A Digest of Case Law on the Human Rights of Women - Asia Pacific ...

Sayeeda Rahman Malkani and others v Government <strong>of</strong> Bangladesh and others (Bangladesh)
the cancellation <strong>of</strong> the endorsement <strong>of</strong> the names <strong>of</strong> her two sons in her passport was
unlawful. She also sought a declaration that her sons were entitled to Bangladeshi
citizenship on the basis <strong>of</strong> her own citizenship.
The petitioners argued that the statutory provisions <strong>of</strong> the Citizenship Act 1951, which
state that a female who marries a foreigner cannot raise her children as Bangladeshi
citizens, are contrary to Articles 27 and 28 <strong>of</strong> the Constitution. The Articles state
that “all citizens are equal before the law”, that “the State shall not discriminate
against any citizen on grounds only <strong>of</strong> religion, race, sex or place <strong>of</strong> birth” and that
“women shall have equal rights with men in all spheres <strong>of</strong> the State and Public life”.
They argued therefore that the cancellation <strong>of</strong> the endorsement <strong>of</strong> Sayeeda Rahman
Malkani’s sons from her passport was unlawful.
The petitioners also argued that section 13(1) <strong>of</strong> the General Clauses Act 1897,
which states that, “in all Acts <strong>of</strong> Parliament and regulations unless there is anything
repugnant in the subject or context words importing the masculine gender shall be
taken to include females,” should be applied. On the basis <strong>of</strong> this section, she argued,
the word "father" in the Citizenship Act 1951 should be taken to include mother. They
further argued that if the term "father" does not include mother then the laws on
citizenship violate CEDAW, which obliges State parties to eliminate discrimination
against women in relation to acquiring, changing or transmitting nationality.
The respondents argued that Article 6(1) <strong>of</strong> the Constitution provides that the
citizenship <strong>of</strong> Bangladesh shall be determined and regulated by law. Therefore
the citizenship <strong>of</strong> her two sons must be determined by the Bangladesh Citizenship
(Temporary Provisions) Order 1972 and the Citizenship Act 1951. The provisions
in both Acts state that a Bangladeshi citizen is one who himself, or his father or
grandfather, was a permanent resident <strong>of</strong> the territories as comprised in Bangladesh
on 25 March 1971. The respondents argued that the husband <strong>of</strong> Sayeeda Rahman
Malkani was not a citizen, nor a permanent resident <strong>of</strong> Bangladesh on 25 March 1971
and consequently her two sons could not claim citizenship.
Finally, two <strong>of</strong> the three amicus-curiae (“friends <strong>of</strong> the court”) appointed by the
Court to give their opinions on the relevant issues, argued that the General Clauses
Act 1897 only applied to situations <strong>of</strong> ambiguity and that there was no ambiguity in
the use <strong>of</strong> “father” in the Citizenship Act 1951.
Decision
The Court found in favour <strong>of</strong> the petitioners regarding the cancellation <strong>of</strong> the
endorsement. The Court held that Sayeeda Rahman Malkani was the natural guardian
<strong>of</strong> her minor sons, and their names had been legally endorsed in her passport. The
cancellation <strong>of</strong> the endorsement by the Bangladesh Embassy in Paris was therefore
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