Of honours from foreign states

On 26 January 2013 the news broke that the Government of India had selected Jharna Dhara Chowdhury for the Padma Shri, the fourth highest civilian award of the Republic of India. She is a Bangladeshi citizen resident in Noakhali, where she is the Secretary of the Gandhi Ashram Trust. Foreign state awards had already become a topic of some controversy in connection with other Bangladeshi citizens, who had not (or apparently had not) sought permission from the President of Bangladesh before accepting such awards. The President's office had written to some of them.

The starting point for any discussion has to be Article 30 ("Prohibition of foreign titles, etc") of the Constitution of Bangladesh, which says: "No citizen shall, without the prior approval of the President, accept any title, honour, award or decoration from any foreign state."

The Constitution throughout has references to the "State" as a description of the sovereign entity that is the People's Republic of Bangladesh. Evidently, in referring to "any foreign state", Article 30 contemplates a definition of "state" that would apply equally to Bangladesh. The foreign award-giving "state" must exercise sovereign power over a territory and be able to conclude treaties with other sovereign states. Of course, from time to time there will be entities that exercise independent control over territories that are not accepted by Bangladesh or other sovereign states as having the legal right to exercise such independence. In Bangladesh and in other countries, any question in any such country as to whether a purportedly sovereign entity should be accepted as a foreign "state" is determined by a declaration from the Ministry of Foreign Affairs (by whatever name). If an award-giving foreign entity is not recognised as a sovereign state (or as its agent) by the Bangladesh Ministry of Foreign Affairs, then an award from such a foreign entity would not be caught by Article 30.

I should state at this point that I have some personal interest in this matter. My late father Ambassador AFM Abul Fateh, during his tenure (1976-1977) as High Commissioner for Bangladesh in the UK, received in February 1977 the Silver Jubilee medal along with some other ambassadors. The medal was awarded by the British Queen, acting as sovereign head of a sovereign state. He informed the Ministry of Foreign Affairs of the award. The Ministry, of course, was the channel appropriate for him to the President, and is the agent of the President in relations with foreign states. My father was a citizen at that time only of Bangladesh. Likewise, Jharna Dhara Chowdhury is a citizen only of Bangladesh. Since the award of the Padma Shri is by the President of India acting on behalf of the Republic of India, a sovereign state, to respect Article 30 there should be an application by her to the President of Bangladesh for approval of her acceptance.

The distinction should, however, be understood between what is an award by a sovereign state and what is not. The elevated nature of an award-giving institution or its membership is no indication that it is a sovereign state.

Transnational entities such as the Islamic Development Bank are associations of sovereign states and their representatives have privileges in Bangladesh akin to the representatives of sovereign states. But these bodies are not considered sovereign states by anyone, if only because they have no territory. An award by the Islamic Development Bank, therefore, would not be caught by Article 30. The Republic of Somaliland exercises purportedly sovereign authority over the former British Somaliland, but it is not accepted as a sovereign state by Bangladesh. Therefore an award by Somaliland would also not be caught by Article 30. The American State of Delaware is called a "state", as is the Indian State of Nagaland, and the Australian State of Tasmania, and each of them exercises governmental authority over a territory. But none of them has sovereign authority or acts as the agent of a sovereign entity. Each is a province or constituting unit within a federation, and is not a sovereign state. Therefore an award by Delaware or Nagaland or Tasmania can readily be taken up by any Bangladeshi citizen.

There are some august institutions which enjoy the patronage of, and may even be headed by, the heads of their host states and which bestow awards of great prestige. For example, the Académie Française (French Academy) was established in the 17th century in France under royal patronage, is universally accepted as the leading body on French language and culture, and is headed by the French President. Members of the Académie  are invested by the French President, and on behalf of the Académie the French President presents its prizes in the arts to distinguished recipients. But the Académie is not an agency of the French state, and its prizes are no more awards of the French state than the Oscars presented annually by the Academy of Motion Picture Arts and Sciences are awards of the United States. Therefore an award by the Académie Française, or an Oscar, can readily be taken up by any Bangladeshi citizen.

However, there are persons who are citizens not only of Bangladesh but also of one or more other sovereign foreign states, and who have received awards from such foreign states. As will be seen, their position is not necessarily the same as of those who are citizens only of Bangladesh. Before looking at their position, I again should state that I have some personal interest. I have citizenship both of Bangladesh and the United Kingdom, although it is extremely unlikely that I will ever receive an honour from either State. I acquired my British citizenship after a change in the relevant Bangladeshi law allowed such dual citizenship. I will come to the details of the relevant law in a moment. I should also state that this change in law came about upon the recommendation to the Bangladesh Government of my father, noting the wishes of Bangladeshis settled in the UK not to be forced to choose between citizenship of Bangladesh and of the UK.

The code of citizenship for Bangladesh  is to be found in the Bangladesh Citizenship (Temporary Provisions) Order 1972 (PO 149 of 1972), which came into force on 15 December 1972. This code, being the later law, overrode the earlier Citizenship Act 1951 inherited from Pakistan, although the 1951 law has never expressly been repealed in Bangladesh. Despite the description as "Temporary Provisions", the BCTPO 1972 subsists to this day. (The French have a saying: "There is nothing more permanent than the temporary.") On 11 February 1978 the BCTPO 1972 was amended, by the insertion of a new Article 2B, to allow any person lawfully to have Bangladeshi citizenship at the same time as citizenship of any country in North America or Europe or of any other country which the Government might gazette for this purpose.

What does being the citizen of a country entail? In the case of Bangladesh vs Professor Golam Azam (1994) 23 CLC (AD) and 46 DLR (AD) 192, and as part of a unanimous Supreme Court, the following was stated by Mustafa Kamal J (later Chief Justice), in a judgment approvingly mentioned by two of the other three judges: "It is true that citizenship is the status of being a citizen and that a citizen is one who, under the constitution and laws of a particular State, is a member of the political community, owing allegiance… and being entitled to the enjoyment of full civil rights."

The offer of an honour or other award by a sovereign state to one of its citizens is a mark of the esteem that state has for a member of its "political community".  In principle, it must be the case that a person with "full civil rights" should be able to take up unhindered the offer of an honour or other award from a sovereign state to whom he/she is "owing allegiance", offered to that person as "a member of the political community" of that state. Indeed, Article 30 is found within Part III of the Constitution, headed "Fundamental Rights", presumably because the authors of the Constitution regarded the right to receive awards from a state as a fundamental right of a citizen of that state. The citizenship laws of Bangladesh since 11 February 1978 have accepted that a citizen of Bangladesh lawfully may be a citizen of certain other sovereign states, possessing all the rights that entails. Therefore a person who receives an award from (and is a citizen of) one of those states should be considered as receiving that award not as a citizen of Bangladesh subject to Article 30 but as a citizen of that foreign state.

A contrary proposition would need to be tested against one of the fundamental principles of the state policy of Bangladesh. Article 25 ("Promotion of international peace, security and solidarity") within Part II ("Fundamental Principles of State Policy") of the Constitution provides: "The State shall base its international relations on the principles of respect for national sovereignty and equality, non interference in the internal affairs of other countries, peaceful settlement of international disputes, and respect for international law and the principles enunciated in the United Nations Charter…" The award of honours on its citizens is one of the expressions of "national sovereignty" of an independent country. When dual citizenship of Bangladesh and another country is accepted in Bangladeshi law, external hindrance by Bangladesh of such award by such other country would constitute unwarranted "interference in the internal affairs" of that other country, contrary to the state policy of Bangladesh.

It therefore follows that no award by a foreign sovereign state to one of its citizens would be subject to Article 30 if both of the following conditions apply: that person is a citizen also of Bangladesh, and that foreign state is recognised as a state approved for dual citizenship under Article 2B of the  BCTPO 1972.

What could happen to a Bangladeshi citizen were he/she to accept an award from a foreign state of which he/she is not a citizen, or of a foreign state not accepted for dual citizenship?

There is no offence in the general laws of Bangladesh dealing with the acceptance of an award from a foreign state. Nor is there any offence created in the Constitution to deal with a failure to respect Article 30. There is an offence ascribed of sedition by Article 7A ("Offence of abrogation, suspension, etc of the Constitution") of the Constitution: "If any person, by show of force or use of force or by any other un-constitutional means" undermines "this Constitution or any of its articles". But if any Bangladeshi citizen accepts an honour from a foreign State of which he is not a citizen, or of a foreign state not approved for dual citizenship under Article 2B of the  BCTPO 1972, it is extremely difficult to see how this acceptance could ever be effected via "force or by any other un-constitutional means". The receipt of the foreign State honour would be unconstitutional in Bangladesh, but the means (such as purchase and use of an airline ticket to travel to the foreign state in order to receive the honour) could not be unconstitutional. The Government could apply to the Courts for an injunction to stop what quite clearly would be a breach of public policy, but the prospects of such an application, when no person could be harmed by such a breach, must be doubtful.

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Anatul Fateh is an Advocate of the Supreme Court of Bangladesh, and Head of Chambers of a law firm in Dhaka. He is based in London and was formerly a practising barrister in England.