The curious contents of the Citizenship Law

In early February, the Cabinet had given its final approval to the draft of the Citizenship Act, 2016. At a press briefing following the Cabinet decision, the concerned secretary stated that the proposed law consolidated the existing Citizenship Act 1951 and the Bangladesh Citizenship Temporary Provisions Order 1972, as those were "backdated" and "incomplete".

Surely, the government has the mandate to review existing laws and propose to the Parliament the enactment of new ones. However, at this time and age in a democratic dispensation, citizens have every right to expect that such a law making process is transparent and participatory, so that they get an opportunity to provide inputs in its framing. Unlike the Anti-trafficking Act, 2012 and the Migration Act of 2013, which were enacted by this government following a rigorous consultative process and public scrutiny, the Citizenship Law was a major disappointment. No civic consultation was organised, neither was the law made available in the public domain (such as by posting on the ministry website).

Although mainstream media highlighted the expanded ambit of the law for Bangladeshis to enjoy dual nationality, a close scrutiny finds that it has serious adverse implications for various categories of people. Ostensibly, it also breaches some fundamental principles of lawmaking. 

The Universal Declaration of Human Rights unequivocally states that "Everyone has the right to a nationality" and "No one shall be arbitrarily deprived of his nationality…" (Article15/2). In 2000, Bangladesh ratified the International Covenant on Civil and Political Rights. Article 24 (3) of the treaty stipulates, "Every child has the right to acquire a nationality". The right to nationality has also been reiterated under Article 7 in the most affirmed human rights document, the Convention on the Rights of the Child that Bangladesh ratified in 1991. 

After analysing various provisions of the citizenship law, jurists and rights activists are in agreement that ample scope will be created for increased statelessness for several categories of people. Included among them are children of Bangladeshi nationals living overseas who may not be registered within a stipulated time, children born abroad to parents who are born after the commencement of the Act, foundlings in Bangladesh territory, children born to migrant women workers who have been sexually exploited, children born out of wedlock, those who may be deemed as 'enemy aliens' and their children, the naturalised citizens who "express disobedience towards the sovereignty or the Constitution … through any action or behaviours", the unregistered dwellers of the recently exchanged enclaves and intriguingly, existing citizens whose both parents died before 1971. 

To elaborate, Prominence of the Law Article 3 states, "Notwithstanding anything contained in any other Act, legal instrument, judgment, decree etc. the provisions of this Act will prevail". This apparently innocuous provision has far-reaching consequences. Generally, a new law contains a provision that affirms its pre-eminence over existing legislations. However, superseding the judgments of courts has major ramifications. It will set a dangerous precedence of undermining the authority of the High Court. One would never be sure if a judgment of the court would be overridden by subsequent framing of laws. This provision portends ill for the much-celebrated notion of separation of power and independence of judiciary. 

Article 28/2/a of the Act states "Notwithstanding such repeal … citizenship of the persons who obtained citizenship under the repealed Acts shall prevail, subject to consistency with the provisions of this Act. All activities done under the Act shall be considered as legal". If the legislation is passed as proposed, it has the likelihood to override the 2008 judgment that re-affirmed Bangladeshi citizenship of the Urdu-speaking community. One wonders if one can find any parallel jurisprudential evidence anywhere else, where a community's citizenship status is made uncertain by a new law when the apex court of the land had already upheld their status once and for all. The retrospective element incorporated in the proposed law also has severe consequences for children born of one Bangladeshi parent, and nationals of SAARC countries and Myanmar who gained Bangladesh's citizenship by virtue of one of their parents being Bangladeshi. 

Under Article 5(3) a person will be denied citizenship by descent "if s/he or his/her father or mother joins any military or quasi-military or any special force and engages or engaged in war against Bangladesh or denied the existence of Bangladesh or is engaged in any activity against Bangladesh". This raises several issues of concern. 

Firstly, penalising people by providing retrospective effect to law is prohibited under the national and international laws. Article 35(1) of Bangladesh Constitution reads: "No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence… ". Likewise, Article 15 of ICCPR states, "No one shall be held guilty of any criminal offence on account of any omission which did not constitute a criminal offence, under national and international law, at the time when the criminal offence was committed". 

Secondly, this Article provides for punishment of children for offences committed by their parents. This is in gross contravention of the principle of natural justice. 

And thirdly, lack of definitive categorisation of what constitutes the 'denial of existence of Bangladesh' and 'anti-Bangladesh activity' would expose the law to subjective interpretation by those who hold the reins of power. Such broad sweep of offences is an open invitation to gross abuse. 

Thus, the Citizenship Law falls short of being a good law. Some of its provisions are not only contrary to the Constitution, international treaties that Bangladesh has ratified and the principle of natural justice, they are also discriminatory, unreasonable and non-enforceable. It's time the government takes a fresh look at the text before placing it before the National Parliament. 

The writer teaches International Relations at the University of Dhaka. He writes and researches on migration and rights issues.