Bangladesh (Appellant)
Vs.
Professor Golam Azam and others(Respondents)
Supreme Court
Appellate Division
(Civil)
JUSTICE
M Habibur Rahman J
ATM Afzal J
Mustafa Kamal J
Latifur Rahman J
Judgment dated : June 22, 1994.
Lawyers Involved:
Aminul Huq, Attorney?General, (AF Hasan Ariff, Deputy Attorney-General, and B Hossain, Deputy Attorney – General with him) instructed by Sharifuddin Chaklader, Advocate-on- Record -For the Appellant.
AR Yusuf, Senior Advocate, instructed by Md. Nowab Ali, Advocate-on-Record-For the Respondent No. 1.
Not Represented -Respondent Nos. 2 & 3.
Civil Appeal No. 58 of 1993
(From the judgment and order dated April 22, 1993 passed by the High Court Division in Writ Petition No. 1316 of 1992)
JUDGEMENT
MH Rahman J.- This appeal by special leave at the instance of the Government is directed against the judgment and order dated April 22, 1993 of the High Court Division passed in Writ Petition No. 1316 of 1992. Profession Golam Azam, hereinafter referred to as the respondent, instituted that writ petition. The High Court Division upheld his contentions that Notification No. 403?Imn/III dated Dhaka April 18, 1973, so far as it related to him and the show cause Notice No. HH: MA(Bhai-l)/134 dated March 23, 1992 of the Ministry of Home Affairs served on him were without lawful authority.
2. The material portion of the notification reads as follows:
“Whereas it appears that the persons specified below have been staying abroad since before the liberation of Bangladesh and by their conduct cannot be deemed to be citizens of Bangladesh:
And whereas the said persons have continued to be citizens of Pakistan:
Now, therefore, the Government declares under Article 3 of the Bangladesh Citizenship (Temporary Provisions) Order 1972 (President’s Order 149 of 1972), that the persons specified below do not qualify themselves to be the citizens of Bangladesh …………………..”
Thirty-nine persons were mentioned in the notification. The respondent’s name was at serial No. 3: “Professor Golam Azam, s/o. Golam Kabir of Birgaon, Police Station Nabinagar, District Comilla and of Elephant Road, Maghbazar, Dhaka.”
3. The respondent claims that his father, grand-father and he himself were all born in this country. He became the Ameer, President, of the Jamaat-e-Islami of the then East Pakistan in 1969. He was a permanent resident in Bangladesh on March 25, 1971 and he continued to be so resident on 22 November 1971 when he went to Lahore for attending his party’s Central Working Committee meeting. As the war broke out between India and Pakistan he wanted to come back home. On December 3, 1971 the plane in which he was returning to Dhaka was diverted at first to Colombo, and then to Jeddah. After a few days the respondent was sent back to Karachi along with other passengers. He had to remain in Pakistan against his will for some months as the Government of Pakistan did not allow any Bangladeshi citizen to leave Pakistan. For making contact with his family he tried to go to London in March, 1972, but he failed to obtain any travel document. He arranged a Pakistani passport for going to Saudi Arabia for performing Hajj in December, 1972. During Hajj he came to know from fellow-pilgrims from Bangladesh that a political mispropaganda was running high in Bangladesh against him because of his party’s opposition to the Awami League, the party in power in Bangladesh, and if he went back home his life would be in danger. In the first week of April, 1973 he went to London. From a copy of the Bangladesh Observer he came to know about the Notification dated 18 April 1973. No prior notice was served on him. On January 17, 1976 the Government invited applications from those persons whose citizenship had been cancelled by the previous Government for restoration of their citizenship. From 20 May 1976 the respondent sent several applications to the Secretary, Ministry of Home Affairs, the Chief Martial Law Administrator and the President, but without any result. On 11 March 1978 the Government turned down his mother’s application to restore his citizenship, but he was allowed to come to Bangladesh on 11 July 1978 to see his ailing mother with a visa for three months. His visa was extended twice. For avoiding a possible deportation, on 8 November 1978 he filed an application for restoration of his citizenship to the Ministry of Home Affairs and surrendered his Pakistani passport. On 27 May 1980 the Minister of Home Affairs informed Parliament that the respondent’s application for restoration of citizenship was pending for decision of the Government. On being asked by the Immigration Section of the Ministry of Home Affairs the respondent submitted on 30 April 1981 an affidavit with an oath of allegiance to Bangladesh. His name was included in the voters’ list in 1983 and also in 1990. As late as 12 January 1992 the Home Minister informed Parliament that on 9 November 1978 the respondent sought permission to stay in the country till a decision was taken on his citizenship and that no such decision had yet been taken. Suddenly on 23 March 1992 at 3?00 AM the respondent was served with a notice to show cause by 10.00 AM on the same day as to why be, being a foreigner and disqualified to be a citizen of Bangladesh by the Notification dated April 18, 1973, should not be deported from Bangladesh for becoming the Ameer of Jamaat-e-Islami of Bangladesh, violating Article 38 of the Constitution. In his reply the respondent asserted his right as a citizen of Bangladesh and requested for a personal hearing. He was, however, arrested and detained at the Dhaka Central Jail by an order of detention dated 24 March 1992 under section 3 of the Foreigner’s Act, 1946.
4. The case of the government, the appellant before us, is that the respondent had been staying abroad since before liberation of Bangladesh as a citizen of Pakistan; that for his anti-liberation role and active collaboration with the Pakistan Army in raising irregular forces like the Rajakers, Al-Badrs and Al?Shams and placing his party, the Jamaat-e-Islami, at the disposal of the Pakistani Army, and because of his conduct during and after the liberation war, and his voluntarily residing in Pakistan as a citizen of Pakistan he could not be deemed to be a citizen of Bangladesh. The Rajakars, the armed wing of the respondent’s party, were engaged in arson, looting and rape and other genocidal activities. The respondent was himself associated with the Pakistani Army Officers. A photograph, published in Dainik Purba Desh on April 6, 1971 showed him sitting with General Tikka Khan. The respondent took advantage of the Hajj congregation in Saudi Arabia to orchestrate his anti?Bangladeshi activities. He lobbied actively to dissuade the Muslim countries from giving recognition to Bangladesh. In 1972 he organised a campaign throughout Pakistan so that Bangladesh might not be recognised as an independent State. In the same year he attended an Islamic Youth Conference in Riyadh where he made an appeal for liberating and recapturing East Pakistan and organised a Committee for recapturing East Pakistan in London. In 1973 he went to Bengazi, Libya where the Conference of the Foreign Ministers of the Islamic World was held and made an appeal there not to recognise Bangladesh as an independent State. From 1973 to 1976 the respondent met the King of Saudi Arabia several times and prevailed upon him not to recognise Bangladesh or give any assistance to her. On 23 March 1992 he was lawfully asked to show cause why he should not be externed from Bangladesh and why other legal actions should not be taken against him.
5. In his affidavit?in?reply the respondent reiterated his assertions made in his writ petition and gave a denial to all the material allegations made in the Government’s affidavit?in ?opposition. The Jamaat?e?Islami had nothing to do with the Razakars, Al?Badr or Al?Shams. The respondent did not make any campaign against Bangladesh nor did he try to dissuade other Muslim countries or the King of Saudi Arabia from giving recognition to Bangladesh. He did not organise any organisation like the East Pakistan Recovery Committee in Lahore or in London. He used the Pakistani passport as a travel document and at the earliest opportune time he surrendered that passport to the Government and also affirmed his allegiance to Bangladesh by an affidavit.
6. In the High Court Division the matter was at first heard by a Division Bench comprising Mohammad Ismailuddin Sarkar and Badrul Islam Chowdhury, JJ. Because of difference of opinion the matter was referred by the learned Chief Justice to Anwarul Haq Chowdhury J. The latter agreed with the opinion of Badrul Islam Chowdhury J and declared the notification and the show cause notice to have been made without lawful authority. By the impugned judgment the High Court Division upheld the respondent’s contentions that he was born in this country and that he was a permanent resident on the midnight of 25/26 March 1971 and that or the period of his being stranded in Pakistan he was to be deemed to be a permanent resident under the proviso to Article 2; that the allegations that the respondent’s indulged in anti-Bangladesh activities were irrelevant; that the notification was bad for violation of principle of natural justice; and that the respondent’ writ petition was not bad for laches and delay.
7. The term “citizen”, derived from the Latin word “civis” is no longer understood in the narrow sense of earlier times as an inhabitant of a city or a freeman having a family in a city or as the representative of a city in parliament. By citizen we mean a person who is a member of an independent political community having rights and obligations under the Constitution and law of the country. What sovereignty is to a State, citizenship is to a person. Sovereignty gives a State membership in the family of nations. Citizenship gives a person membership in the political community of his country. Further, it indicates a two-way relationship of allegiance and protection between an individual and his country. Citizenship, the status of being a citizen, is a term of municipal law. Nationality, the status of being a national, is a term of international law. The terms ‘citizenship’ and ‘nationality’ are often used interchangeably.
8. Our Constitution, although repeatedly using the term citizen, did not define Bangladesh citizenship. Citizenship, though not mentioned as a fundamental right in our Constitution, is to be considered as the right of all rights as on it depends one’s right to fundamental rights expressly provided for a citizenship in Part III of the Constitution and his right to seek Court’s protection of those rights. As per Article 152 of the Constitution “citizen” means” a person who is a citizen of Bangladesh according to the law relating to citizenship (.)” Article 6 of the Constitution provides that the citizenship of Bangladesh shall be determined and regulated by law. Article 21(1) of our Constitution provides:” It is the duty of every citizen to observe the Constitution and the laws, to maintain discipline, to perform public duties and to protect public property.”
9. Citizenship may be acquired by birth or by naturalisation. A person who is deemed to be a citizen of Bangladesh under Article 2 is not required to take any oath of allegiance unless he is elected or appointed to any office mentioned in the Third Schedule of the Constitution. A naturalised citizen is, however, required to take oath of allegiance to the Constitution of the People’s Republic of Bangladesh. To meet the requirements of the new situation that emerged out of the independence of Bangladesh Presidents Order 149 of 1972 was brought into existence on 15 December 1972; one day before the commencement of the Constitution so that it might get the constitutional protection of an existing law. That legislation bears marks of hurried drafting. It has undergone several amendments. At present, law of citizenship is governed by two legislations the Citizenship Act, 195 1, continued as an existing law by President’s Order No. 48 of 1972, but not yet revised for printing in the statute book, and the Bangladesh Citizenship (Temporary Provisions) Order 1972 (Presidents Order 149 of 1972). The instant case is governed by President’s Order 149 of 1972. That law came into force on 15 December 1972 but it was given effect from 26 March 197 1. Relevant articles of President’s Order No. 149 of 1972 read as follows:
“2. Notwithstanding anything contained in any other law, on the commencement of this Order, every person shall be deemed to be a citizen of Bangladesh.
(i) who or whose father or grandfather was born in the territories now comprised in Bangladesh and who was permanent resident of such territories on the 25th day of March 1971 and continues to be so resident; or
(ii) who was a permanent resident of the territories now comprised in Bangladesh on the 25th day of March, 1971, and continues to be so resident and is not otherwise disqualified for being a citizen by or under any law for the time being in force:
Provided that if any person is a permanent resident of the territories now comprised in Bangladesh or his dependent is, in the course of his employment or for the pursuit of his studies, residing in a country, which was at war with, or engaged in military operations against Bangladesh and is being prevented from returning to Bangladesh, such person, or his dependents, shall be deemed to continue to be resident in Bangladesh.
2A. A person to whom Article 2 would have ordinarily applied but for his residence in the United Kingdom shall be deemed to continue to be permanent resident in Bangladesh:
Provided that the Government may notify, in the Official Gazette, any person or categories of persons to whom this Article shall not apply.
2B. (1) Notwithstanding anything contained in Article 2 or in any other law for the time being in force, a person shall not, except as provided in clause (2), qualify himself to be a citizen of Bangladesh if he-
(i) owes, affirms or acknowledges, expressly or by conduct, allegiance to a foreign state, or
(ii) is notified under the proviso to Article 2A:
Provided that citizen of Bangladesh shall not, merely by reason of being a citizen or acquiring citizenship of a state specified in or under clause (2), cease to be a citizen of Bangladesh.
(2) The Government may grant citizenship of Bangladesh to any person who is a citizen 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.
3. In case of doubt as to whether a person is qualified to be deemed to be a citizen of Bangladesh under Article 2 of this Order, the question shall be decided by the Government which decision shall be final.”
10. In this case we need not enquire into the meaning of the term ‘decision’ or to the question what makes a decision judicial or quasi-judicial or whether a lis was to be decided by the notification. The judicial review available in our Constitution is quite wide and free from the ill?suited straight-jackets of English common law prerogative writs like certiorari. All actions or decisions, administrative or quasi?judicial are amenable to judicial review under Article 102 of the Constitution subject to the limitations provided in that Article. The respondent’s writ petition was no doubt maintainable. Before the High Court Division the appellant submitted that the respondents writ petition, filed long 20 years after the impugned notification ought to have been rejected in limine. Relying on Tilok Chand Vs. HB Munshi 1969 SCR (2) 824, Ram Chandra Shankar Deodhar Vs. State of Maharashtra 1974 SCC 317 and Shafiqur Rahman Vs. Certificate Officer, Dhaka in 29 DLR (SC) 232 the High Court Division rejected that contention.
11. The remedy of judicial review under Article 102 of the Constitution is not governed by any law of limitation. This is an extraordinary remedy and should be sought with all possible expedition. The Court should not allow its docket to be choked with stale matters, otherwise the whole process of adjudication will adversely be affected. The Court is to balance the interests of the party or parties affected by a decision, and public interests. In considering the question of delay the court will consider whether the relief granted would be likely to cause substantial hardship or prejudice the rights of any other person or would cause real harm to or dislocation in the administration. The circumstances of each case, the context, the type of error and the reasons for delay like pursuing a legal remedy or taking necessary steps before coming to Court are to be considered. In the instant case no one will be prejudiced. The respondent contends that when he was enjoying all his rights as a citizen and the government was giving assurances that the question of his citizenship was under consideration he advisedly did not rush, to the Court. The show cause notice dated 23 March 1992 was the last straw and he immediately thereafter came to the Court. In the facts of the case the High Court Division correctly refused to dismiss the matter on the ground of delay.
12. The learned Attorney?General submits the High Court Division misinterpreted the provisions of Article 2, in determining the respondent’s permanent residence on the commencement of President’s Order 149 of 1972 and in applying proviso to Article 2 to the case of the respondent. Let me dispose of these two points first.
13. Commencement of an Act and its coming into effect are not the same thing. Sub?section (3) of section 5 of the General Clauses Act, 1897 clearly indicates that there is a distinction between an Act coming into effect and the commencement of the Act. For commencement of an Act there can only be one date. An Act may come into effect as a whole or in part on the day of its commencement, or it may be given, as a whole or in part, a retrospective effect from a date earlier than the date of commencement. Even where the Act is given retrospective operation the significance of the date of commencement of that law will be relevant for several reasons. From the date of its commencement that an Act will find a place on the statute?book of the country. In the instant case provision of Article 2 clearly provides that the date of the commencement of the Order will be the terminus a quo for determination of citizenship. In Bishal Deo Tewari Vs. State 27 DLR 6.13 and in Abdul Haque Vs. Bangladesh 33 DLR 113 the date of coming into effect of President’s Order 149 of 1972 was wrongly regarded as the relevant date for determination of the continuance of permanent residence. The High Court Division relying on these decisions wrongly held that 25/26 March of 1971 was the terminal point and as the respondent touched both the points he should be deemed to be a citizen of Bangladesh. The respondent was admittedly born in this country and a permanent resident on 25 March 1971. For determining his citizenship under Article 2 the question will be whether he continued to be so resident on 15 December 1972, the date of the commencement of President’s Order 149 of 1972. The respondent’s contention. that for his residence in United Kingdom on 18 April 1973 he should be deemed to continue a permanent resident in Bangladesh under Article 2A must be rejected because the deeming provision under Article 2 is to be examined with reference to 15 December 1972, the date of commencement of President’s Order No. 149 of 1972, when the respondent was not residing in the United Kingdom.
14. In upholding the respondent’s contention that proviso to Article 2 is available to him the High Court Division relied on two observations of this court: (i) the one in para 4 of the People’s Republic of Bangladesh Vs. Abdul Haque 1982 BLD (AD) 143, and (ii) the other in para 22 of the Government of Bangladesh Vs. MS Ispahani 40 DLR (AD) 116. In the facts of both the cases there was no averment that the aggrieved person was staying in Pakistan in the course of his employment or for his studies. For attracting the proviso to Article 2 a permanent resident in Bangladesh or his dependent is required to fulfill two requirements (i) that he was residing in the other country in course of his employment or for the pursuit of his studies, and (ii) is prevented from returning to Bangladesh. The legal fiction as to continuance of residence in Bangladesh as provided in proviso to Article 2 must he limited to the purpose for which it is created and should be strictly construed and should not be extended in the name of beneficial construction beyond its context, I uphold the appellant’s contention that the respondents staying in Pakistan on and from November 1971 was neither for his studies nor for his employment and as such the proviso to Article 2 of President’s Order 149 No. 1972 is not available to him.
15. Where the proviso to Article 2 is attracted a citizen will not be required to explain further his case for staying abroad. That provision of law will not, however, preclude a citizen from explaining his staying abroad on other good reasons. For example, from December 1971 to September 1973, due to snapping of all communications between Bangladesh and Pakistan and because of non?recognition of Bangladesh by Pakistan, hundreds of Bengali citizens were stranded in Pakistan. On 17 April 1974 Bangladesh and India “jointly proposed that in the larger interests of reconciliation, peace and stability in the sub?continent the problem of the detained and stranded persons should be resolved on humanitarian considerations through simultaneous repatriation of all such persons except those Pakistani prisoners of war who might be required by the Government of Bangladesh for trial on certain charges”. As per the Delhi Agreement dated 28 August 1973 between India and Pakistan and with the concurrence of Bangladesh a three way repatriation commenced on 19 September 1973. With regard to the atrocities and destruction committed in Bangladesh in 1971, he Prime Minister of Bangladesh had already declared that he “wanted the people to forget the past an to make a fresh start …………(.)”. The respondent’s contention that he was stranded in Pakistan till he left for England cannot be brushed aside.
16. The appellant contends that as the notification did neither deprive nor take away any vested right of the respondent and only notified his inherent lack of eligibility to be deemed to be a citizen of Bangladesh there had been no procedural defect in issuance of the notification for not serving a prior show cause notice on the respondent, then not residing in Bangladesh.
17. In support of his contention that the impugned notification was bad for violation of the principle of audi alteram partem the respondent relied on a number of decisions before the High Court Division R Vs. University of Cambridge (1723)] Sir. 557; Ridge Vs. Baldwin 1963 (2) All England Reports 66; Commissioner of Income?tax, East Pakistan Vs. Fazlur Rahman 16 DLR (SC) 410; Shah Abdur Rahman Vs. Collector and Deputy Commissioner Bahawal Nagar and others 16 DLR (SC) 470; University of Dhaka Vs. Zakir Ahmed 14, DLR 722; Bangladesh Steamer Agent’s Association Vs. Bangladesh and others 31 DLR(AD) 272; and Mohammad Ali Vs. Burmah Eastern 38 DLR (AD) 41.
18. The learned Attorney?General does not challenge the principles laid down in aforementioned cases, but he contends that notification published under clause (1) of Article 17 of President’s Order No. 8 of 1972 shows that the respondent was absconding or concealing himself or remaining abroad and hence any further notice would have been an exercise in futility. That notification was for a different cause of action and for different purposes. The publication of the impugned notification in the Bangladesh Gazette on 22 June 1973 cannot satisfy the requirement of a prior notice. The appellant’s contention that such publication was a sufficient compliance of the requirement of notice must, therefore, fail. No notice was served on the respondent at either of the two addresses mentioned in the notification, nor any effort was made to effect a substituted service on his last known address.
19. The learned Counsel for the respondent has drawn our attention to the following observation of Professor HWR Wade in his Administrative Law (fifth edition) at page 465: “For the purposes of natural justice the question which matters is not whether the claimant has some legal right but whether legal power is being exercised over him to his disadvantage. It is not a matter of property or of vested interest, but simply of the exercise of governmental power in a manner which is fair and considerate.”
20. As the respondent was staying abroad and not present in Bangladesh on 15 December 1972 there could be a doubt about his continuance or abandonment of his permanent residence on the date of commencement of President’s Order 149 of 1972. The notification expressly does not say anything about abandonment of his permanent residence. Where a doubt arises in respect of a person’s status, conduct or intention that person must be the first person to be heard and given the opportunity to dispel the doubt. Article 3 does not either specifically or by implication exclude the principle of ‘hear the other side.’ It is also silent as to duty to act judicially. From the nature of the subject matter, resolving a doubt, from the nature of wide powers with no provision for post?decisional appeal or revision and from the nature of the right to be affected by the decision I have got no doubt that in deciding any matter under Article 3 the principle of ‘hear the other side’ must be followed.
21. For non-observance of the principle of natural justice the Privy Council in Attorney- General. Vs. Ryan [1980] AC 718 advised that the Minister’s decision to refuse the respondent’s application for registration as a citizen of the Bahamas should be declared to be null and void. It was observed that “It has long been settled law that a decision affecting the legal rights of an individual which is arrived at by a procedure which offends against the principles of natural justice is outside the jurisdiction of the decision?making authority. As Lord Selborne said as long ago as 1885 in Spackman Vs. Plunistead District Board of Works (1885) 10 App. Cas. 229, 240: “There would be no decision within the meaning of the statute if there were anything done contrary to the essence of justice.” See also Ridge Vs. Baldwin [1964] AC 240. “
22. Had the Government’s case been bad only for violation of the principle of ‘hear the other side’, and it acted promptly on the expiry of the respondent’s visa, and had the respondent come to Court soon after his surrendering the passport then I would have followed the above decision and directed the Government to decide the matter afresh after hearing the respondent. The Government’s contention that the matter is still pending appears to me as too technical, when the Government sat over the matters for so many years, and without deciding it passed the order for detaining the respondent as a foreigner.
23. In case where no prior notice could be served, if, subsequent to the order, an opportunity of being heard is given to the person aggrieved, then that may be considered in certain circumstances to be a sufficient compliance of principle of natural justice. Had the respondent been given a post?decisional hearing after his arrival in this country or after the show cause notice dated 23 March 1992 served on him then perhaps the appellant’s case could not have been assailed on the ground of violation of the principle of ‘hear the other side’ or fair hearing, After hearing the respondent the Government could have omitted his name from the notification as it was done in a number of cases. The respondent’s case is that his case is not at all different from those persons whose names were omitted from the notification and that his case is totally dissimilar from those persons who did not come to challenge the notification.
24. Even if the service of prior notice is ignored as being impracticable in view of the respondent’s staying abroad beyond the jurisdiction of the country and that there was some urgency for the publication of the notification, then it is not understood why the appellant did not act on the notification when the visa of the respondent for staying in this country expired. The appellant’s inaction, whatever may be the compulsion, is not understood by me. The official amnesia was sometimes broken by naive queries, like the one made on 3 December 1986 by the Home Ministry as to how the respondent after registering himself as a foreigner was staying in this country without extending the visa. The Government did not inform the respondent nor the Parliament where the matter was raised twice, why the respondent’s application for citizenship was pending since 1978.
25. The learned Attorney?General contends that from March 26, 1971 the respondent clung to his citizenship of Pakistan till April 18, 1973 when the notification was published in the Official Gazette and that he did not satisfy the prerequisites of Article 2(i) and that there was reasonable doubt as to whether he continued to be a permanent resident in Bangladesh, and as in the notification three clear reasons were given as to the doubt the notification was wrongly struck down by the High Court Division. The respondent’s case is that the notification itself shows that the Government did not apply its mind and exercised its power dehors Article 2 and was guided by considerations irrelevant under Article 2.
26. Article 3 does not provide for a declaration or publication of such a declaration in the Official Gazette. It indicates that a decision is to be given with regard to a person. It is not clear why in the notification 39 persons were banded together and why it was issued when all the thirty?nine persons were stated to be staying abroad i.e. beyond the jurisdiction of the country. The notification in question appears to be the only one so far issued by the Government. On December 5, 1973 it was challenged in Writ Petition 410 of 1973 by Molla Harunur Rashid, mentioned at serial No. 13 of the notification. Subsequently by a notification dated 13 May 1974 the writ-petitioner’s name was omitted from the notification and the Rule issued in the writ petition was discharged as infructuous. After a change in the Government and a new orientation in the politics of the country in 1976 names of several other persons, about fifteen in number, mentioned in the notification were omitted by the Government, the learned Attorney-General informs this Court.
27. The questions whether by his conduct the respondent disqualified himself to be a citizen of Bangladesh or whether he renounced his citizenship of Bangladesh or whether he continued to be a citizen of Pakistan, implying he had already been a citizen of Pakistan are totally irrelevant under Article 3. If the purpose was to deter the persons mentioned in the notification from making anti-Bangladesh propaganda then that was not covered by Article 3. The only question that can be decided under Article 3 whether a person is qualified to be deemed to be a citizen of Bangladesh. The notification indicates that the Government did not ask the right question, namely, whether the respondent was a permanent resident in Bangladesh on 15 December 1972. It was not made in exercise of power under Article 3 and it therefore must be held to be ultra vires.
28. The appellant had relied on the respondents Pakistani passport as the most important evidence of his Pakistani citizenship. As a Pakistani the respondent applied and obtained a Pakistani passport and in that capacity he went to Saudi Arabia to perform hajj. Then he went to London as a Pakistani and got his Pakistani passport renewed there. He entered Bangladesh as a Pakistani citizen, and registered himself as a foreigner. His visa was extended twice on his Pakistani passport. He continued to hold that passport and did not surrender it on his own.
29. The appellant relied on Joyce Vs. Director of Public Prosecutions 1946 AC 347. In 1933 Joyce, an American citizen, got a British passport, describing himself as a British subject by birth. After the outbreak of war between Great Britain and Germany and before the expiration of his renewed passport, Joyce delivered from enemy territory broadcast talks in English hostile to Great Britain. The passport was not found in his possession when he was arrested in Germany. Joyce was forwarded to England for trial for high treason. By a majority decision the House of Lords upheld the order of his conviction and the death sentence.
30. Lord Jowitt LC referred to the following definition of passport given by Lord Alverstone CJ in R Vs. Brailsford (1) [1905] 2 KB 730, 745:
“It is a document issued in the name of the sovereign on the responsibility of a minister of the Crown to a named individual, intended to be presented to the governments of foreign nations and to be used for that individual’s protection as a British subject in foreign countries.” It was observed that” The possession of a passport by a British subject does not increase the sovereign’s duty of protection, though it will make his path easier. For him it serves as a voucher and means of identification. But the possession of a passport by one who is not a British subject gives him rights and imposes upon the sovereign obligations which would otherwise not be given or imposed. It is immaterial that he has obtained it by misrepresentation and that he is not in law a British subject. By the possession of that document he is enabled to obtain in a foreign country the protection t extended to British subjects. By his own act he has maintained the bond which while he was within the realm bound him to his sovereign.”
31. The Lord Chancellor, however, acknowledged “that there is nothing to prevent an alien from withdrawing from his allegiance when he leaves the realm. I do not dissent from this as a general proposition. It is possible that he may do so even though he has obtained a passport.” It was however held:
“But that is a hypothetical case. Here there was no suggestion that the appellant had surrendered his passport or taken any other overt step to withdraw from his allegiance, unless indeed reliance is placed on the act of treason itself as a withdrawal. That, in my opinion, he cannot do. For such an act is not inconsistent with his still availing himself of the passport in other countries than Germany and possibly even in Germany itself.”
32. The passport was never found again. The accused might have used it only to gain admittance to Germany and might then have discarded it. As the jury was not asked to pronounce on the question that unless the accused continued to retain the passport for use as a potential protection, the duty of allegiance would cease, Lord Porter dissented and allowed the appeal.
33. In the instant case, the respondent surrendered his passport which act itself is an evidence to show that though he used the Pakistani passport to enter this country he did not want to belong to the political community of Pakistan. The decision of the House of Lords in Joyce has got little relevance in this case. A different question was raised in that case. Lord Jowett LC himself observed: “The question is not whether he obtained British citizenship by obtaining the passport, but whether by its receipt he extended his duty of allegiance beyond the moment when he left the shores of this country. As one owing allegiance to the King he sought and obtained the protection of the King for himself while abroad.”
34. The US Supreme Court observed long ago in Domingo Urtetiqui Vs. John ND Arcy (1835) 9 L. ed. 276; 9 Pet, 692, 698: “There is some diversity of opinion on the bench, with respect to the admissibility in evidence of this passport, arising, in some measure, from the circumstances under which the offer was made, and its connection with other matters which had been given in evidence. Upon the general and abstract question, whether the passport, per se, was legal and competent evidence of the fact of citizenship, we are of opinion that it was not.”
35. In Corpus Juris Secundum Vol. 14 at page 18 it is noted that “The granting of a passport to a particular individual by the state department is not conclusive that such person is a citizen of the United States.”
36. The learned Attorney?General has drawn our attention to the following observation made in that majority decision: Izhar Ahmed Vs. Union of India AIR 1962 (SC) 1052 (1065):
“Now, it is not disputed that according to the laws prevailing in Pakistan a person is not entitled to apply for or obtain a passport unless he is a citizen of Pakistan under its Citizenship Act. Besides, the prescribed form of the application requires that the applicant should make a declaration to the effect that he is a citizen of Pakistan and the said declaration has to be accepted by the Pakistan authorities before a passport is issued. In the course of the enquiry as to the citizenship of the applicant, declaration by officials of Pakistan about the truth of the statement of the applicant are also required to be filed. Thus, the procedure prescribed by the relevant Pakistan laws makes it abundantly clear that the application for the passport has to be made by a citizen of Pakistan, it was to contain a declaration to that effect and the truth of the declaration has to be established to the satisfaction of the Pakistan officials before a passport is granted. When a passport is obtained under these circumstances, so far as the Pakistan Government is concerned, there can be no doubt that it would be entitled to claim the applicant as its own citizen. The citizen would be estopped from claiming against the Pakistan Government that the statement made by him about his status was untrue. In such a case, if the impugned rule prescribes that the obtaining of a passport from the Pakistan Government by an Indian national, (which normally would be the result of the prescribed application voluntarily made by him) conclusively proves the voluntary acquisition of Pakistani citizenship, it would be difficult to hold that the rule is not a rule of evidence.”
37. The respondent has, on the other hand, relied on paragraph 9 in Md. Ayub Khan Vs. Commissioner of Police AIR 1965 (SC) 1623 (1626):
“Acquisition of citizenship of another country to determine Indian citizenship, must, however, be voluntary. Provision for prescribing rules of evidence, having regard to Which the question of acquisition of citizenship of another country has to be determined, clearly indicates that the order is not to be made on the mere satisfaction of the authority without enquiry, that the citizen concerned has obtained a passport of another country. The question as to whether, when and how foreign citizenship has been acquired has to be determined having regard to the rules of evidence prescribed, and termination of Indian citizenship being the consequence of voluntary acquisition of foreign citizenship, the authority has also to determine that such latter citizenship has been voluntarily acquired. Determination of the question postulates an approach as in a quasi?judicial enquiry; the citizen concerned must be given due notice of the nature of the action which in the view of the authority involves termination of Indian citizenship, and reasonable opportunity must be afforded to the citizen to convince the authority that what is alleged against him is not true.”
38. In India Article 10 of the Constitution provides that every person who is or is deemed to be a citizen of India under any provision of the Constitution shall, subject to the provisions of any law that may be made by Parliament, continue to be such citizen. By Article 11 Parliament is authorised to make provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship. Rule 30 of the Citizenship Rules, 1965 under the Indian Citizenship Act, 1955 provides that the Central Government is to determine the question as to whether, when or how any person has acquired the citizenship of another country with due regard to the rules of evidence specified in schedule III. One of the rules of evidence reads as follows: “3. The fact that a citizen of India has obtained on any date a passport from the Government of any other country shall be conclusive proof of his having voluntarily acquired the citizenship of that country.” By majority decision in Izhar Ahmed Vs. Union of India 1962(SC) 1052 (1965) the India Supreme Court upheld the validity of that rule of evidence. In our law there is no such corresponding provision.
39. In Md. Ayub Khan Vs. Commissioner of Police, Madras the Supreme Court refused to re?examine Izhar Ahmed’s case as it had been followed in AP Vs. Syed Mohd. Khan AIR 1962 (SC) 1778. The Court however gave a liberal interpretation to Rule 3. Shah J. observed that it was impossible to hold that the termination of Indian citizenship depended upon the action of the foreign country in issuing the passport. It was held that the mere receipt of a passport by a person did not attract the operation of Rule 3 unless it was shown that the passport was received voluntarily. The same view was reiterated in Gangadhar Vs. Erasmo Jesus Jesus AIR 1975 (SC) 972.
40. Citizenship is neither conferred by giving a passport nor it is acquired by receiving a passport. As both the grantor and the grantee of a passport are bound by certain mutual legal obligations, similar to those between the State and its citizen, a passport is considered as prima facie evidence of citizenship or nationality of its holder. It was held as a good evidence in the Superintendent and Remembrancer of Legal Affairs, Govt. of East Pakistan Vs. Sunil Kumar Das 14 DLR Dhaka 705 and Gour Chandra Saha Vs. The Vice?Chairman, East Pakistan Enemy Property Dhaka and others 21 DLR, Dhaka 535. It was observed in 14 DLR, Dhaka 705: ” [I] t will be presumed, in the absence of any evidence to the contrary, that the passport obtained by the respondent from the Pakistan Government was obtained in due course of law. The passport raises a very strong presumption of the citizenship of a person, and is undoubtedly a primary evidence of citizenship of the holder thereof of the State from whom the passport has been obtained.” In Superintendent and Remembrancer of Legal Affairs, Government of East Pakistan Vs. Kiron Chandra Dutta PLR (Dhaka) 436 at page 441 it was, however, held that “a person may hold a passport of another country owing to a variety of reasons and it cannot be deemed to be a conclusive proof of the nationality of the country of which he holds the passport although a strong presumption arises to that effect”. In that case it was found that the presumption arising out of the holding of Indian passport had been rebutted by the evidence adduced by the respondent that his parents, brothers and his wife and children were living in Pakistan and that he never intended to leave Pakistan permanently.
41. A passport is not regarded as conclusive evidence of the citizenship or the nationality of its holder. This is because practice of issuing passport to non?citizens is widely prevalent amongst nations Article 15 of the Bangladesh Passport Order, 1973 (President’s Order 9 of 1973) provides that the Government may issue a passport or travel document to a person who is not a citizen of Bangladesh if the Government is of the opinion that it is necessary to do so in the public interest. Similar provision is there in section 20 of the Passport Act, 1967 of India.
42. It is contended that the respondent ought to have discarded the Pakistani passport and sought political asylum in England and asked for Nansen passport as a stateless person. The respondent did not get any opportunity to meet this new contention, urged for the first time before this Court. We are to examine the respondent’s case on the basis of what he did and not on the basis of what he could have done on supposedly better advice. From the Government’s own paper, a copy of the telex dated 5 May 1972 from the Bangladesh High Commissioner to the Home Secretary, it appears that 14,187 persons obtained Bangladeshi passports from the High Commission after surrendering their Pakistani passport. The Government’s case is that like other Bangladeshis from Pakistan the respondent did not surrender his Pakistani passport and ask for Bangladeshi passport before the Bangladesh High Commission in London. A Bangladeshi citizen who surrendered his Pakistani passport obviously used that passport as a convenient travel document without which he could not leave Pakistan and enter England. The appellant’s contention that the respondent ought to have surrendered his Pakistani passport and asked for Bangladeshi passport is totally misconceived. The Bangladesh High Commission in London could not have issued a Bangladeshi passport to the respondent in the face of the notification dated 18 April 1973. The respondent could not have surrendered or discarded his Pakistani passport in England and denuded himself of the only travel document for leaving England and coming to Bangladesh.
43. The learned Attorney ?General has submitted that in the USA even for voting in a political election in a foreign country a US citizen may lose his citizenship. He has not cited the case. That was the decision in Perez Vs. Brownell 356 US 44,2 L ed 2d 603 S C1.568. The Constitution of the USA did not define US citizenship prior to the Civil War, probably to avoid fixing the status of slaves. The Supreme Court in Scott Vs. Sandford 60 US (19 How.) 393 (1857) defined the scope of US citizenship negatively, holding that such citizenship could not extend to a freed slave. That decision was overruled by the fourteenth amendment which provides: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
44. In case of Perez in his dissent, joined by Black and Douglas JJ, Chief Justice Warren, held:
“Citizenship is man’s basic right, for it is nothing less than the right to have rights. Remove this priceless possession and there remains a stateless person, disgraced and degraded in the eyes of his countrymen. He has no lawful claim to protection from any nation, and no nation may assert rights on his behalf. His very existence is at the sufferance of the state within whose borders he happens to be”.
45. In Trop Vs. Dulles 356 US 86, 2 L ed 2nd 630, 78 S Ct 590, decided on the same day as Perez, the plaintiffs application for a passport was denied on the ground that he had lost his citizenship by reason of his court?martial conviction and dishonorable discharge for wartime desertion. Warren, CJ, with the concurrence of Black, Douglas, and Whittaker, JJ. held that
“Citizenship is not a licence that expires upon misbehavior. The duties of citizenship are numerous …….and the discharge of many of these obligations is essential to the security and well?being of the nation failure to perform any of these obligations may cause the nation serious injury, and, in appropriate circumstances, the punishing power is available to deal with derelictions of duty. But citizenship is not lost every time a duty of citizenship is shirked. And the deprivation of citizenship is not a weapon that the Government may use to express its displeasure at a citizen’s conduct, however, reprehensible that conduct may be. As long as a person does not voluntarily renounce or abandon his citizenship, and this petitioner has done neither, I believe his fundamental right of citizenship is secure.”
46. The decision in Perez was over?ruled in Afroyim Vs. Rush 387 US 253, Supreme Court Report 18 L ed 757, 87 S Ct. 1660 (P. 760) In delivering the opinion of the Court Black J. held:
“To uphold Congress’ power to take away a man’s citizenship because he voted in a foreign election in violation of S 401(c) would be equivalent to holding that Congress has the power to “abridge,” “affect,” “restrict the effect of,” and “take …….away” citizenship. Because the Fourteenth Amendment prevents Congress from doing any of these things, we agree with the Chief Justice’s dissent in the Perez case that the Government is without power to rob a citizen of his citizenship under S 401(e) [of the Nationality Act of 1940] ……… We hold that the Fourteenth Amendment was designed to, and does, protect every citizen of this nation against a congressional forcible destruction of this citizenship, whatever his creed, color, or race. Our holding does no more than to give to this Citizen that which is his own, a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship.”
47. In his dissent in Perez case Chief Justice Warren, however, indicated that “under some circumstances [a citizen] may be found to have abandoned his status by voluntarily performing acts that compromise his undivided allegiance to his country.” The rights’ conception of US citizenship, entrenched in Fourteenth Amendment, is different from our law. I have referred to the above decisions to show how the US Supreme Court has come to lay emphasis on voluntariness in cases of derivative relinquishment of citizenship. What will constitute voluntary relinquishment of citizenship will depend on the facts of each case.
48. Banishment, expulsion or ostracism by customary laws prevailing in ancient societies have been replaced in modem times by laws regulating expatriation, denationalisation or deprivation of citizenship. The histories of national liberation movements and break-away wars are replete with tragic stories of divided allegiance, broken families and endless human miseries. In the USA during civil war years (1861?65) of emotional stress and hostility, bordering on delirium, Congress passed two Acts designed to deprive military deserters to the Southern side of the rights to citizenship. In Europe between 1919 to 1941 several countries ……………Soviet Russia, Turkey, Italy, Germany, Romania, Poland and France ……..passed decrees denationalising considerable number of subjects on the ground of uninterrupted residence abroad, disaffection, political or other reasons. Article 15 of the Universal Declaration of Human Rights, 1948, specifies that everyone has the right to a nationality, and that no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality. According to the Convention on the Reduction of Statelessness, 1961, a contracting State shall grant its nationality to a person born in its territory who otherwise will be stateless and shall not deprive a person of his nationality if such deprivation would render him stateless. Bangladesh has not yet signed the Convention on Reduction of Statelessness, but thanks to judicial pronouncements quite a few salutary features of the growing international norms in this regard have stood embodied in our national jurisprudence. The Superior Courts in our country have always interpreted the law of citizenship liberty so that one’s claim to citizenship is upheld rather than destroyed, discarded documents of distress, obtained in time of despair, as prima facie evidence of renunciation of citizenship, and emphasised on voluntariness of such renunciation.
49. In the Superintendent and Remembrancer of Legal Affairs, Government of East Pakistan Vs. Kiron Chandra Dutta 15 PLR Dhaka 436 (441) where the respondent, a citizen of Pakistan, had been to India for medical treatment before, the introduction of the system of passport between East Pakistan and India, and returned home with an Indian passport and visa from the Pakistan High Commission it was held that the respondent did not lose his citizenship of Pakistan as the prosecution failed to prove that he left Pakistan for India with the intention to settle there permanently.
50. In the Advocate ?General Vs. Benoy Bhusan 25 DLR (SC) 9 (12), the Supreme Court relied more on oral evidence than on the documentary evidence of a migration certificate. In view of the oral evidence of the Chairman of the Local Union Council that the respondents were voters in Pakistan in 1964, that they went to India after the disturbances in 1964, that before their departure they had told him that they would come back to Pakistan after the restoration of peace, that they did not sell any of their properties before their departure for India, that they returned home from India within one or one and a half months after their departure and that after the return they repaid the agricultural loan which they had earlier taken, it was hold that “it cannot be said that the respondents left Pakistan for good after abandoning their domicile in Pakistan with the intention of permanently settling in India and to acquire Indian citizenship. The migration Certificate, on the strength of which they crossed into the Indian territory, at the most, contained an admission of the respondents that they had intended to settle in India, but this admission was capable of being explained away. In the exigencies of circumstances created by the disturbances in East Pakistan in 1964, it was perhaps not unnatural on the part of the respondents to cross into India under a Migration Certificate for their personal safety, The normal travel documents, such as passport and visa, were not likely to be available to them in those circumstances and, therefore, they were circumstanced to avail of the Migration Certificate in order to facilitate their entry into India, The mere grant of the Migration Certificate did not confer Indian citizenship on the respondents under the Indian Citizenship Act 1955, nor was there any evidence to show if the respondents applied for securing Indian citizenship under the applicable provisions of the said Indian Act. On the contrary, the evidence was that they, in accordance with their promise to the Chairman of the Union Council, returned home in East Pakistan within 1 or 1 /2 months of their departure.”
51. In Mukhtar Ahmed Vs. Government of Bangladesh 34 DLR 29 in view of the petitioner’s continuous permanent residence in this country as a naturalised citizen and his taking oath of allegiance to Bangladesh the Court ignored his application filed in time of distress to the International Committee of Red Cross for going to Pakistan which was however rejected for not being pursued. It was held that the petitioner having not acquired the citizenship of any other country, his citizenship of Bangladesh which he acquired long before could not evaporate and that he continued to be a citizen of Bangladesh.
52. Ordinarily the question of citizenship comes for a decision when the person concerned enters the country or makes a claim on the basis of citizenship or is denied a passport. On the respondent’s citizenship the appellant’s contentions are various, a little incoherent. The learned Attorney?General’s contentions that from 26 March 1971 till the publication of the notification on 18 April 1973 the respondent clung to his citizenship of Pakistan and that, though the respondent was born within the territories that now comprise Bangladesh, in his contemplation his birth place was in Pakistan are totally flawed. Law cannot be interpreted according to the respondent’s alleged contemplation or notion about Pakistan’s sway over his mind. Even a diehard pro-Pakistani, born in this country, is entitled to be a citizen of Bangladesh if he fulfills the requirements under Article 2 and is not disqualified under clause (1) of Article 2B. In one breath it is urged that the respondent was not a citizen of Bangladesh, and in another breath it is asserted that for his conduct and pro-Pakistani activities he was disqualified to be a citizen of Bangladesh. It is again urged that the respondent was never a citizen of Bangladesh and that, as such, his citizenship was never cancelled. If the Government’s case is that the respondent was never a citizen of Bangladesh or, as stated in the modification, that he continued to be a citizen of Pakistan, then it is not understood why his name was included in the notification. The learned Attorney?General contends that no question of cancellation of citizenship arises in this case as the respondent had never been a citizen of this country. The press handout dated 17 January 1976 issued by a Deputy Secretary of the Home Ministry indicated that the Government decided to consider restoration of citizenship of those persons whose citizenship had been cancelled after liberation by the then government and that they might directly apply for restoration of their citizenship to the Secretary of the Home Ministry. It is contended that this had no nexus with the notification in question and that there was also no sanction behind that press release. The Government can hardly disown its own press handout, when no such stand was taken in the Government’s reply dated 23 April 1977 to the respondent’s application for restoration of citizenship.
53. The connotation of permanent residence of a citizen by birth as provided in Article 2, is akin to that of domicile of origin, an expression found in private international law. The domicile of origin is not a matter of choice or free will. It is received or communicated to a person at his birth by operation of law. The domicile of origin is not lost by mere abandonment nor it is extinguished by mere removal animo non revertendi. Overwhelming evidence is required to rebut the presumption in favour of its continuance. The onus of proving that a domicile had been chosen in substitution for the domicile of origin would lie upon those who assert that the domicile of origin had been lost. The learned counsel for the respondent cited a number of decisions in this regard Bell Vs. Kennedy (1868), LR I Sc & Division 307; Udny Vs. Udny (1869), LR I SC & Division 441; Winans V AG, 119041 AC 287; 290; Ramsay Vs. Liverpool Royal Infirmary [1930] AC 588; Superintendent and Retnembrancer of Legal Affairs, Government of East Pakistan Vs. Kiron Chandra Dutta 15 PLR Dacca 436; Gour Chandra Saha & others Vs. The Vice?Chairman, East Pakistan Enemy Property Dacca & ors 21 DLR 535 and Shah Ghulam Nabi & others Vs. Vice?Chairman, East Pakistan Enemy Property Management Board Dacca & ors. 22 DLR 48. Any event or incident of a man’s life, his health and humorous, his expectations of financial gains or advancement, his religious belief or political conviction, his prejudices or preferences will be relevant and admissible as indicia of his intention to abandon his permanent residence with no intention to return.
54. Before the High Court Division the appellant’s case was that as the respondent acted in a manner prejudicial to the interest of the liberation of Bangladesh on and from 26th March; 1971 and thereby expressly and by conduct owned, affirmed and acknowledged allegiance to a foreign state, he cannot qualify himself to be a citizen of Bangladesh. The Government placed before the High Court Division a number of books, written long after the date of notification, in support of its contention that the respondent collaborated with Pakistan and indulged in anti?Bangladesh propaganda and appealed to some Muslim countries not to recognise Bangladesh. The truth or otherwise of the authors’ views or statements cannot be verified in this summary proceeding. Advisedly the learned Attorney ?General did not place those books before this Court. Instead, reliance was placed on numerous reports, published in the Dainik Sangram, the mouthpiece of the respondent’s political party, Jamaa