Saad Rasool
5 June 2012
On May 25, the Supreme Court of Pakistan suspended Farahnaz Ispahanis membership of the National Assembly on the grounds of dual citizenship (of Pakistan and the United States). A three-member bench, headed by the chief justice, observed that Ispahani could not participate in National Assembly proceedings on account of her dual nationality. And just yesterday, as a follow-up, Rehman Maliks Senate membership was also suspended by the apex court, on account of him holding dual nationality of United Kingdom. Crux of the issue, as discussed by the Supreme Court, has been that those who owe fidelity to another country cannot be entrusted with adequately safeguarding the interests of Pakistan.
The case raises a number of issues worth consideration. Is dual nationality illegal per se? Or is it only a bar for contesting and/or serving as a member of the parliament? Does the law, as it stands today, address the very valid concern that those whose fidelity to Pakistan is questionable should not be members of the parliament? Or, do the law and constitution, while attempting to address this issue, miss the point entirely?
The legal provisions underlying this issue must be considered. First, it needs to be clarified that citizenship, in Pakistan, is governed by the provisions of The Citizenship Act, 1951 (II of 1951). In particular, section 14 of The Citizenship Act, 1951 lays down the law regarding dual citizenship or nationality. Barring a few exceptions (relating to age and marriage) this section stipulates that a person shall cease to be a citizen of Pakistan upon acquiring another nationality. However, subsection (3) of section 14 states that this bar would not apply to any person who is also the citizen of the United Kingdom and Colonies or of such other country as the Federal Government may, by notification in the official Gazette, specify in this behalf. In essence, this means that acquiring a second nationality does not strip any person of his/her Pakistani nationality, so long as that other (acquired) nationality is of a country that the Federal Government has so notified.
Fair enough. Dual nationality, therefore, is not impermissible in all cases. What, then, is the problem in cases concerning dual nationality and membership of the parliament? Studying the Constitution of Pakistan in particular Article 63 (the disqualification provisions for members of the parliament) is helpful in this case.
Article 63 (1)(c) of the Constitution states that a person shall be disqualified from being elected or serving as a member of the parliament if he/she ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State. The intention of the legislature here, as apparent from comments of the Supreme Court in the Ispahani case, is that if you have acquired citizenship of a foreign state (or given up/lost your Pakistani citizenship) there is reason to believe that your sense of belonging and allegiance to Pakistan is so weak as to be unworthy of being a member of the parliament. Put another way, the idea of citizenship has been equated with a sense of patriotism. And to the extent that you acquire another citizenship, your sense of patriotism is unworthy of elected office.
In the case of a person who ceases to be a citizen of Pakistan, the constitutional provision makes sense. However, in the second part of the provision, the language does not bar anyone who has dual nationality no. The bar is only against someone who acquires a foreign citizenship. A number of issues flow from this.
First, the provision expressly disqualifies a person who acquires a foreign nationality. However, conversely, the bar of disqualification from being a member of the parliament does not affect a person who was born a foreign national and later acquires Pakistani citizenship. Such a person is carefully carved out of the disqualification clause, and such persons loyalty to the State is (apparently) deemed stronger than someone who does the reverse. Now, the natural example of someone acquiring Pakistani nationality would be a person of Pakistani origin, who was born abroad and later becomes a citizen of Pakistan. However, expanding the logic a little, even a foreign national (say some guy named Raymond Davis, for example) who acquires Pakistani citizenship is not disqualified under Article 63(1)(c) per se.
Second, even if a stretched-out argument is made to suggest that the acquiring of Pakistani nationality is a declaration of loyalty to the State of Pakistan and acquiring a foreign nationality is the opposite thereof, the logic falls apart when applied to real-life examples. For example, Javed Ahmed Ghamdi, who has had to flee Pakistan after his criticism of the Salmaan Taseer murder, may have to (out of compulsion) seek citizenship of another country to live there (for his safety). In such a case, a person like Ghamdi (despite his apparent love for Pakistan and for Islam) will be disqualified from seeking public office under Article 63(1)(c). On the other hand, if some Afghan militant, who may even have fought against the Pakistan army, subsequently takes refuge in our country for long enough to become its citizen, can easily make a bid for elected office. Is Ghamdis loyalty and fidelity to the State of Pakistan less than that of such a militant? Does Article 63(1)(c), the way it is drafted at present, address the issue of loyalty to the State of Pakistan? Does it accurately measure a persons sense of patriotism?
Third, it must also be asked whether holding a passport from a particular country alone is an appropriate measure of an individuals loyalty and patriotism to that State? Should other factors not trump, or at least supplement, the issue of nationality in measuring an individuals patriotism? What about a person who acquires a foreign citizenship but has all his/her assets in Pakistan, pays the full measure of taxes on such assets and generates employment in our economy, vis-à-vis someone (say Asif Zardari or Nawaz Sharif) who is not a foreign national but has his/her assets abroad? Who is more loyal, and therefore better suited, to being a member of the parliament?
There is no squabbling with the idea that members of the parliament should have an unimpeachable record of patriotism and loyalty to the state of Pakistan. But the truth is that there can be no objective measure of calibrating a persons loyalty to the State. Any attempt to ascertain loyalty and patriotism must necessarily look beyond the contours of a mere passport or nationality, towards a more comprehensive assessment. And the disqualification provision of Article 63(1)(c), as it reads for now, certainly does not address the issue.
The author is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School.
The views expressed by this blogger and in the following reader comments do not necessarily reflect the views and policies of the Dawn Media Group.
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