e_Paper (23 December 2016)

No place to call home
Opinion 21
A law that stands in the way of human rights cannot be allowed to pass
DT
FRIDAY, DECEMBER 23, 2016
• Rashna Imam
Citizenship has been aptly
described as “the right to
have rights.” It not only
provides a person with a
sense of identity and belonging,
but also full state protection in
the form of access to and the
enjoyment of many human rights
-- including education, health
care, legal employment, property
ownership, political participation,
and freedom of movement.
Part of the Constitution
guarantees citizens of Bangladesh
all the fundamental rights
contained in it. Only a limited set
of fundamental rights have been
guaranteed to persons who are not
citizens of Bangladesh.
As such, it does not come
as a surprise that a number of
widely-ratified human rights
treaties have recognised the
fundamental importance of the
right to citizenship. The Universal
Declaration of Human Rights,
which Bangladesh has ratified,
states, in unequivocal terms,
in Article 15: “Everyone has the
right to a nationality. No one
shall be arbitrarily deprived of his
nationality nor denied the right to
change his nationality.”
Citizenship laws of member
states are required to ensure that
individuals are not arbitrarily
deprived of their citizenship, that
men and women enjoy equality
in citizenship matters, and that
children are granted a nationality
in circumstances in which they
would otherwise be stateless.
The objective behind the
proposed Citizenship Bill should
have been two-fold.
First, to update, improve, and
consolidate the existing laws
on citizenship, currently spread
across the Citizenship Act, 1951
and the Bangladesh Citizenship
Order (Temporary Provisions)
Order, 1972 -- and the rules
framed under it. And secondly,
to reform our citizenship laws to
prevent new cases of statelessness
and to resolve long-standing
statelessness situations, thus
discharging our international
obligations in this regard.
Unfortunately, the bill, as it now
stands, is unlikely to serve any of
the above objectives.
To make matters worse, some
of its provisions are downright
unconstitutional for violating the
fundamental rights guaranteed
under the Constitution. Civil
society organisations like Refugee
and Migratory Movements
Research Unit (RMMRU) and
BLAST have organised a number
of workshops to raise awareness
about the glaring deficiencies of
the bill.
A number of the provisions
are susceptible to abuse by the
government of the day as critical
words and phrases have not been
defined or explained. For example,
a person will not be qualified to
acquire citizenship by descent, if
his or her parents were involved in
“any activity against Bangladesh,”
-- a phrase that has not been
defined in the bill.
A person may be disqualified
for citizenship if he expresses
“direct or indirect allegiance to a
foreign state” -- again a phrase that
has not been defined despite being
of great import; and a person’s
citizenship may be cancelled if he
acts in a manner that goes against
the sovereignty of Bangladesh or
the Constitution of Bangladesh.
The bill provides no guidance as
to the activities that are likely to be
considered against Bangladesh’s
sovereignty or its Constitution.
The bill has the potential
to render several categories
Fundamental flaws in the proposed Citizenship Bill can rob many of basic human rights
There is still time as the bill is yet to become law, but the clock is ticking.
The next parliamentary session is around the corner. The government
must be put under pressure to bring the draft in line with Bangladesh’s
international obligations and the Constitution
of people stateless, including
unregistered dwellers of recently
exchanged enclaves, children born
overseas to Bangladeshi nationals
living overseas who may not be
registered within the short timeframe,
illegal immigrants, etc.
Thus adding to the global
problem of statelessness.
The bill renders minor children
stateless by disqualifying them
from citizenship, if their parents
have renounced Bangladeshi
citizenship. There being no
guarantee that the country
whose citizenship the parents are
acquiring confer citizenship of the
child.
India has effectively dealt with
this issue -- a parallel provision in
the Citizenship Act 1955 of India
gives that child the option to
resume Indian citizenship within
one year of attaining full age, if
he/she wishes to do so. We see no
such provision in our bill.
The bill discriminates between
citizens by birth and all other types
of citizens, thus creating secondclass
citizens who do not enjoy
the full set of rights conferred to
citizens by birth. Persons acquiring
citizenship by descent, marriage,
and naturalisation, honorary
citizens and dual citizens cannot
be elected for the positions of
member of parliament, president,
local government and also cannot
be appointed as a government
servant or a judge and cannot
form or be involved in or support a
political party.
This is contrary to Article 27 of
the Constitution that guarantees
that all citizens are equal before
the law and are entitled to equal
protection of the law. Once a
person has acquired citizenship
under the bill, the Constitution
demands that he or she be given
the same set of rights as any other
citizen, irrespective of whether the
citizenship was acquired by birth
or descent or naturalisation.
The bill fails to recognise
children as individuals with
personal rights, holds children
accountable for actions of their
parents by depriving them of
citizenship -- thus exposing them
to human rights violations. Having
ratified the Convention on the
Rights of the Child, Bangladesh is
under an international obligation
to reform its laws to ensure these
rights and more to children.
Problems aside, the
bill, if enacted as it stands,
represents an opportunity lost.
Illegal immigrants like the
Rohingyas have been excluded
unconditionally from citizenship.
Lessons may be learned in
this regard from India -- the
Citizenship Amendment Bill
2016 that amends the Citizenship
Act 1955 of India, makes illegal
migrants who are Hindus, Sikhs,
Buddhists, Jains, Parsis, and
Christians from Afghanistan,
Bangladesh, and Pakistan, eligible
for citizenship.
While the constitutionality of
such a provision that makes illegal
migrants eligible for citizenship
on the basis of religion may be
questioned for violating the right
BIGSTOCK
to equality, the bill at least offers
a legalisation mechanism for
illegal immigrants. We see no such
mechanism in our bill.
A mechanism could have
easily been carved out in the bill
to legalise illegal immigrants in
phases, beginning with temporary
work and residence rights, moving
to permanent residency for
workers who meet requirements,
etc.
A prolonged and rigorous
pre-legislative scrutiny of the bill
would have probably addressed
these deficiencies or at least
highlighted them on time.
Unfortunately, the bill was neither
published in the Law Ministry’s
website for wider public scrutiny
nor highlighted by the media.
Nevertheless, there is still time
as the bill is yet to become law,
but the clock is ticking. The next
parliamentary session is around
the corner. The government must
be put under pressure to bring the
draft in line with Bangladesh’s
international obligations and the
Constitution.
Needless to say, the media can
play a critical role in this regard,
and if, by dint of public apathy,
the bill is placed before the
parliament, as it is, one can only
hope that the good sense of our
parliamentarians will prevail. •
Rashna Imam, an Oxford Scholar, is
a practicing Barrister of the Supreme
Court of Bangladesh and the Managing
Partner of Akhtar Imam & Associates.