on questionable grounds such as engaging in ‘anti-Bangladesh activities’, ‘denying the existence of Bangladesh’ and the like, and for expatriate Bangladeshi children for not being registered with Bangladesh missions within a stipulated period will render many children stateless. In addition, children born abroad of parents who are born after the commencement of the act, foundlings in Bangladesh territory, children born of migrant women workers who have been sexually exploited, children born out of wedlock and of those who may be deemed as ‘enemy alien’ also run the risk of becoming stateless.
Bangladesh’s lawmakers may well note that the Universal Declaration of Human Rights stipulates that ‘Everyone has the right to a nationality’ and ‘(n)o one shall be arbitrarily deprived of his nationality…’ (Article15/2). The right to nationality of a child has also been reiterated under Article 7 of the CRC and Article 24(3) of the International Covenant on Civil and Political Rights.
Contrary to established jurisprudence, the proposed citizenship law contains a provision that allows it to supersede judgements of courts and gives retrospective effect to offences committed before the law is framed. All these are contrary to the provisions of the constitution and international treaties that Bangladesh has ratified. The vagueness of the terms and phrases will only lead to its misapplication. Making children liable for the parents and grandparents’ actions and deeds is certainly unjust. If the legislators decide to enact the law as it stands, which in all probability they will, then certainly the proposed law is destined to be branded as an unjust and unfair law.

CR Abrar teaches international relations at the University of Dhaka.


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