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Bangladesh Vs. Professor Golam Azam and Others, 1994, 23 CLC (AD)

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Bangladesh Vs. Professor Golam Azam and Others, 1994, 23 CLC (AD) Bangladesh Vs. Professor Golam Azam and others, 1994, 23 CLC (AD) Supreme Court Appellate Division (Civil) Present: M Habibur Rahman J ATM Afzal J Mustafa Kamal J Latifur Rahman J Bangladesh .................................Appellant Vs. Professor Golam Azam and others…………………Respondents Judgment June 22, 1994. Lawyers Involved: Aminul Huq, Attorney-General, (AF Hasan Ariff, Deputy Attorney-General, and B Hossain, Deputy Attorney - General with him) 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. Civil Appeal No. 58 of 1993 (From the judgment and order dated April 22, 1993 passed by the High Court Division in Writ Petition No. 1316 of 1992) Judgment: MH Rahman J.- This appeal by special leave at the instance of the Government is directed against the judgment and order dated April 22, 1993 of the High Court Division passed in Writ Petition No. 1316 of 1992. Profession Golam Azam, hereinafter referred to as the respondent, instituted that writ petition. The High Court Division upheld his contentions that Notification No. 403-Imn/III dated Dhaka April 18, 1973, so far as it related to him and the show cause Notice No. HH: MA(Bhai-l)/134 dated March 23, 1992 of the Ministry of Home Affairs served on him were without lawful authority. 2. The material portion of the notification reads as follows: "Whereas it appears that the persons specified below have been staying abroad since before the liberation of Bangladesh and by their conduct cannot be deemed to be citizens of Bangladesh: And whereas the said persons have continued to be citizens of Pakistan: Now, therefore, the Government declares under Article 3 of the Bangladesh Citizenship (Temporary Provisions) Order 1972 (President's Order 149 of 1972), that the persons specified below do not qualify themselves to be the citizens of Bangladesh .......................” Thirty-nine persons were mentioned in the notification. The respondent's name was at serial No. 3: "Professor Golam Azam, s/o. Golam Kabir of Birgaon, Police Station Nabinagar, District Comilla and of Elephant Road, Maghbazar, Dhaka." 3. The respondent claims that his father, grand-father and he himself were all born in this country. He became the Ameer, President, of the Jamaat-e-Islami of the then East Pakistan in 1969. He was a permanent resident in Bangladesh on March 25, 1971 and he continued to be so resident on 22 November 1971 when he went to Lahore for attending his party's Central Working Committee meeting. As the war broke out between India and Pakistan he wanted to come back home. On December 3, 1971 the plane in which he was returning to Dhaka was diverted at first to Colombo, and then to Jeddah. After a few days the respondent was sent back to Karachi along with other passengers. He had to remain in Pakistan against his will for some months as the Government of Pakistan did not allow any Bangladeshi citizen to leave Pakistan. For making contact with his family he tried to go to London in March, 1972, but he failed to obtain any travel document. He arranged a Pakistani passport for going to Saudi Arabia for performing Hajj in December, 1972. During Hajj he came to know from fellow-pilgrims from Bangladesh that a political mispropaganda was running high in Bangladesh against him because of his party's opposition to the Awami League, the party in power in Bangladesh, and if he went back home his life would be in danger. In the first week of April, 1973 he went to London. From a copy of the Bangladesh Observer he came to know about the Notification dated 18 April 1973. No prior notice was served on him. On January 17, 1976 the Government invited applications from those persons whose citizenship had been cancelled by the previous Government for restoration of their citizenship. From 20 May 1976 the respondent sent several applications to the Secretary, Ministry of Home Affairs, the Chief Martial Law Administrator and the President, but without any result. On 11 March 1978 the Government turned down his mother's application to restore his citizenship, but he was allowed to come to Bangladesh on 11 July 1978 to see his ailing mother with a visa for three months. His visa was extended twice. For avoiding a possible deportation, on 8 November 1978 he filed an application for restoration of his citizenship to the Ministry of Home Affairs and surrendered his Pakistani passport. On 27 May 1980 the Minister of Home Affairs informed Parliament that the respondent's application for restoration of citizenship was pending for decision of the Government. On being asked by the Immigration Section of the Ministry of Home Affairs the respondent submitted on 30 April 1981 an affidavit with an oath of allegiance to Bangladesh. His name was included in the voters' list in 1983 and also in 1990. As late as 12 January 1992 the Home Minister informed Parliament that on 9 November 1978 the respondent sought permission to stay in the country till a decision was taken on his citizenship and that no such decision had yet been taken. Suddenly on 23 March 1992 at 3-00 AM the respondent was served with a notice to show cause by 10.00 AM on the same day as to why be, being a foreigner and disqualified to be a citizen of Bangladesh by the Notification dated April 18, 1973, should not be deported from Bangladesh for becoming the Ameer of Jamaat-e-Islami of Bangladesh, violating Article 38 of the Constitution. In his reply the respondent asserted his right as a citizen of Bangladesh and requested for a personal hearing. He was, however, arrested and detained at the Dhaka Central Jail by an order of detention dated 24 March 1992 under section 3 of the Foreigner's Act, 1946. 4. The case of the government, the appellant before us, is that the respondent had been staying abroad since before liberation of Bangladesh as a citizen of Pakistan; that for his anti-liberation role and active collaboration with the Pakistan Army in raising irregular forces like the Rajakers, Al-Badrs and Al-Shams and placing his party, the Jamaat-e-Islami, at the disposal of the Pakistani Army, and because of his conduct during and after the liberation war, and his voluntarily residing in Pakistan as a citizen of Pakistan he could not be deemed to be a citizen of Bangladesh. The Rajakars, the armed wing of the respondent's party, were engaged in arson, looting and rape and other genocidal activities. The respondent was himself associated with the Pakistani Army Officers. A photograph, published in Dainik Purba Desh on April 6, 1971 showed him sitting with General Tikka Khan. The respondent took advantage of the Hajj congregation in Saudi Arabia to orchestrate his anti-Bangladeshi activities. He lobbied actively to dissuade the Muslim countries from giving recognition to Bangladesh. In 1972 he organised a campaign throughout Pakistan so that Bangladesh might not be recognised as an independent State. In the same year he attended an Islamic Youth Conference in Riyadh where he made an appeal for liberating and recapturing East Pakistan and organised a Committee for recapturing East Pakistan in London. In 1973 he went to Bengazi, Libya where the Conference of the Foreign Ministers of the Islamic World was held and made an appeal there not to recognise Bangladesh as an independent State. From 1973 to 1976 the respondent met the King of Saudi Arabia several times and prevailed upon him not to recognise Bangladesh or give any assistance to her. On 23 March 1992 he was lawfully asked to show cause why he should not be externed from Bangladesh and why other legal actions should not be taken against him. 5. In his affidavit-in-reply the respondent reiterated his assertions made in his writ petition and gave a denial to all the material allegations made in the Government's affidavit-in -opposition. The Jamaat-e-Islami had nothing to do with the Razakars, Al-Badr or Al-Shams. The respondent did not make any campaign against Bangladesh nor did he try to dissuade other Muslim countries or the King of Saudi Arabia from giving recognition to Bangladesh. He did not organise any organisation like the East Pakistan Recovery Committee in Lahore or in London. He used the Pakistani passport as a travel document and at the earliest opportune time he surrendered that passport to the Government and also affirmed his allegiance to Bangladesh by an affidavit. 6. In the High Court Division the matter was at first heard by a Division Bench comprising Mohammad Ismailuddin Sarkar and Badrul Islam Chowdhury, JJ. Because of difference of opinion the matter was referred by the learned Chief Justice to Anwarul Haq Chowdhury J. The latter agreed with the opinion of Badrul Islam Chowdhury J and declared the notification and the show cause notice to have been made without lawful authority. By the impugned judgment the High Court Division upheld the respondent's contentions that he was born in this country and that he was a permanent resident on the midnight of 25/26 March 1971 and that or the period of his being stranded in Pakistan he was to be deemed to be a permanent resident under the proviso to Article 2; that the allegations that the respondent's indulged in anti-Bangladesh activities were irrelevant; that the notification was bad for violation of principle of natural justice; and that the respondent' writ petition was not bad for laches and delay.
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