From: Nazir Ahmed <nazirahmed71@hotmail.com>
Subject:ARTICLE PUBLISHED IN A NATIONAL DAILY AND OTHER INTERNET/COMMUNITY BASED NEWSPAPER
Date: Saturday, March 5, 2011
Dear Sir/Respected Br./Colleague/Friend,
I enclose herewith a paper/article which was published in the national daily as well as in other internet and community based newspapers/magazines.I have also 'cut and pasted' below in case you have problem in downloading.
Any comment/feedback is wellcome.
With regards,
WS
Yours faithfully,
WS
Yours faithfully,
Nazir Ahmed FRSA FCMI
LLB Hons. (London), LLM (London)
FRSPH (London), FCIArb (London)
Solicitor, Supreme Court of England and Wales
Advocate, Supreme Court of Bangladesh
Barrister-at-Law, Hon Society of Lincoln's Inn
First Floor,
108A Whitechapel Road
London E1 1JE
Tel. 020 7375 0062
Fax: 0207 247 9541
Mob: 07980 838 503
Email: nazirahmed71@hotmail.com
------------------------
Funny constitutional provisions: a British citizen can become Head of the Government in Bangladesh but not an MP!
BY Barrister Nazir Ahmed
Constitutionally a dual citizen (e.g. a British citizen of Bangladeshi origin) can become a Head of the Government in Peoples' Republic of Bangladesh (by becoming a High Court Judge, then a Judge of the Appellate Division of the Supreme Court, and then the Chief Justice and, upon retirement, finally by being the Head of the Caretaker Government), but he cannot stand in general election (parliamentary election) to become a Member of Parliament (MP). How funny the provision is? This may look awkward and inconsistent, but this is the possibility and reality under the current constitutional provisions in Bangladesh.
Let us see the constitutional provision in relation to the appointment of a High Court Judge and eligibility for standing to become an MP. According to Article 95 of the Constitution, A person shall not be qualified for appointment as a Judge unless he is a citizen of a 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 qualification and disqualification for election in Parliament, 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. 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 dual national 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 at least three Judges in the High Court 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 renounces his foreign nationality. If a person is a dual national (i.e. British citizen of Bangladeshi origin – Bangladeshi citizen by birth), he must renounce his British citizenship before he submits his nomination paper for 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 - general public. However, what I would say that tasks of the High Court Judges are in no way less important than the MPs. High Court Judges are considered as Guardian 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 oath on appointment the High Court Judge utters/recites, 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] utter/recite those words when taking oath.
With the passage of time a High Court Judge will be elevated to the Appellate Division of the Supreme Court and then he will, at appropriate time, be appointed as Chief Justice of Bangladesh [Article 95(1) of the Constitution]. Naturally he will retire at the age of 67 [Article 96(1) of the Constitution]. Under the current constitutional provision, the last retired Chief Justice will become Chief Advisor of the Caretaker Government [Article 58C of the Constitution]. As we all know, during the tenure of the Caretaker Government, the Chief Advisor enjoys 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 can become the Head of Government and see and sign all confidential files of the State. But he cannot be an MP!
Time has come to think about it. If a dual national can aim to become a Head of the State, why the same person cannot aim to become an MP. What is the point of putting or keeping unreasonable barrier in the Constitution for dual national of Bangladeshi origin so that he cannot become an MP? What purpose and advantage the provision would suppose to serve? It should be noted that in order to stand in British parliamentary election, one does not even need to be a British citizen. Nor does he need to be electorate in that constituency. He only needs to have permanent residence status in the UK (indefinite leave to remain holder)! He does not even need to renounce his original foreign nationality. If a Bangladeshi citizen, by being an indefinite leave holder, can stand for British Parliamentary election, why Bangladeshi citizen by birth, having a British citizenship by naturalisation as opposed to birth, cannot 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] in a recent public meeting in London said that expatriate British Bangladeshis should not only be given voting rights but they should also be able to stand in parliamentary election to become MPs. We have been assured by his declaration. Heavy weight Minister's declaration, no doubt, carries much weight. 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 be immensely benefitted if dual nationals were given chance to make 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 (graduated from world class universities, such as Oxford University, Cambridge University, Harvard University, London University, Heidelberg University etc.) and diverse professionals. They can utilise their invaluable talents in taking their homeland forward if they are given 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 loser. The Honourable LGRD Minister himself was an expatriate – lived and worked long period in London. No one would better understand than him of British Bangladeshis' potentials.
----------------------------------
Nazir Ahmed FRSA FCMI
Advocate, Supreme Court of Bangladesh, Barrister-at-Law (Lincoln's Inn)
Let us see the constitutional provision in relation to the appointment of a High Court Judge and eligibility for standing to become an MP. According to Article 95 of the Constitution, A person shall not be qualified for appointment as a Judge unless he is a citizen of a 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 qualification and disqualification for election in Parliament, 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. 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 dual national 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 at least three Judges in the High Court 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 renounces his foreign nationality. If a person is a dual national (i.e. British citizen of Bangladeshi origin – Bangladeshi citizen by birth), he must renounce his British citizenship before he submits his nomination paper for 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 - general public. However, what I would say that tasks of the High Court Judges are in no way less important than the MPs. High Court Judges are considered as Guardian 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 oath on appointment the High Court Judge utters/recites, 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] utter/recite those words when taking oath.
With the passage of time a High Court Judge will be elevated to the Appellate Division of the Supreme Court and then he will, at appropriate time, be appointed as Chief Justice of Bangladesh [Article 95(1) of the Constitution]. Naturally he will retire at the age of 67 [Article 96(1) of the Constitution]. Under the current constitutional provision, the last retired Chief Justice will become Chief Advisor of the Caretaker Government [Article 58C of the Constitution]. As we all know, during the tenure of the Caretaker Government, the Chief Advisor enjoys 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 can become the Head of Government and see and sign all confidential files of the State. But he cannot be an MP!
Time has come to think about it. If a dual national can aim to become a Head of the State, why the same person cannot aim to become an MP. What is the point of putting or keeping unreasonable barrier in the Constitution for dual national of Bangladeshi origin so that he cannot become an MP? What purpose and advantage the provision would suppose to serve? It should be noted that in order to stand in British parliamentary election, one does not even need to be a British citizen. Nor does he need to be electorate in that constituency. He only needs to have permanent residence status in the UK (indefinite leave to remain holder)! He does not even need to renounce his original foreign nationality. If a Bangladeshi citizen, by being an indefinite leave holder, can stand for British Parliamentary election, why Bangladeshi citizen by birth, having a British citizenship by naturalisation as opposed to birth, cannot 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] in a recent public meeting in London said that expatriate British Bangladeshis should not only be given voting rights but they should also be able to stand in parliamentary election to become MPs. We have been assured by his declaration. Heavy weight Minister's declaration, no doubt, carries much weight. 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 be immensely benefitted if dual nationals were given chance to make 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 (graduated from world class universities, such as Oxford University, Cambridge University, Harvard University, London University, Heidelberg University etc.) and diverse professionals. They can utilise their invaluable talents in taking their homeland forward if they are given 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 loser. The Honourable LGRD Minister himself was an expatriate – lived and worked long period in London. No one would better understand than him of British Bangladeshis' potentials.
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Nazir Ahmed FRSA FCMI
Advocate, Supreme Court of Bangladesh, Barrister-at-Law (Lincoln's Inn)
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