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)
illegal. They were unsuccessful, however, in establishing that the sons had a right to
citizenship through their mother's citizenship. The Court agreed with the respondents
that there was no ambiguity in the use <strong>of</strong> the words “father” and “grandfather” in the
Citizenship Act 1951. The equality provision relied upon by the petitioners merely
states that all citizens are equal in the eyes <strong>of</strong> the law. The Constitution defines
a citizen as “a Bangladesh person who is a citizen according to the law” and the
Citizenship Act 1951 provides the authority on who can be a citizen. The petitioners'
argument, according to the Court therefore had no substance.
Commentary
The judgment denies female citizens <strong>of</strong> Bangladesh the right to transfer citizenship
to their children. The Court refused to accept the argument that the Citizenship Act
1951, by recognising only male lineage, violates a fundamental right to equality. The
Court interpreted the Constitution narrowly, finding that the meaning <strong>of</strong> citizenship
should be guided by the relevant laws on citizenship rather than in light <strong>of</strong> the
equality provisions <strong>of</strong> the Constitution. The Court also accepted as relevant, a ruling
which preceded the Constitution and the ratification <strong>of</strong> CEDAW, that minors cannot
acquire domicile different to that <strong>of</strong> their father.
The Court appointed three senior lawyers as amicus curiae to provide their opinions
on the relevant issues. Two <strong>of</strong> the three lawyers provided conservative opinions
that did not promote the interests <strong>of</strong> women in Bangladesh. They submitted that
the children could not claim citizenship under the Citizenship Act 1951. Further,
although the petitioners’ lawyers referred to CEDAW in their argument, the Court
evaded the issue <strong>of</strong> the obligation <strong>of</strong> the State as a party to the Convention to observe
its provisions. The Court also overlooked the submission <strong>of</strong> the third amicus curiae
who challenged the constitutionality <strong>of</strong> the Citizenship Act 1951 and other laws in
question and also raised the issue <strong>of</strong> a woman’s right to transmit nationality.
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