Dual citizenship and conflict of law
Plural citizenship with citizenship rights is leading to globalization of different nationalities into a conception of plural-state with split loyalty. They are new crops of citizen. As traced in preceding chapters, citizenship is essentially a political right to run the state. Basic political right, on the risk of repetition, is the right of franchise to elect, and to be elected; to run the Government--executive, judiciary, and legislature--holding constitutional offices with a right to form political parties, and to propagate political views.
Dual nationality or citizenship was not permitted to a Bangladesh citizen till Article 2B was substituted by Ordinance VII of 1978 with effect from 11th February 1978, and was at the same time it was not permitted to a citizen or a national of any other country to have citizenship of Bangladesh unless he made a declaration according to the laws of that other country renouncing his status as citizen or national thereof, and in case of acquiring citizenship of other country a citizen of Bangladesh was to cease to be citizen of Bangladesh. This was on the principle of absolute loyalty to his domicile of origin, or the domicile by operation of law and the sovereignty. A citizen of Bangladesh will not be deprived of the right of citizenship, as provided by the amended law, if he acquires citizenship of any state of Europe or North America or of any other state which the Government may, by notification in the official Gazette, specify in this behalf. This is a right without any disqualification given to a Bangladesh citizen to acquire citizenship of states as notified in the Gazette notification.
Article 6 of the Constitution empowers Parliament to make laws with regard to citizenship as the citizenship of Bangladesh shall be determined and regulated by law. The law of citizenship is a constitutional law, which provides right of citizenship by birth, descent, registration, naturalization or incorporation of territory. It does not differentiate citizens on the basis of any classification of right- political or social.
In Bangladesh the legislations on citizenship are in a state of conflict. Article 66(2)(c) of the Constitution disqualifies a citizen for election as, or for being Member of Parliament who acquires the citizenship of, or affirms or acknowledges allegiance to, a foreign state. By Constitution (Fifteenth Amendment) Act, 2011, clause (3) as a proviso is inserted in Article 66 that if any person being a citizen of Bangladesh by birth acquires the citizenship of a foreign State and thereafter such person- (i) in the case of dual citizenship, gives up the foreign citizenship; or (ii) in other cases, again accepts the citizenship of Bangladesh- for the purpose of this article, he shall not be deemed to acquire the citizenship of a foreign State.1
There is a conflicting law that has given political right to dual citizens in Electoral Rolls (Amendments) Act, 2010 (Act No. LXIV of 2010). This legislation allows such citizens to be enrolled as voters. They have now political rights without giving up the foreign citizenship. The legislature has not put any embargo to the rights of the citizens who might have acquired citizenship of the specified states. The only constitutional bar is for parliamentary elections. Such citizens have now political rights of freedom of assembly, freedom of association, and freedom of thought under the Constitution of Bangladesh. Under the similar circumstances a dual citizen of Pakistan-Canada Tahirul Qadiri under his political party Awami Tahrik has emerged as a political force in Pakistan. He brought huge rallies in Islamabad on 15 January 2013, and demanded resignation of the Government in a 4-day demonstration. Was it an uprising or Pakistan Spring at the political thought of a person who has divided loyalty?
Before the Fifteenth Amendment to the Constitution a Division Bench of High Court Division in Md. Abdul Halim vs. The Speaker of Bangladesh Parliament and others, 21 BLD (HCD) (2001) 391 has held as follows:
Article 66(2)(c) should therefore be construed to mean that a citizen of Bangladesh is permitted to acquire a citizenship of a foreign state as provided under Article 2B(2) of the PO 149 of 1972. But if a person is found to be a citizen of Bangladesh as well as a citizen of any foreign state either on the date when he files nomination paper for the parliamentary election or if such person acquires citizenship of a foreign state after he was elected as a member of parliament, he becomes disqualified to contest the election or to continue as a member of the Parliament. Because a citizen of Bangladesh with total and indefeasible loyalty and patriotism is only considered fit and qualified for becoming a Member of Parliament. In other words, by the said disqualification clause in our Constitution, a person being a citizen of Bangladesh as well as a citizen of a foreign state is considered to have lost his absolute patriotism and loyalty to Bangladesh and thus becomes unfit to be a Member of Parliament. Reasons being that once such person is elected, he is normally given the charge of the helm of affairs of the country either in the capacity as a Member of the Parliament or as a Member of a Parliamentary committee or as a Minister or the Prime Minister of Bangladesh. The underlying purpose is to provide a clean and proper administration to the citizenry of Bangladesh.
It was not permitted to a citizen or a national of any other country to have citizenship of Bangladesh unless he made a declaration according to the laws of that other country renouncing his status as citizen or national thereof and in case of acquiring citizenship of other country a citizen of Bangladesh was to cease to be citizen of Bangladesh. After the amendment in 1978 allowing dual citizenship for the specified states it appears that Article 66 (2) (c) operates in conflict with the provision of dual citizenship as a citizen of dual nationality is not disqualified under the Constitution to have equality of opportunity in matters of public employment (Art 29); or to be a judge of the Supreme Court (Art 95); or to have right of associations or unions in the country (Art 38).
It appears that dual citizenship in Bangladesh has been provided at the cost of fidelity and sovereignty1 to the country. By the Electoral Rolls (Amendments) Act, 2010 (Act No. LXIV of 2010) effective from 20th December 2010 such citizens are entitled to be enrolled as voters. They have now political rights. A Bangladeshi national acquires citizenship of the specified countries after he denounces his loyalty to Bangladesh or put his loyalty in question. It is a question of sovereignty of his country of origin, which he denounces on oath and pledges his loyalty to another sovereign country. India has not allowed dual nationality of equal status to their former citizens by such ‘deeming’ conception and has evolved the concept of “overseas citizenship” of Indian origin with limited civil rights. They have no right to vote or right to occupy constitutional offices. In Bangladesh a person having dual nationality cannot be a Member of Parliament until he gives up foreign citizenship but there is no specific bar in the Constitution (Article 95) for such a person to be a judge of the Supreme Court, or to flout a political party (Article 38).By the recent amendment of the Electoral Rolls Act 2009 such citizens are entitled to be voters. This is a political law. Are we heading toward the principle of the Diaspora with political right to vote or right to occupy constitutional offices unlike India’s?
A Bangladeshi citizen after the expiry of naturalisation period of 5-year in the USA denounces his fidelity to Bangladesh, before he is admitted to citizenship of USA, in the following words of Oath of Allegiance, and salutes the Flag with the headgear removed while giving the Pledge:
The Pledge of Allegiance to the Flag: “I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all.” 1
The Oath of Allegiance: “I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform non-combatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely, without any mental reservation or purpose of evasion; so help me God.”
After he denounces his fidelity to the country of origin he gets in return a mini flag of USA in the ceremony of the Pledge and Oath. Pledge and Oath of Allegiance clearly spell out that United States has exclusive sovereignty over the newly naturalised US citizen. In other words as soon as the person who takes Oath of Allegiance he becomes an American citizen without any fidelity to his native country. The United States Government does not approve dual citizenship—it simply tolerates. This is the effects of the Afroyin’s and some other decisions of the US Supreme Court that have opened the way for a wide acceptance of multiple citizenships in US law.
A naturalized US citizen must present US passport and declare to be a US citizen when leaving or returning to the United States. When inside United States a naturalised citizen is a US citizen for all practical purposes and subject to US law. When in Bangladesh, a naturalised US citizen of Bangladeshi origin should always claim to be citizen of Bangladesh as our law permits them. While traveling one must carry passport of both USA and Bangladesh. Similar will be the position of a person having two or more nationalities of other countries.
But a State may not afford diplomatic protection to one of its nationals against a State whose nationality such person also possesses. Within a third State, a person having more than one nationality shall be treated as if he had only one. Without prejudice to the application of its law in matters of personal status and of any convention in force, a third State shall, of the nationalities which any such person possesses, recognize exclusively in its territory either the nationality of the country in which he is habitually and principally resident, or the nationality of the country with which in the circumstances he appears to be in fact most closely connected.1
An oath of citizenship is taken by immigrants to become citizen. It is a citizenship by naturalization. It is an expression of loyalty to the law and the constitution of the country and to the monarch of the country, if any. In some countries, a pledge is taken by a new citizen, as opposed to an oath. In some countries both are required e.g., USA and United Kingdom. Pledge of Allegiance is to the Flag of the United States of America, oath that proclaims loyalty to the United States and its national symbol. In most of the countries they do not require denouncement of fidelity to the place of origin except USA.
In Pakistan dual citizenship or nationality is not permitted under section 14(1) of the Citizenship Act, 1951 as amended but there is an exception to it under section 14 (3) of the Act that nothing in sub-section (1) shall apply, or shall be deemed ever to have applied at any stage, to a person who being, or having at anytime been, a citizen of Pakistan, is also the citizen of the United Kingdom and Colonies or of such other country as the Federal Government may, by notification in the official Gazette, specify in this behalf. There is further exception in sub-section (4) for a female citizen of Pakistan married to a person who is not a citizen of Pakistan. A female citizen of Pakistan marrying a foreigner can continue to retain Pakistan citizenship of her husband.
Pakistan Supreme Court in Syed Mehmood Akhtar Rizvi vs. Federation of Pakistan through Secretary Law and others (Constitution Petition No. 5 of 2012) has disqualified as many as eleven members of National and Provincial Assemblies for having dual citizenships of US and Britain under Article 63 (1)(c) read with Article 113 of the Constitution of Pakistan. While concurring with the lead judgment Jawwad S. Khawaja, J., in a separate judgment has given the reasons of the debarring provisions as follows:
Parliamentarians, while acting as trustees and the chosen representatives of the people, take decisions [,] which are often of grave consequence for the protection of the economic, political and overall national interests of Pakistan. In other words theirs is a fiduciary duty of the highest order….It is well settled that the foremost obligation of fiduciary is to show complete loyalty to the principal and to scrupulously avoid situations [,] which may create a conflict of interest in the performance of such duty….It should be obvious that holding dual citizenship is likely to create situations for the holder where he faces a conflict of interest in the discharge of fiduciary duty to the people of Pakistan….
A question was raised whether the same analogy would apply to other Constitutional posts like the President, Governors, Chief of Army Staff, Judges of the superior Courts and Auditor General as no disqualification has been provided for them in the Constitution. The Court in its lead judgment delivered by Khilji Arif Hussain, J., has replied as follows:
Since this issue is not before us, we are not expressing our opinion on it except to say that in terms of Article 41(2) of the Constitution only a person who qualified to be elected as a Member of the National Assembly can be elected as a President in accordance with provision of 2nd Schedule by the members of the electoral college consisting of members of both the houses and the members of the Provincial Assemblies and that it is for the Legislature to decide, whether to amend the Constitution/Law if they in their wisdom decided that on the other constitutional posts, persons holding citizenship of a foreign state are not qualified to hold such posts.
In India there is a bar under Article 9 of the Constitution that no person shall be a citizen of India by virtue of Article 5, or be deemed to be a citizen of India by virtue of Article 6 or Article 8, if he has voluntary acquired the citizenship of any foreign state. A person is also disqualified for membership of either House of Parliament under Article 102 (d) if he has voluntary acquired the citizenship of a foreign state, or is under any acknowledgment of allegiance or adherence to a foreign state.
India by Act 6 of 2004, section 7 (w.e.f. 3.12.2004) has, however, incorporated sections 7A and 7B in the Citizenship Act, 1955 creating ‘overseas citizenship’ for a citizen of another country, but was a citizen of India at the time of, or at any time after the commencement of the Constitution. They are entitled to (a) grant of multiple entry lifelong visa for visiting India for any purpose; (b) exemption from registration with Foreign Regional Registration Officer or Foreign Registration Officer for any length of stay in India; and (c) parity with non-resident Indians in respect of all facilities available to them in economic, financial and educational fields except in matters relating to the acquisition of agricultural or plantation properties. An ‘overseas citizen’ of India is not entitled under section 7B to have equality of opportunity in matters of public employment (Art 16); or to be a President or Vice-President of the Union (Art 58 & Art 66); or to be a judge of the Supreme Court or a High Court (Art 124 & Art 217). There are other disabilities as well under the Representation of the People Act, 1950 in regard to registration as a voter, eligibility for being a member of the House of the People or of the Council of States, or member of the Legislative Council, or for appointment to public services and posts except for appointment in such services and posts as the Central Government may by special order in that behalf specify. They have no political rights to hold constitutional offices.
Indian legislature appears to have brought the Roman concept of ‘Latin Rights’ or in Latin: Jus latii, Latinitas or jus latinum in the law of citizenship.
This was a civic status given by the Romans, intermediate between full Roman citizenship and non-citizen status, known as peregrinus, and extended originally to the people of Latium (the Latini). The most important ‘Latin Rights’ were commercium, connubium, and migrationis. Commercium allowed Latins to own land in any of the Latin cities and to make legally enforce contracts with their citizens. Connubium permitted them to make a lawful marriage with a resident of any other Latin city. Migrationis gave people with Latin status the capacity to acquire another citizenship of another Latin state simply by taking up permanent residence there. People with the ‘Latin Right’ were protected under Roman law. The ‘Latin Right’ was an intermediate steps in obtaining full-fledged Roman citizenship. In the days of the Republic, those holding the ‘Latin Right’ had most of the liberties of citizens except the right to vote. Furthermore, only citizens could run for office in Rome and serve in the Roman Army.1 They had no political rights.
In other words ‘overseas citizens’ of India have no political rights but they have civil rights as if they have not lost their domicile of origin.2