On April 28, 1973, the Citizenship of 38 pro-Pakistani political
persons, including Golam Azam, was cancelled by the Government of Bangladesh
under Article 3 of The Bangladesh Citizenship (Temporary Provision) Order,
1972. The Government of Bangladesh argued that Golam Azam had been living
outside Bangladesh since before the liberation war as a citizen of Pakistan. His
anti-liberation role, active collaboration with the Pakistani Army and
voluntary residing in Pakistan made him ineligible to be a citizen of
Bangladesh.
On January 17, 1976, the Government of Bangladesh invited
applications from those persons whose Citizenship had been cancelled by the
previous Government for the restoration of their Citizenship. Golam Azam
immediately applied for Citizenship from London. But his application was
rejected. He applied again in 1977 and in 1978. In 1978, he came to Bangladesh
on a Pakistani passport. He was given a visa on 'humanitarian grounds' to visit
his ailing mother. Then he renewed his visa three times, and even after his
expired, he continued to live in Bangladesh. He was, however, arrested and
detained at the Dhaka Central Jail by order of detention dated March 24, 1992, under section 3 of The Foreigners Act, 1946.
Golam Azam submitted a writ petition to the High Court Division
requesting that his Citizenship be restored. His plea was accepted by the
High Court, and his Citizenship was restored. He argued that his father,
grandfather and he were all born in this country, and he was a permanent
resident in Bangladesh on March 25, 1971, and continued to be a permanent
resident. He only went to Pakistan to attend party work and was later prohibited from entering Bangladesh. So, he went to Saudi Arabia with a Pakistani passport. With that, he entered Bangladesh, immediately surrendered his Pakistani passport, and filed an application to restore his Citizenship.
An appeal was brought against the judgement of the High Court Division.
Judgment of Appellate
Division: The Appellate Division held
that Citizenship though not mentioned as a fundamental right in our
constitution, is to be considered as the right of all rights as it
depends on one's right to fundamental rights expressly provided for Citizenship
in Part III of the Constitution and his right to seek Court's protection of
those rights.
It also observed that even a diehard Pro-Pakistani, born in the
country, is entitled to be a citizen of Bangladesh if he fulfils the
requirements under Article 2 and is not disqualified under clause (1) of Article
2B.
In this case, Professor Golam Azam fulfilled all the criteria set in
Article 2 and proved his allegiance to Bangladesh by surrendering his
Pakistani passport. Also, his domicile was kept the same because of his living in
Pakistan because domicile of choice only occurs when a person resides in a
particular country with the specific intention of living there permanently. But he
had no such intention.
Honourable M. Habibur Rahman J. further argued that the notification
under Article 3 of The Bangladesh Citizenship (Temporary Provisions) Order,
1972 was ultra-vires as it was given the presumption that Golam Azam was
already a citizen of Pakistan. The government side presented the evidence of his
passport as proof of his Citizenship in Pakistan, but the Court rejected the argument
as it is acquired by receiving a passport. It may only be a travel document.
Thus the appeal was dismissed.
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