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

Bench: M Habibur Rahman J; ATM Afzal J; Mustafa Kamal J; Latifur Rahman J

Advocates Appeared:

Aminul Huq, Attorney-General with AF Hasan Ariff, Deputy Attorney-General & B Hossain, Deputy Attorney-General, instructed by Sharifuddin Chaklader, Advocate-on-Record – For the Appellant.

AR Yusuf, Senior Advocate, instructed by Md. Nowab Ali, Advocate-on-Record – For the Respondent No. 1.

Not Represented -Respondent Nos. 2 & 3.

Date of Judgment: June 22, 1994

Facts:

Professor Golam Azam, the respondent in this case, went to Pakistan on 22nd November, 1971 and stayed there for about thirteen months. Considering him as a Pakistani citizen, the government of Bangladesh canceled his citizenship in 1973. Later, he surrendered his Pakistani passport and submitted an oath of allegiance to Bangladesh for restoring citizenship. When his citizenship again came into question in 1992, he successfully challenged the notification of 1973 cancelling his citizenship in the High Court Division, and an appeal was brought against its judgment at the instance of the government.

Issues:

i. Whether staying abroad can be a reasonable ground for doubt under Article 3 of the Bangladesh Citizenship Order, 1972.
ii. Is the impugned notification violative of natural justice?

Arguments of the Respondent:

The respondent claimed that he did not have any fixed address in Pakistan and used Pakistani passport as a travel document. He also made several attempts to return Bangladesh but occasions didn’t permit. He was adjudged to be a citizen of Bangladesh as per Article 2 of the said mandate, having a permanent residence here on the 25th of March 1971. It was further argued that legal power was not exercised over him by serving any prior notice.

Arguments of the Appellant:

It was contended that the respondent staying in Pakistan on and from November 1971 was neither for his studies nor his employment and the proviso to Article 2 of President’s Order No.149 of 1972 was not available to him. As to the abandonment of permanent residence, it was argued that his domicile of origin was within the geopolitical
boundary of Pakistan. The appellant asserted that as the notification did neither deprive nor take away any vested right of the respondent, there had been no procedural defect for not serving a prior show cause notice on the respondent.

Decision:

The Appellant Division held that the notification canceling the citizenship of Golam Azam was not fair & reasonable and the appeal was dismissed.

Reasoning:

Substantial evidence in favor of the respondent’s animo revertendi was found. While the repatriation of Bangladeshi citizens from Pakistan began in September 1973, staying in Pakistan could not be a basis for doubt according to Article 3. The Court also opined that a passport cannot be regarded as conclusive evidence of citizenship of its holder. It was held that staying abroad for other good reasons would not debar the respondent from the stipulation of Article 2. The notification being passed in absence of the respondent was also contrary to the rule of audi alteram partem.

Comments:

Citizenship is the precursor of all fundamental rights and one becomes disqualified as a citizen when he has opted for a domicile of choice with specific intention of living there permanently.