A British citizen can be the Chief Justice
of Bangladesh but not an MP!
Barrister Nazir Ahmed
Constitutionally a dual citizen (e.g. a British citizen of Bangladeshi origin) can become the Chief Justice of the People's Republic of Bangladesh (i.e. by becoming a High Court Judge, then a Judge of the Appellate Division of the Supreme Court, and then the Chief Justice) - but he cannot stand in a General Election (parliamentary election) to become a Member of Parliament (MP). Interestingly, before the Fifteenth Amendment came into force (which repealed the provision of the Caretaker Government), a British citizen of Bangladeshi origin could become the Head of the Government of the Peoples' Republic of Bangladesh (i.e. by becoming a High Court Judge, then a Judge of the Appellate Division of the Supreme Court, then the Chief Justice and, upon retirement, finally by being the Head of a Caretaker Government). How funny the constitutional provision was and still is? This may look awkward and inconsistent, but this is what is possible and the reality under the current constitutional provisions of Bangladesh.
Let us look at the constitutional provisions which relates to the appointment of High Court Judges and eligibility for standing for election as an MP. According to Article 95 of the Constitution, a person shall not be qualified for appointment as a High Court Judge unless he is a citizen of Bangladesh and – (a) has, for not less than ten years, been an Advocate of the Supreme Court of Bangladesh; or (b) has, for not less than ten years, held judicial office in the territory of Bangladesh; or (c) has such other qualifications as may be prescribed by law for appointment as a Judge of the Supreme Court. On the other hand, in relation to the qualifications needed to stand in a parliamentary election and the disqualification from being eligible to do so, Article 66 of the Constitution says, inter alia, (1) A person shall, subject to the provisions of clause (2), be qualified to be elected as, and to be, to be a Member of Parliament if he is a citizen of Bangladesh and has attained the age of twenty-five years, (2) A person shall be disqualified for election as, or for being a Member of Parliament who – (a) is declared by a competent court to be of unsound mind; (b) is an undercharged insolvent; (c) acquires the citizenship of, or affirms or acknowledges allegiance to, a foreign State; d) has been, on conviction for a criminal offence involving moral turpitude, sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since his release, (dd) holds any office of profit in the service of the Republic other than an office which is declared by law not to disqualify its holders, (g) is disqualified for such election by or under any law.
The above constitutional provisions clearly show that one would have to be a citizen of Bangladesh to become a High Court Judge or MP. There is no doubt on this. However, a dual national of Bangladeshi origin (e.g. a British-Bangladeshi) can become a High Court Judge [no barrier in Article 95 of the Constitution], but he cannot become an MP [Article 66(2)(c) of the Constitution]. I am not proposing that someone with dual nationality of Bangladeshi origin should not be allowed to become a High Court Judge. Rather, I am in favour of allowing all dual nationals of Bangladeshi origins to take active part in each and every sector of the State, including the Supreme Court and Parliament. In fact, currently we have few Judges in the Supreme Court of Bangladesh who have dual nationality and they have been performing their duties confidently and competently. They have, by now, shown their outstanding wisdom and ability. A dual national of Bangladeshi origin cannot become an MP unless he or she renounces his or her foreign nationality. If a person is a dual national (i.e. a British citizen of Bangladeshi origin – Bangladeshi citizen by birth), he or she must renounce their British citizenship before submitting their nomination paper for the parliamentary election.
Now the question is: who performs the more important tasks? A High Court Judge? Or an MP? I would not attempt to answer the question. Rather, I will leave it to the readers – to the general public. However, what I would say is that the tasks of the High Court Judges are in no way less important than those of the MPs. The High Court Judges are considered as the Guardians of the Constitution. They are the protectors of the fundamental rights of the citizens of the Republic enshrined in Part III of the Constitution. They have inherent power and original jurisdiction. When taking the oath on their appointment the High Court Judges recite, among others, "That I will preserve, protect and defend the Constitution and the laws of Bangladesh" (Third Schedule: Article 148 of the Constitution: OATHS AND AFFIRMATIONS]. Although MPs are considered to be law makers, they do not [in fact, they are not required to] recite those words when taking their oath.
With the passage of time, a High Court Judge will be elevated to the Appellate Division of the Supreme Court and then he or she will, at appropriate time, be appointed as the third important person of the Republic, the Chief Justice of Bangladesh [Article 95(1) of the Constitution]. Naturally he or she will retire at the age of 67 [Article 96(1) of the Constitution]. Under the constitutional provisions which pertained prior to the Fifteenth Amendment, the last retired Chief Justice was supposed to become the Chief Advisor to the Caretaker Government [Article 58C of the Constitution]. As we all know, during the tenure of the Caretaker Government, the Chief Advisor enjoyed the status and privileges of a Prime Minister [Article 58C(11) of the Constitution]. Now it looks funny that a dual national of Bangladeshi origin could have become the Head of Government and seen and signed all confidential files of the State - but would not be able to be an MP!
Time has come to think about it seriously. If a dual national could aim to become the Head of the Government and now can aim to become the Chief Justice of the Republic, why can the same person not aim to become an MP? What is the point of putting in or keeping an unreasonable barrier in the Constitution in the way of those with dual nationality who are of Bangladeshi origin, so that they cannot become MPs? What purpose is the provision supposed to serve and what advantage is it supposed to confer? It should be noted that in order to stand in British parliamentary elections, one does not even need to be a British citizen. Nor does he need to be an electorate in the particular constituency where one stands. A candidate only needs to be voter and have at least permanent residence status in the United Kingdom (indefinite leave to remain or permanent residence holder)! A candidate does not even need to renounce his or her original foreign nationality. If a Bangladeshi citizen, by being an indefinite leave holder, can stand in the British Parliamentary elections, why can someone who is a Bangladeshi citizen by birth but also has British citizenship by naturalisation (as opposed to registration by birth), not stand to become a Member of Parliament in Bangladesh? Do we pretend to be more democratic than British?
The Honourable Minister for Local Government and Rural Development (LGRD) Syed Ashraful Islam [Secretary General of the Ruling Party too] said, at a public meeting in London few years ago, that expatriate British Bangladeshis should not only be given voting rights but they should also be able to stand in the parliamentary elections to become MPs. We have been assured by his declaration, which no doubt carries much weight as it was made by a heavyweight Minister. We believe the Honourable Minister and his party and government will bring this declaration into reality by bringing appropriate amendment to the Constitution. Bangladesh would benefit immensely if dual nationals were given the chance to make a contribution in nation building politics. Dual nationals of Bangladeshi origin [who are well settled and established in overseas] would probably gain little from but have a lot to give for a developing country like Bangladesh. We have thousands of dual national graduates (who have graduated from world class universities, such as Oxford University, Cambridge University, Harvard University, London University, Heidelberg University etc.) and diverse professionals. They can utilize their invaluable talents in taking their homeland forward if they are given a chance. They may have taken foreign citizenships as an advantage and privilege for practical reasons, but they have not given up their original nationality. They are not required to give up their nationality of origin. They should not be ignored. Otherwise Bangladesh would ultimately be the loser. The Honourable LGRD Minister himself was an expatriate – lived and worked a long period in London. No one would better understand than him the potential of British Bangladeshis.
Barrister Nazir Ahmed: Legal expert, analyst, writer and columnist. He can be contacted via e-mail: ahmedlaw2002@yaho.co.uk
