Principles of natural justice hfts been violated in not issuing a show cause notice to Golam Azam before the notification disqualifying him for a citizenship was served, said Barrister A R Yusuf.

He was acting on behalf of the petitioner yesterday at the hearing of the Writ petition challenging the cancellation of the citizenship of Jamaat leader Golam Azam at the single-bench of the High Court Division comprising Justice Anwarul Huq Choudhury.

"The principles of natural

justice was created by the creator himself; that one must have a hearing before he is condemned," observed Barrister Yusuf, adding "even God himself did not pass a Judgement on Adam' before giving him a hearing.

At the sixth day's hearing, which began at 2:10pm, the counsel for the petitioner completed placing the judgement delivered by Justice Ismalluddin Sarkar during the earlier hearing of the petition last year.

On that occasion, Justice Sarkar and Justice Badrul Islam Choudhury gave a split verdict

Going through the judgement of Justice Sarkar, Barrister Yusuf claimed that Article 3 of the Bangladesh Citizenship Temporary Order (PO-149 of 1972), under which the disqualification notice was Issued, could not be applied retrospectively.

To which, the court enquired, "Where is the retro-spectivlty of the government order?"

The government order itself is not retrospective, replied Barrister Yusuf, but Justice Sarkar is saying that it

Article 3 of the Temporary Order states: "In case of doubt as to whether a person Is qualified to be deemed to be a citizen of Bangladesh under Article 2 of this order; the question shall be decided by the government, which decision shall be final".

Article 2 places three conditions required lo be deemed to be a citizen: that a person or his father or grandfather was born in the territory comprising Bangladesh, that he was a permanent resident on March 25,1971 and that he continued to remain so resident.

Noting that accrued rights "cannot vanish". Justice Choudhury said."When the legislators make a law with retrospective effect they are supposed to know the consequences".

Barrister Yusuf argued that the vested rights of person could not be taken away by retrospective effect of a law.

The court asked. "How do you go to the vested rights? He replied that on the day before the issuance of the disqualifi cation notice on April 18.1973, Azam was deemed to have been a citizen. The court noted that the Bangladesh citizenship »ct of 1951 was also In force at the time through the law's adaptation order

The Counsel for the pctl tioner said that government order specified Article 3 of Temporary Order and did not take recourse to the Act of 1951.

Barrister Yusuf quoted Justice Sarkar a* stating In hl* judgement thal the Citizenship Act of 1951 was repeated by implication on the coming of the Temporary Order.

"If it is repealed by Implica Hon the ptllloncr has no vested rights, ihc court ob

llowcvt r i he counsel for i petitioner asserted thal all rights continue" while cit-ii .g Scellon 6 of ihe General

He added that unless

ment can use delegated power "only in making orders prospective in nature, my offence has to be decided as per the laws prevalent at the time".

He went on to quote Justice Sarkar as saying "in view of the discussion fibout It. ft cannot be said that he (Azam) was a citizen of Bangladesh prior to the making oT the impugne notification on April 18.1973 ”.

Justice Sarkar also said, he added, that there was no malafidc in issuing of the notification considering the fact that none of the other 38 disqualified for citizenship were members of Jamaat and that general elections were held in the country on March 1973 before the notification was issued.

Barrister Yusuf contended that "Article 3 vests government with a very wide power but does not provide a guideline as to how to remove doubt with respect to Article 2".

The counsel for the petitioner said that Justice Sarkar In his judgement held that Article 2(b). which refers to conduct and relates to renunciation by a citizen, is not applicable as it was incorporated after the notification was issued to the petitioner.

Justice B 1 Choudhury also concurred with this view, he added.

Justice Sarkar held that inclusion of the petitioner tn the voters' list was a "txjnaftde mistake". Simply because he was included In the Voters' list does not ipso facto make him a citizen of Bangladesh."

Citing the case against declaring Jamaat-e-lslaml as an illegal association ana Involving Abul Ala Moududl (17 DLR of Pakistan Supreme Court), the counsel for the pe tltioner said. Justice Sarkar ruled that the principles of natural justice was not violated In not Issuing a show cause notice to the petitioner.

However. Barrister Yusuf contended that the case dealt on the subject of striking down of laws and that Chief Justice Cornelius, on that occasion, had struck down the order against Jamaat as unconstltu-Donal.

"To that extent Justice Sarkar was totally erroneous and it was misquoted and out of context." he added.

The court observed that It depends on the situation of cv cry case whether a show cause notice I* to be given or not.

Barrister Yusuf argued that If by any action of the authorities any person Is going to be adversely affected then the principles of natural Justice demands the Issuance of a show cause notice. "No person shall be condemned unncard, the procedure is important

The court enquired If the counsel for the petitioner

meant that for fairness the petitioner should have been asked.

Replying in the affirmative. Barrister Yusuf said."Notice could have been served at the permanent address (of the pc tltioner) and mere not knowing his whereabouts is not enough".

He went on to quote Justice Sarkar as saying, on the question that the petitioner was deprived of his natural rights, that it was not a case of cancellation of one's citizenship as petitioner was not residing in Bangladesh on the date the impugne notification was issued by the government.

As there is no vested right no show cause notice required." said Justice Sarkar.

At this point. Barrister Yusuf noted that the government had issued a gazette notification to the petitioner on July 15. 1972 on collaboration charges asking him to surrender within a specified date or else his property would be confiscated. If the government could provide a gazette notification. he noted, then why couldn't the government serve a show cause notice to the petitioner?

In response to a question by the court, Barrister Yusuf wenl on to elaborate the points of difference between the two judges, namely that the petitioner was a citizen in accordance with the provisions ol Article 2 (i) of the Temporary Order, about the application ol the principle of natural Justici and the violation there of and whether the petitioner was guilty of delay and latches Ir coming to the court.

Acting on behalf of the state. Attorney General Aminui Haque pointed out that Artlcli 3 of the Temporary Order hac never been debated in courl before and that resolution ol doubt had come to the courl for the first time.

However, he added that the doubt cannot be resolved through Writ Jurisdiction bul through a legal suit.

Barrister Yusuf noted that on the point of conduct and or Ihe virus of Article 3 there wai no difference between the two Judges.

He submitted that the third Judge had jurisdiction only tc hear the points of differences.

On the point of delay by tlx pct I tioner in coming to court, Barrister Yusuf noted that the petitioner "never attempted" to come to Bangladesh from London until the change ol government in 1975 as the Awami Ix-aguc government was "Inimical" towards the pctl tioner because of 'serious po HticaJ differences" and that the persona, safety of the petl tioner was at stake

At this stage the hcarinf was adjourned till 2pm today.