How a dual citizen can contest in a parliamentary election in Bangladesh
There are some required qualifications and prescribed disqualifications for being a member of parliament as per the Constitution of Bangladesh and the Representation of the People Order (RPO), 1972. Article 66 of the Constitution stipulates two qualifications such as, (1) a citizen of Bangladesh and, (2) attainment of the age of 25 years, to be a member of parliament.
Article 66(2) states that a person shall be disqualified for election as, or for being, a Member of Parliament who – amongst others, (c) acquires the citizenship of, or affirms or acknowledges allegiance to, a foreign state.
Eminent Jurist Mr Mahmudul Islam in his book 'Constitutional Law of Bangladesh', 3rd Edition, p 459 observes when the Constitution was originally adopted in 1972, a citizen of Bangladesh could not acquire citizenship of another State without losing the citizenship of Bangladesh due to Section 14 of The Citizenship Act 1951. After the amendment of the citizenship law, i.e., the Bangladesh Citizenship (Temporary Provision) Order 1972 in 1978 a Bangladeshi can acquire citizenship of a specified State without losing his citizenship of Bangladesh.
Nevertheless, a Bangladeshi acquiring citizenship of such a specified State, as Mahmudul Islam observed, should be disqualified to be or to continue as a Member of Parliament because the disqualification is caused specifically by the positive act of acquisition of a new citizenship. It does not matter if the person is still legally a Bangladeshi citizen; the mere existence of the foreign citizenship is enough to disqualify them. The focus is on the acquisition of a second allegiance rather than the termination of the first. [Mahmudul Islam, Constitutional Law of Bangladesh, 3rd Edition, p 459]
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In Abdul Halim (Md) Vs. Abul Hasan Chowdhury Kaiser and others, 54 DLR (2002) 42, where the candidature of A.N.M. Ehsanul Haque Milon (respondent No. 3), now contesting from Chandpur-1 in the ensuing Thirteenth Parliamentary election, was in question on the ground of his US citizenship, the court held that the clause 66(2) (c) requires to give an ordinary meaning and to do otherwise would amount to violating the language and expression used therein. 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.
Thus, the court found both the respondent No. 1 and respondent No. 3 disqualified not only as a Member of the 7th Parliament, but they were also disqualified for the said election. However, since the 7th Parliament had been dissolved in the meantime, the Rules in both the writ petitions, became infructuous and the court discharged the Rule.
However, by the Fifteenth Amendment introduced in our constitution in 2011, clause 2A has been inserted as an exception in art. 66 which reads that a citizen by birth who renounces their foreign citizenship is legally treated as if they never acquired it, thereby removing any disqualification for contesting in parliamentary election.
Thus, it appears that a person who has dual citizenship shall not be debarred from contesting in an election if he gives up the foreign citizenship. Resultantly, a valid question may arise whether the precondition of 'Giving up' (renunciation) in clause 2A is satisfied once the applicant finish all the procedures on his part or the matter is dependent on approval on the part of that foreign state. In order to ascertain as to when "giving up" becomes effective, provisions of renunciation from different countries can be examined. For example,
In UK, one can apply to give up his British citizenship. Renunciation of one's UK citizenship becomes effective on the date the Home Secretary officially registers his Declaration of Renunciation, meaning he ceases to be a citizen then, but this only happens if he acquires another nationality within six months of that registration; if he doesn't, the renunciation is void, and he remain a British citizen.
Similarly, an individual may exercise the right to formally renounce US citizenship. In order for a renunciation to be effective, the individual wishing to renounce US nationality must sign an oath of renunciation before a US consular or diplomatic officer abroad at a US embassy or consulate and he must request a Certificate of Loss of Nationality (CLN). While the oath is immediate, the Department of State will review the request for a Certificate of Loss of Nationality to determine whether there is a legal basis to approve it. This step may take several months or more. No time limit is prescribed for final approval and the Department may either approve or deny it. Once it is approved, the effective date would be the date of oath of renunciation.
Thus, it is apparent that regarding the renunciation of UK citizenship, official registration of the Declaration of Renunciation by Home Secretary is mandatory, whereas regarding the renunciation of US citizenship, a Certificate of Loss of Nationality (CLN) must be approved by the Department of State, a process which may take several months. Hence, renunciation is not effective on the date when one gives the Declaration of Renunciation or Oath of Renunciation.
It is worth mentioning that Bangladeshi citizens can hold dual citizenship in 101 countries; however, the rules for renouncing citizenship vary from one country to another. Since it is not possible to follow a single uniform rule, the act of renunciation on the part of the applicant should be considered sufficient to make him eligible to contest in election.
Therefore, it is submitted that the term 'gives up' in clause 2A(i) of art. 66 of the constitution of Bangladesh refers renunciation on the part of the applicant and for such renunciation to be effective, it is not necessary that it must be accepted by the authority supposed to accept it.
Barrister Md Ruhul Quddus (Kazal) is a senior advocate at the Supreme Court of Bangladesh. Md Muzahidul Islam is a research associate at Ruhul Quddus & Jurists.
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