Bangladesh vs. Professor Golam Azam 46 DLR (AD) 192 (Citizenship Case)

Facts: Professor Golam Azam, the plaintiff in this case, became the Amir of Jamat-E-Islami of Esat Pakistan in 1969. He was in this post till 1971. He was opposed to the liberation war of Bangladesh from the beginning. He and his Party sided with the Pakistan Authorities at that time. Before Bangladesh won the victory on December 16, 1971, Golam Azam left the country on November 22, went to Pakistan, and continued to live there.

He was opposed to the liberation war of Bangladesh from the beginning. He and his Party sided with the Pakistan Authorities at that time. Before Bangladesh won the victory on December 16, 1971, Golam Azam left the country on November 22, went to Pakistan, and continued to live there.

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.