Sadaqat Khan v Chief Election Commissioner

Parties (including notable third parties)

Md. Sadaqat Khan (Fakku) and others (Petitioners); The Chief Election Commissioner, Bangladesh Election Commission and others (Respondents)

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Summary of Facts

The eleven Petitioners were adult Urdu-speaking people residing in two refugee settlements at Mirpur, Dhaka which belonged to a wider network of 116 ‘Geneva Camps’ established in 1972 by the International Committee of the Red Cross for Urdu-speaking people who became stranded in Bangladesh after the 1971 Liberation War.

The Petitioners’ ancestors migrated from various parts of India to what was then East Pakistan in or around 1947. They were accepted as nationals of Pakistan, and many obtained public employment there. After Bangladesh gained independence, large numbers of Urdu-speaking people were placed in camps pending possible repatriation to Pakistan. Although many camp residents subsequently integrated into Bangladeshi society, the Election Commission systematically excluded those still living in the camps from the national voter registration drives conducted in 2007, on the basis that they were not nationals of Bangladesh.

The Petitioners asserted that, by operation of the Citizenship Act 1951 and the Bangladesh Citizenship (Temporary Provision) Order 1972 (“PO 149”), they were Bangladeshi nationals by birth and residence. The Petitioners relied in particular on a ministry memorandum dated 30 September 1976 confirming that position for their family. The respondents said that the veracity of the 30 September 1976 could not be ascertained.

The Respondents – principally the Secretary of the Ministry of Home Affairs – filed an affidavit contending that the Petitioners and Urdu-speaking people living in the ICRC camps were not Bangladeshi nationals by residence or birth and were therefore not entitled to be enrolled on the national voter list. The Respondents further submitted that because the law permitted only Bangladeshi nationals to be enrolled on the national voter list, it would be unlawful to register the petitioners given their status as non-nationals.

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Legal Arguments

The central issue of the case was whether Urdu-speaking persons residing in the ICRC-run Geneva Camps (specifically the petitioners and similarly situated individuals) were Bangladeshi nationals entitled to be entered on the electoral roll and issued National Identity Cards.

The Petitioners argued that, under the Citizenship Act 1951 and PO 149, they were Bangladeshi nationals by birth and residence, as they or their ancestors were permanent residents of the territory now comprising Bangladesh as of 25 March 1971, and had continued to reside there. They emphasised that the law did not discriminate on the basis of ethnicity or language, and that they had not incurred any disqualification under Article 2B of PO 149, as they had not sworn allegiance to Pakistan.

In support of their position, the Petitioners cited legal precedent, including the unreported decision in Mohammad Abid Khan and others v. Bangladesh and others (Writ Petition No. 3831 of 2001), where similarly situated Urdu-speaking individuals were recognized as nationals and enrolled as voters, and Mukhtar Ahmed v. Bangladesh (1982) 34 DLR 29, in which the court held that a person who had not incurred any disqualification under the law was entitled to Bangladeshi nationality by operation of law.

The Respondents, primarily the Secretary of the Ministry of Home Affairs, argued that the Petitioners were ‘stranded Pakistanis’ whose residence in the camps was temporary and who were not entitled to Bangladeshi nationality. They contended that, under section 4(b) of the Citizenship Act 1951 and article 2B(1)(i) of PO 149, individuals who owe or have affirmed allegiance to a foreign state, specifically Pakistan, were disqualified from Bangladeshi nationality.

The Respondents maintained that the petitioners or their ancestors had expressed such allegiance, thereby excluding them from Bangladeshi nationality and the right to be enrolled as voters. They further asserted that the Petitioners should have exhausted the statutory remedies available under the Electoral Roll Ordinance 2007 before seeking relief through a writ petition. The Respondents did not cite any binding legal precedent in support of their position but challenged the authenticity of the 1976 memorandum relied upon by the petitioners and maintained that any inclusion of non-nationals in the voter list would be unlawful.

Outcome

The Court held that the Petitioners were nationals of Bangladesh by birth and residence and therefore entitled to be enrolled as a voter on the electoral roll and receive a National Identity Card.

Key to the Court’s finding were the following legislative provisions:

• Article 6 of the Constitution provided that nationality of Bangladesh shall be determined and regulated by law;
• Article 2 of the Bangladesh Citizenship (Temporary Provision) Order 1972 provided that a person would be deemed to be a Bangladeshi national in circumstances where:

(i) their father or grandfather was born in the territory now comprising Bangladesh and who was a permanent resident of such territories on 25 March 1971, and they continue to reside in Bangladesh; or

(ii) they were a permanent resident of the territory now comprising Bangladesh on 25 March 1971 and continue reside in Bangladesh and is not otherwise disqualified for being a national by or under any law for the time being in force.

• Article 2B of the Bangladesh Citizenship (Temporary Provision) Order 1972 set out the circumstances that would disqualify an individual from acquiring Bangladeshi nationality, which includes where an individual “(i) owes, affirms or acknowledges, expressly or by conduct, allegiance to foreign state”

After considering the above legislation, the Court held that all Urdu-speaking people, wherever they lived in Bangladesh, who meet the requirements for Bangladeshi nationality set out in Article 2 of PO 149 had acquired nationality of Bangladesh in accordance with the law and ‘no functionary of the Republic can deny such rights of the Urdu-speaking people who want to be enrolled as voters’.

The Court’s decision did not include the people characterised as ‘stranded Pakistanis’ because they did not meet the requirements for Bangladeshi nationality by operation of Article 2B(1) of PO 149 – specifically because they owed allegiance to a foreign state (Pakistan) – and therefore the Election Commission was under no obligation to enrol them.

The Court did not order Election Commission to register all Urdu-speaking people on the electoral roll because the petitioners did not represent all Urdu-speaking people, and the law did not require or permit that an individual be registered as a voter against their will. It was therefore incumbent upon individuals to enrol as voters, should they wish to do so.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
Domestic	Constitution of Bangladesh	Articles 6, 102, 122(2)
Domestic	Citizenship Act, 1951	Sections 3, 4, 5, 6, 8, 9, 10
Domestic	Bangladesh Citizenship (Temporary Provision) Order, 1972 (President’s Order No. 149 of 1972)	Articles 2, 2B

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Naimul Muquim, ‘The Urdu-Speaking Community of Bangladesh: Forgotten Denizens or Putative Citizens’ (2022) 37 Emory International Law Review 689

• Muquim examines to what extent   Urdu-speakers are now able to enjoy rights as Bangladeshi nationals. It also   assesses the government of Bangladesh's existing policies and the   relationship between citizenship/nationality and the law, comprising of both   domestic and the international legal frameworks linked to the protection of   the Urdu-speaking community's rights.
• In considering Sadaqat   Khan v Chief Election Commissioner, Muquim explains the significance of   the decision in finding that since the Urdu-speaking community had been   residing in Bangladesh since before and after its liberation, they were   considered nationals of Bangladesh by birth.

Kamrul Hasan Arif, ‘The Status of the Bihari Community in Bangladesh under Domestic and International Law’ (2018) 25 International Journal on Minority and Group Rights 664

• Arif seeks to analyse the status of   the Bihari community (which is the term given to those experiencing   statelessness in Bangladesh by virtue of being ‘stranded Pakistanis’ as   described by the Court – i.e., those that identify as or owe allegiance to   Pakistan), and the role of domestic courts and international organisations in   addressing Bihari statelessness.
• Arif briefly considers the decision   in Sadaqat Khan v Chief Election Commissioner and notes that despite   its significance for those who wish to attain Bangladeshi nationality, it has   not addressed the ongoing statelessness of the Bihari.