dual citizenship case

Nationality. Vs. Citizenship

Nationality and citizenship are two terms that are sometimes used interchangeably. Some people even use the two words citizenship and nationality as synonyms. But this is not true and they differ in many aspects.

First of all let’s see what nationality means. In simple words, nationality can be applied to the country where an individual was born.

Then what does citizenship stands for? It is a legal status, which means that an individual has been registered with the government in some country.

An individual is a national of a particular country by birth. Nationality is got through inheritance from his parents or it be called a natural phenomenon.

On the other hand an individual becomes a citizen of a country only when he is accepted into that country’s political framework through legal terms.

Well, No one will be able to change his nationality but one can have different citizenship. A Pakistani can have an American or Canadian citizenship but he cannot change his nationality.

Dual citizenship means that a person is a citizen of two countries at the same time. There are several different ways to acquire citizenship. Some people apply for citizenship to a second country, but others are dual citizens by circumstance. One example is a child born in a foreign country to parents who are U.S. citizens; such children are often automatically dual citizens. Dual citizens are not entitled to any special treatment and are subject to the laws of both countries equally.

Dual citizenship means that a person is a citizen of two countries at the same time. Each country has its own citizenship laws based on its own policy.

IN THE SUPREME COURT OF PAKISTAN 

(Original Jurisdiction) Present: 

Mr. Justice Iftikhar Muhammad Chaudhry, HCJ. Mr. Justice Jawwad S. Khawaja Mr. Justice Khilji Arif Hussain

Constitution Petition No.05/2012 and CMA Nos.2382, 2487, 2492, 2876 & 3446/12

Criminal Original Petition Nos.47,54, 65 & 71/2012

Syed Mehmood Akhtar Naqvi   PETITIONER  VERSUS  Federation of Pakistan through Secretary Law and others        Dates of hearing: 17 & 18 September, 2012

Order

IFTIKHAR MUHAMMAD CHAUDHRY, CJ. - This petition has been filed under Article 184(3) of the Constitution with the prayer that the Parliamentarians having dual citizenship may be declared to be disqualified in terms of Article 63(1)(c) of the Constitution read with section 14 of the Pakistan Citizenship Act, 1951.

2. The matter was taken up on various dates, during course whereof notices were issued to the following Parliamentarians allegedly having dual citizenship: -

1. Mr. A. Rehman Malik, Senator  2. Mr. Abdul Hafeez Sheikh, Senator  3. Mr. Sabir Ali Baloch, Senator  4. Ch. Zahid Iqbal, MNA   5. Ch. Iftikhar Nazir, MNA   6. Ms. Farah Naz Isfahani, MNA        7. Mr. Farhat Mehmood Khan, MNA   8. Khawaja Muhammad Asif, MNA  9. Ms. Anusha Rehman, MNA  10. Mr. Jamil Ahmad Malik, MNA   11. Sardar Shahjehan Yousaf, MNA   12. Mr. Muhammad Akhlaq, MPA   13. Mr. Tariq Mehmood Alloana, MPA  14. Dr. Muhammad Ashraf Chohan, MPA

15. Ms. Nadia Gabol, MPA  16. Ch. Waseem Qadir, MPA  17. Ch. Nadeem Khadim, MPA  18. Ms. Amna Buttar, MPA  19. Dr. Ahmad Ali Shah, MPA

3. Four Parliamentarians, namely, A. Rehman Malik, Senator (Sr.No.1), Ch. Zahid Iqbal, MNA (Sr.No.4), Ms. Farah Naz Isfahani, MNA (Sr.No.6) and Mr. Jamil Ahmad Malik, MNA (Sr.No.10) entered appearance through their counsel and contested the matter. The Parliamentarians at serial Nos.1, 6 and 10 were admittedly holders of dual citizenship, however, the Parliamentarian at serial No.4 against whom sufficient material was placed on record, could not substantiate that he was not in possession of dual citizenship.

4. This Court suspended the membership of some of the Parliamentarians detail of which is mentioned herein below: -

Sr.No.  Name  Date

1. Ms. Farah Naz Isfahani, MNA  25.05.2012

2. A. Rehman Malik, Senator  04.06.2012

3. Dr. Ahmad Ali Shah, MPA   13.06.2012

4. Mr. Muhammad Akhlaq, MPA   13.06.2012

5. Ms. Amna Buttar, MPA  13.06.2012

6. Ch. Zahid Iqbal, MNA  25.06.2012

7. Mr. Jamil Ahmad Malik, MNA  03.07.2012

8. Mr. Farhat Mehmood Khan, MNA 04.07.2012

9. Ms. Nadia Gabol, MPA 04.07.2012

5. M/s Muhammad Ashraf Chohan and Ch. Nadeem Khadim MPAs, after service prayed for adjournment by sending applications, which were allowed vide order of even date, but subsequently they did not deny the factum of having dual citizenship.

6. On the other hand, vide orders dated 13.06.2012 & 4.7.2012 proceedings against the persons at serial No.2, 3, 5, 8, 9, and 13 were dropped as no material was produced against them to show they possessed dual citizenship. Mr. Tariq Asad, ASC through CMA No. 2487 of 2012 claimed that Sardar Shahjehan Yousaf, MNA was the holder of dual citizenship, but when the latter contested the application through his counsel, the former withdrew his application and also tendered apology for levelling unsubstantiated allegation, therefore, no further proceedings are called for against Sardar Shahjehan Yousaf, MNA.

7. It is to be noted that Mr. A. Rehman Malik vide letter dated 19.4.2012 stated that he had renounced his citizenship of UK on 25.03.2008. Contents of the letter are reproduced herein below: -

“MINISTER FOR INTERIOR  Government of Pakistan Islamabad   SENATOR A. REHMAN MALIK

In Re: CONSTITUTION PETITION NO.5 OF 2012

Syed Mehmood Akhtar Naqvi, Petitioner Vs. The Federal Government through Secretary Law and others, Respondents

Please refer to your letter No.1(3)/2012-AGP dated 31st March 2012, concerning the above cited Constitutional Petition.

In this regard, it may be informed that by virtue of my continuous exile in UK for nine years due to political victimization and life threats in Pakistan, which is a matter of public record, I was granted British nationality but I never renounced my Pakistani citizenship as dual nationality is allowed under the Pakistani law. However, I renounced my British nationality on 25.03.2008 before I held public office. I thus do not hold any other citizenship including of British nationality except that of Pakistani citizenship.

Yours sincerely  -sd-  (Senator A. Rehman Malik)

8. It is noteworthy that along with the above letter, no re-enunciation form issued by the UK Border Agency was filed in terms of section 12(1) of the British Nationality Act, 1981 to substantiate the aforesaid claim. However, copy of letter dated 29.05.2012 issued by UK Border Agency was placed on record subsequently. The same is reproduced herein below: -

“Home Office, UK Border Agency  Mr. A. R. Malik Our Ref M751044  25 Norfolk Crescent your Re 

LONDON Date 29 May 2012  W22YS

Dear Mr. Malik   Renunciation of British Citizenship

I am writing to inform you are now registered as having renounced British Citizenship.

Enclosed is the Declaration of renunciation bearing a stamp of registration. This confirms the date on which you ceased to be a British Citizen under Section 12(1) of the British Nationality Act, 1981.

Yours sincerely,  -sd-  Mrs CS Hughes

Managed Migration, Nationality Group Department 73”

9. Plea on his behalf was that he had applied to renounce his British citizenship on 25.04.2008 before contesting the election of Senate of Pakistan, but the UK Border Agency did not issue certificate of renunciation of citizenship and subsequently when this matter came up before the Court, the Solicitor in UK namely, PHI (Legal) confirmed that he had renounced his British citizenship through his application dated 25.04.2008. Alongwith letter, copies of the application form and cheque of HSBC dated 25.04.2008 in the name of Accounting Officer, Home Office, issued by Dr. Saeed Rehman were also annexed. Whereas according to British Nationality Act, 1981, when a person files application form, declaring that he wishes to renounce his British citizenship or other British status, UK Border Agency returns the copy of application form officially signed and stamped, together with the documents filed with it. Despite repeated directions and opportunities granted to him, Mr. A. Rehman Malik chose not to file these papers in Court. This aspect of the case, however, shall be discussed in the detailed order.

10. Prima facie, it is apparent that Mr. A. Rehman Malik renounced his citizenship after the institution of the listed petition, as is evident from the contents of the letter dated 29.05.2012 wherein he was informed that he was “... now registered as having renounced British Citizenship”. In addition to it declaration of renunciation bearing stamp of registration was also enclosed in terms of legal provision noted therein. But, surprisingly the copies of this declaration were not placed on record despite the fact that the Court repeatedly directed for filing of the same. His membership as a Senator was suspended on 04.06.2012, therefore, on account of this reason he could not continue as the Interior Minister of the Government of Pakistan. However, he was appointed as Advisor to the Prime Minister.

11. It appears that to overcome the disqualification, he tendered resignation from the seat of Senate, which was accepted vide notification dated 11.07.2012 and against the vacant seat he participated in the fresh elections and was declared successful candidate vide notification dated 24.07.2012. In the meanwhile, he filed CMA No.3467/12 stating therein the following reason to resign from the membership of the Senate and to re-contest the election:-

“That serious allegations were levelled by the opposition and carried by various media that laws were being amended for him, therefore, in order to dispel any such perception and in larger interest of democracy the applicant resigned as Member of the Senate of Pakistan under his signature on 9th July, 2012. The Senate has issued a notification of acceptance of resignation on 11th July, 2012. The same are placed on record.”

Be that as it may, from the above facts it is established that having renounced the citizenship and upon issuance of letter dated 29.05.2012 by the Home Office, UK Border Agency, he was satisfied that disqualification proved against him stood removed, therefore, he should occupy his seat in the Senate free from any disqualification. In this behalf, it is to be noted that knowing well that his British Nationality/citizenship did not stand renounced, he made a false statement before the Court and the petitioner filed petitions for initiating proceedings for contempt of Court against him, which shall be considered separately later on.

12. The petitioner who appeared in person prayed to declare all the respondent Senators, MNAs or MPAs to be disqualified as they were holding those offices contrary to the provisions of Article 63(1)(c) of the Constitution. For convenience same is reproduced herein below:-

“63(1) A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament), if - (c) he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State”

13. Mr. Waheed Anjum, ASC has appeared as intervenor and submitted a list of elected representatives, including those who admittedly were not disqualified as they had no dual citizenship, as such proceedings against them were dropped, detail of which has been mentioned hereinabove. It is important to note that in respect of Mr. Tariq Mehmood Alloana, MPA from Punjab, the matter was seriously contested by Mr. Alloana, but Mr. Waheed Anjum, ASC stuck to his stance. But later on, it was found that on the basis of false information supplied by the FIA, he was seeking his disqualification for being an MPA and when the matter was further probed and information was collected from FIA, it transpired that attempt was being made to get him disqualified with ulterior motives. As such directions were given to the Additional Registrar of this Court to lodge a criminal complaint against the concerned officers of FIA who had supplied incorrect information. Accordingly, on the application of Additional Registrar, Supreme Court, the case was registered on 04.07.2012. Proceedings against Mr. Alloana were, therefore, dropped.

14. Learned Attorney General appeared on Court notice in terms of Order XXVIIA CPC and did not support the contentions of either the petitioner or of the intervenors.

15. It has been emphasized by Mr. Waseem Sajjad, Sr. ASC appearing for Ms. Farah Naz Isfahani and learned Attorney General that under Article 63(1)(c) of the Constitution, the phrases, namely, “... ... ceases to be a citizen of Pakistan”, or “acquires the citizenship of a foreign State” are to be read conjunctively and not disjunctively and the word ‘or’ appearing in between those phrases is to be read as ‘and’ because in such a situation, according to them, the Members of Senate, National Assembly and Provincial Assemblies having dual citizenship could continue in their offices without suffering from any such disqualification.

16. After hearing the petitioner, learned Attorney General, learned counsel for the respondents and others, taking into consideration the relevant provisions of the Constitution reproduced hereinabove and the material available on record, we are persuaded to hold that if a candidate suffers from pre or post disqualification under Article 63(1)(c) of the Constitution, no sooner such disqualification as envisaged under the said Article is attracted, becomes and is disqualified from being elected or chosen, and from being a Member of the Malis-e-Shoora (Parliament). These provisions have to be construed strictly by interpreting the same in view of the established principle of interpretation by assigning plain and simple meanings to the words and phrases used therein and avoiding any substitution thereof as the same is not within the ambit of this Court.

17. It is to be noted that a candidate, while filing nomination papers signs a declaration on oath to the following effect: -

“DECLARATION AND OATH BY THE PERSON NOMINATED

1. I, the above mentioned candidate, hereby declare on oath that, -

(i) I have consented to the above nomination and that I fulfill the qualifications specified in Article 62 of the Constitution and I am not subject to any of the disqualifications specified in Article 63 of the Constitution or any other law for the time being in force for being elected as a member of the National Assembly/Provincial Assembly.

18. The above declaration is applicable to the candidates of membership of Parliament and Provincial Assemblies, therefore, whoever signs such a declaration is meant to be fully aware of the constitutional provisions and after signing the said declaration if the same turns out to be false, he makes himself liable to be disqualified from being elected or chosen as Member of the Majlis-e-Shoora (Parliament) or a Provincial Assembly for making misstatement or concealment of fact, and also exposes himself to criminal proceedings contemplated under sections 193, 196, 197, 198 and 199 PPC.

19. In view of the constitutional provisions under Article 63(1)(c) & (p) of the Constitution read with section 99(1)(f) of the Representation of the People Act, 1976 it is to be seen as to whether their cases are to be dealt with by the Speaker/Chairman under Article 63(2) or by the Election Commission under Article 63(3) or are to be de-notified by the Election Commission after having been declared to be disqualified from being a member of Majlis-e-Shoora or Provincial Assemblies. This Court has earlier dealt with this matter in the case of Syed Yousaf Raza Gillani in Constitution Petition No. 40 of 2012, etc. He was convicted by a 7-Member Bench vide judgment dated 26.04.2012 for contempt of Court under Article 204(2) of the Constitution read with section 3 of the Contempt of Court Ordinance, 2003 and sentenced under section 5 of the said Ordinance and the reference filed by one Maulvi Iqbal Haider before the Speaker of Assembly to declare him disqualified under Article 63(2) was answered in the negative. Thereafter, the ruling of the Speaker was challenged before this Court through Constitution Petitions which were allowed and while dealing with the similar issue, the Court vide judgment dated 19.06.2012 held as under: -

“As a Bench of 7 Hon’ble Judges vide judgment dated 26.04.2012 followed by the detailed reasons released on 08.05.2012 has found Syed Yousaf Raza Gillani guilty of contempt of Court under Article 204(2) of the Constitution of the Islamic Republic of Pakistan, 1973 read with section 3 of the Contempt of Court Ordinance, 2003 and sentenced him to undergo imprisonment till rising of the Court under section 5 of the said Ordinance, and since no appeal was filed against this judgment, the conviction has attained finality. Therefore, Syed Yousaf Raza Gillani has become disqualified from being a Member of the Majlis-e-Shoora (Parliament) in terms of Article 63(1)(g) of the Constitution on and from the date and time of pronouncement of the judgment of this Court dated 26.04.2012 with all consequences, i.e. he has also ceased to be the Prime Minister of Pakistan with effect from the said date and the office of the Prime Minister shall be deemed to be vacant accordingly;

The Election Commission of Pakistan is required to issue notification of disqualification of Syed Yousaf Raza Gillani from being a member of the Majlis-e-Shoora w.e.f. 26.4.2012.”

20. Thus, for the reasons to be recorded later, we declare that:-

(a) Ch. Zahid Iqbal, MNA, Ms. Farah Naz Isfahani, MNA, Mr. Farhat Mehmood Khan, MNA, Mr. Jamil Ahmad Malik, MNA, Mr. Muhammad Akhlaq, MPA(Punjab), Dr. Muhammad Ashraf Chohan, MPA (Punjab), Ms. Nadia Gabol, MPA (Sindh), Ch. Waseem Qadir, MPA (Punjab), Ch. Nadeem Khadim, MPA(Punjab), Ms. Amna Buttar, MPA (Punjab), Dr. Ahmad Ali Shah, MPA (Sindh) have been found disqualified from being members of Majlis-e-Shoora (Parliament) and Provincial Assemblies because of their disqualification under Article 63(1)(c) of the Constitution.

(b) The Parliamentarians/Members of Provincial Assemblies, who have been declared to be disqualified, in view of the established fact that they have acquired the citizenship of Foreign States, therefore, no question has arisen, which is to be determined by the Chairman/Speaker. Thus, no reference under Article 63(2) is being made.

(c) The Election Commission is directed to de-notify the respective memberships of Parliament/Assemblies of aforesaid persons.

(d) All the Members of the Parliament/Provincial Assemblies noted above had made false declarations before the Election Commission while filing their nomination papers and as such appear to be guilty of corrupt practice in terms of Section 78 of Representation of Peoples Act, 1976, therefore, the Election Commission is directed to institute legal proceedings against them under section 82 of the Act read with sections 193, 196, 197, 198 and 199 PPC in accordance with law.

(e) The members of Parliament/Provincial Assemblies noted hereinabove, being disqualified persons are directed to refund all monetary benefits drawn by them for the period during which they occupied the public office and had drawn their emoluments etc. from the public exchequer including monthly remunerations, TA/DA, facilities of accommodation along with other perks which shall be calculated in terms of money by the Secretaries of the Senate, National Assembly and Provincial Assemblies accordingly.

(f) The amount, so recovered from all of them by respective Secretaries shall be deposited in the public exchequer within a period of two weeks and compliance report shall be sent to the Registrar.

(g) As regards the case of Senator A. Rehman Malik, it may be noted that at the time of filing of nomination papers for election to the Senate held in the year 2008, he had made a false declaration to the effect that he was not subject to any of the disqualifications specified in Article 63 of the Constitution or any other law for the time being in force for being elected as a member of the Parliament/Provincial Assembly, therefore, reference will be required to be made to the Chairman Senate under Article 63(2) in view of the provision of section 99(1)(f) of the Act of 1976, which lays down that a person shall not be qualified from being elected or chosen as a member of an Assembly unless he is sagacious, righteous and non-profligate and honest and ameen. Mr. A. Rahman Malik, in view of the false declaration filed by him at the time of contesting the election to the Senate held in the year 2008, wherein he was elected, cannot be considered sagacious, righteous, honest and ameen within the contemplation of section 99(1)(f) of the Act of 1976. Therefore, for such purposes Article 63(p) is to be adhered to because the disqualification incurred by him is envisaged under the law, referred to hereinabove in view of his own statement that he had renounced his citizenship of UK whereas the fact remains that such renunciation along with declaration can only be seen as having been made on 29.05.2012.

(h) Senator A. Rehman Malik is directed to refund all monetary benefits drawn by him upto 11.7.2012 for the period during which he occupied the public office in the same manner as directed in the case of other Parliamentarians noted above.

(i) As Mr. A. Rehman Malik had made false declarations while filing his nomination papers before the Election Commission in the election held in the year 2008, therefore, the Election Commission is directed to institute legal proceedings against him as it has been directed in the case of above said parliamentarians.

21. The Election Commission of Pakistan is also directed to examine the cases of the Parliamentarians and the members of Provincial Assemblies, individually, by obtaining fresh declaration on oath from all of them that they are not disqualified under Article 63(1)(c) of the Constitution.

22. The titled Constitution Petition is disposed of in the above terms. However, the Criminal Original Petitions are adjourned to a date in office.

Chief Justice   Judge  Announced on 20th September, 2012 at Islamabad.

h.m.azeem

Lately, it has been discussed a lot in our judiciary and media that Dual Nationals should not be the part of the Elected Assemblies. Every time I hear or read some pathetic comment on this topic I ask myself “Really”.
So now if a person is holding a dual nationality his patriotism is in doubt. What a joke? Most of the people do not agree with me and start debating that, it is the part of the constitution and anything that is done against the constitution cannot be patriotic. After listening to the talk shows, views of political parties, and my discussions with friends and family for a while I decided to put my thought in this writing.
Factors We Miss While Discussing Dual Nationality Issue:

There are couple of factors that Pakistanis are completely missing when they are thinking and or discussing the issue of Dual Nationality. To understand the complete concept, the constitutional writings and ground realities one needs to go back to early 70’s and before. When Pakistan came into existence its population was approximately 76 million combined (east and west Pakistan) and approximately 34 million in West Pakistan. By 70’s the population of Pakistan almost doubled to 66 million (west Pakistan only). The  resources were limited and to find better living, people started moving out.

Initially the biggest chunk moved to Middle East and some to the other countries around the world including USA, Canada, Australia, UK, Germany, Turkey, Russia, South Africa, and many other countries. Every country has their own laws for the people who are coming from other countries. Some only issued work permits, some issued resident cards to let people work in their countries, as those countries were and are still in need of talented and skilled human resource.

Here is one example from Wikipedia (that has the legal references available to all he following claims), United States Chief Justice John Rutledge ruled “a man may, at the same time, enjoy the rights of citizenship under two governments,”[5] but the US requires applicants for naturalization to symbolically renounce all prior allegiance to any other nation or sovereignty as part of the naturalization ceremony.[6] In the case of a British citizen, however, the UK honors renunciation of citizenship only if done with competent UK authorities.[7] Consequently, British citizens naturalized in the US remain British citizens in the eyes of the British government even  after they renounce British allegiance to the satisfaction of U.S.  authorities.
For a shorter while one can stay in another country without getting into the issue of Dual nationality, but as time passed and the Economic problems of Pakistan increased with the SIX folds in population growth, people started to acquire the Nationality of different countries.
Why Acquire Foreign Nationality? :

Another very important reason that made people acquire the citizenship of other countries was the legal requirement of the country for example, in order to buy a house or to own a business. When we look at our constitution with the citizenship act of 1951, Pakistani’s cannot have the dual citizenship. Since independence, the growth of expatriate Pakistani communities in the Middle East, Europe and North America has led to several changes in Pakistani nationality law. Although holding dual citizenship was not permitted under the 1951 law, the Government of Pakistan now recognizes and allows its citizens to also hold the citizenships of 16 countries: 1.      United Kingdom 2.      Italy 3.      France 4.      Belgium 5.      Iceland 6.      Australia 7.      New Zealand 8.      Sweden 9.      United States 10.     Ireland 11.     Netherlands 12.     Switzerland 13.     Canada 14.     Egypt 15.     Jordan 16.     Syria

Talking about the constitution of Pakistan, one must remember that the constitution of any country is the set of law to live by but is NOT a book from God that cannot have mistaken or incompleteness. Any constitution is written by human beings and they kept the ground realities of the time to write the constitution. Over the time with experience the changes are allowed with the consent of the people of the country and that has happened 18 times in the history of Pakistan (18 amendments).
Why or Why Not to Allow Overseas Pakistanis:

Let’s see why we should or should not allow the Overseas Pakistani’s to be the part of the electoral process. According to the Wikipedia, the number of Pakistanis living abroad is almost 7million.
The Pakistani diaspora refers to overseas Pakistanis, who are Pakistani citizens that have migrated to another country, as well as people of who are of Pakistani descent. According to the Pakistani Government, there are around 7 million Pakistani people living abroad with a vast majority of them residing in the Middle East, Europe and North America.[1] Pakistan ranks 10th in the world for remittances sent home in 2012 at $13 billion.[2][3]
The above said 7 million Pakistanis who are living in all different countries have the strongest ties with Pakistan and probably love Pakistan more than anything. They are the ones who, (regardless of their second nationality) have to answer the questions of the people of the country they live in. They have set up Pakistani Organizations in every county they are living in. The number of these organizations is more than 350. These overseas Pakistanis have even registered the political parties of Pakistan as Foreign Political party in different countries (where allowed, for instance PPP, MQM, PTI and other parties are registered in USA). They celebrate every Pakistan Day with love, peace and harmony.

Overseas Pakistanis are Better United : Overseas Pakistanis are more united as Pakistanis then Sindhi, Balouchi, Pakhtoon, Mohajir, Punjabi or any other sub division. Overseas Pakistanis are have contributed to the betterment of World and brought an honor to the name of the Nation. Pakistanis have been serving in each and every industry around the world including Science, Technology, Manufacturing, Teaching and many more.
Universal Declaration of Human Rights on Dual Nationality:
Last but not least, let us see what the Universal Declaration of Human Rights has to say about the Dual Nationality: Universal Declaration of Human Rights (UDHR) states:
(a) ” Everyone has the right to take part in the government of his/her country….” ( Section 21(1) of ICCPR). Overseas Pakistanis with dual nationality claim Pakistan as his/her country; and Pakistan also consider them as their citizens since they hold National Identity Card, Pakistani Passport and the right to vote in the general elections. Therefore, they have the right to be a parliamentarian in Pakistan.
(b) “Everyone has the right to a nationality ” ( Article 15 (1) of UDHR. A Pakistani who acquires the nationality of a foreign country where he resides without surrendering Pakistani citizenship is doing so as a “privilege” to enjoy the benefits of the resident country where he/she currently lives. This does not take away his/her allegiance to Pakistan.
Even though Pakistanis acquired the Nationality of other countries, their hearts are always beating for Pakistan, as that was the country which came into existence with the sacrifice of more than 2 million
people.

Arguments are being put forth quoting example of Arnold Schwarzenegger who held elected public office in the US.

Schwarzenegger was an Austrian by birth, who migrated to America in 1968 after becoming Mr Universe. As per Austrian law, a citizen who acquires another citizenship by voluntary action loses Austrian citizenship. The exception is in cases where permission to retain citizenship has been obtained before acquiring another citizenship. Former citizens of Austria, who lost citizenship other than by renunciation or deprivation, can regain their citizenship only after one year residence in Austria. The Austrian citizenship is also automatically lost by serving in a foreign army. Schwarzenegger cannot hold elected public office in Austria after having voluntarily renounced his loyalty to that country, when he took the oath of the citizenship of America.

This is the issue under discussion that any citizen of Pakistan who of his own will takes the oath of citizenship of another country must not be allowed to hold elected, or even paid public office in his former country of origin, because he has renounced his loyalty to that country.

In any case, the constitution of Pakistan is supreme law, and the Citizenship Act of 1951 is subservient to it and in case of any conflict, the constitution prevails.

The Supreme Court has given a very clear judgment on this issue and it alone is a legally accepted forum for interpretation of the constitution. Common sense dictates that a citizen, who has pledged loyalty to a country, must be loyal to it alone. It is the most recent oath of loyalty which overrides any previous oath or pledge of loyalty to any other country, including the country of birth.

Let the fate and destiny of Pakistan be decided by those who have no split loyalties and who have undivided stakes in that country alone. The people of Pakistan have had enough of experimenting with men like Shaukat Aziz. Those Pakistani-origin dual nationals eager to help this country can invest in it, or own private business, and even offer consultancy services, but must understand that they cannot sail in two boats simultaneously, nor be loyal to both nations simultaneously, in case of a conflict between them.

h.m.azeem

ISLAMABAD: Prime Minister Syed Yusuf Raza Gilani on Sunday said there was no restriction on dual citizenship for legislators in the Constitution and he was in favour of expatriate Pakistanis getting the right to vote and becoming members of parliament.

Speaking during a Geo News programme Capital Talk, the PM said more than 300 councillors, mayors and members of the House of Commons and House of Lords in Britain were Pakistanis.

“There should be a debate on the issue of dual citizenship and parliament should decide the issue and legislate because now the world has changed,” the prime minister said, and added that expatriate Pakistanis should not be deprived of the right to become members of parliament and voters in Pakistan.

He said nowhere in the Constitution was it written that Pakistanis cannot hold dual citizenship or become legislators and bureaucrats.

“I am in favour of overseas Pakistanis having the right to vote and become members of parliament,” he remarked.The PM said the law and Constitution were not made for individuals and one had to look at the situation in the country and the world. “What will happen if Britain abolished the citizenship of Lord Nazir Ahmed?” he asked.

The Supreme Court’s ruling on Thursday disqualifying dual national citizens is a contradiction of fundamental rights granted to citizens under Article 25 of the Constitution of Pakistan. Article 25 provides that all citizens are equal before law and are entitled to equal protection of law. The dual national citizens who holds Pakistani passport and National Identity Card are true citizens of Pakistan and therefore have the right of vote in the general elections in Pakistan. In case of a contradiction in law by virtue of Article 63(1)(c), if narrowly interpreted, the provisions of Fundamental Rights under Article 25 (1) should prevail over Article 63(1)(c). The Supreme Court is aware that Article 8 of the Constitution declares the laws inconsistent with or in derogation of fundamental rights to be void.

Duel over dual nationality

The issue of dual nationality holders being allowed to contest elections is a contentious one that has sparked a debate in the country and has resulted in the Supreme Court of Pakistan disqualifying several members of parliament and provincial assemblies after evidence emerged that they were dual nationals.

Article 63 (1) – C of Pakistan’s Constitution states: “A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (parliament), if he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State.”

It was the responsibility of the Election Commission of Pakistan (ECP) to ensure that this constitutional bar against dual nationals participating in elections was strictly enforced. However, a lenient approach adopted by the ECP towards this very clear election rule in polls after polls since day one has resulted in a number of ‘dual nationals’ sneaking into Parliament after every election.

It was only recently that the nation was rudely made aware of the violation of this particular constitutional clause when the Supreme Court of Pakistan disqualified a number of parliamentarians for holding dual nationality.

A national debate has since ensued on whether or not to allow dual nationals to contest elections and whether they should be, if they return to assemblies, allowed to join the cabinet. Questions have also arisen about whether dual nationals should be allowed to hold top public sector jobs, join the judiciary and military and civil services.

Meanwhile, the ruling coalition led by Pakistan Peoples Party (PPP) has moved a draft retaining bill in Parliament seeking to remove from the Constitution the relevant clauses that bar dual nationals from contesting elections.

In a rare show of public disagreement over proposed legislation, members of the ruling coalition, and even the PPP itself, have spoken out against the dual nationality bill. That should provide some indication to the party that it needs to rethink its policy on the issue. The ANP has refused to support it, other major coalition partners have expressed reservations, and even party stalwarts such as Aitzaz Ahsan and Raza Rabbani are opposing it publicly. Given this, it is unlikely that the bill survive, at least in its current form. While the PPP may be able to eventually push it through the Senate, it is not likely to be able to do so in the National Assembly where a two-third majority is required to pass a constitutional bill.

Those who are in favor of retaining the relevant clauses and enforcing them stringently by the ECP are seemingly driven by concerns about loyalties of members with dual citizenship. A dual citizen must take an oath of allegiance to their new countries and in the case of the United States, must “absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty, of whom or which I have heretofore been a subject or citizen.”

Simply put, this means that citizens of the United States must renounce and give up their allegiance and loyalty they had once pledged to any foreign power or state of which they were citizens. Any Pakistani who obtains US citizenship must take this oath of allegiance and reject his loyalty to Pakistan. Similarly, Pakistanis acquiring citizenship of the UK and Canada must swear allegiance to Queen Elizabeth.

Legality: According to the Conduct of General Elections Order of 2002, Section 8D (2): “A person shall be disqualified to be elected or chosen as a member of a House of the Parliament or Provincial Assembly if (d) he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State.”

This raises several questions over the practice of political parties nominating candidates with dual citizenship, knowing full well that this is in violation of the Constitution and the Conduct of General Elections Order. And also queries have been raised whether it was a question of  negligence or ignorance on the part of the Election Commission  Pakistan for failing to strictly enforce the rule.

Conflict of Interest: The responsibilities and oaths make for conflicted loyalties and obligations. These are necessary to look at to understand whether dual citizens should be allowed to hold office in Pakistan.
For example, members of parliament who vote on resolutions, for example, opposing the resumption of Nato supply routes are theoretically damaging the interests of the countries they are citizens of, such as the US. Where do the loyalties of dual nationals lie when they vote on resolutions such as the one passed on April 12, 2012 reviewing terms of engagement with US / Nato / Isaf and general foreign policy, which included: “The Government needs to ensure that the principles of an independent foreign policy must be grounded in strict adherence to the Principles of Policy as stated in Article 40 of the Constitution of Pakistan, the UN Charter and observance of international law.

The US footprint in Pakistan must be reviewed. This means (i) an immediate cessation of drone attacks inside the territorial borders of Pakistan, (ii) the cessation of infiltration into Pakistani territory on any pretext, including hot pursuit; (iii) Pakistani territory including its air space shall not be used for transportation of arms and ammunition to Afghanistan.”

This can also extend to US Green Card holders. US Green card holders are required to obey all laws, file income tax returns and report all incomes earned and to defend the country if the need arises, amongst other responsibilities. Men aged 18 to 25 are also required to register with the Selective Service, which means the military draft.

There are several other potential conflicts of interest that may arise in terms of foreign policy, that bring into question what the course of action that members of parliament with dual nationality will take.

Imported prime ministers: Two prime ministers were thrust upon the country – on both occasions when elected governments were removed. Both the ‘imported prime ministers ‘ are back in their ‘dual nationality countries’.

Moeen Qureshi was invited by President Ghulam Ishaq Khan, of course with the consent of the then COAS General Mirza Aslam Beg in 1993 to assume the charge of  caretaker prime minister, while Shaukat Aziz was imported by General Pervez Musharraf after his coup in 1999. Initially Shaukat Aziz was made the finance minister. Later he was elevated as prime minister in 2004.

Imported ministers and prime ministers have no stake in Pakistan. They go back ‘home’ when they conclude their ‘assignments’ in Pakistan.

Subcontinent’s constitutions bar dual citizen MPs. Dual nationals in Pakistan, India and Bangladesh have similar provisions in their respective constitutions – they do not allow ‘persons with dual nationalities ‘ into their parliament.

Constitution of Pakistan Article 63 (1-c).

Disqualifications for membership of Majlis-e-Shoora (Parliament):

(1) A person shall be disqualified from being elected or chosen as, and from being, a

member of the Majlis-e-Shoora (Parliament), if:- He ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State;

Constitution of India Article 102 (1-d).

A person shall be disqualified for being chosen as, and for being, a member of either

House of Parliament— if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State;

Constitution of Bangladesh Section 66 (2c).

A person shall be disqualified for election as, or for being, a member of Parliament who acquires the citizenship of, or affirms or acknowledges allegiance to, a foreign state;

Parliament oath: While the members of parliament and provincial assemblies take an oath that they will function in accordance with the Constitution and vow to “preserve, protect and defend” it, it is the same Constitution that they are striving for that states that they cannot be members of parliament if they are dual nationals. Article 63 (1) – C of Pakistan’s Constitution states: “A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament), if he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State.”

Responsibilities of citizens
•  Support and defend the Constitution. •  Respect and obey federal, state, and local laws. •  Pay income and other taxes honestly, and on time, to federal, state, and local authorities. •  Defend the country if the need should arise.

parliament Members?

"A man with two hats can seldom be trusted; his loyalties are doubtful even if he is not."

Can a Member of National Assembly (MNA) or Senate or of a Provincial Assembly (MPA} be allowed to have dual nationality? Pose the question to an educated Pakistani, and his prompt answer is, no. The logic is simple. Dual nationality means dual, ie, divided, loyalty. We cannot allow persons of divided loyalty to sit in the assemblies, whose business it is to discuss and decide matters of vital national importance and sensitive and secret issues and where decisions have to be taken exclusively in the interest of Pakistan.
But there is a class of people, who support parliamentarians having dual nationality. And even see some advantage in it! Not surprisingly, most of them are of an elite class—affluent, influential, owning land, industry or flourishing business, enjoying power and abundant privileges, well-connected with the country’s rulers whoever they may be, and having interests and assets in foreign countries, primarily US and Britain. The people in this class are a diverse lot, belonging to different communities and walks of life and differing in their political and ideological views. But, their common class interests bind them together. Former prime minister, Yousuf Raza Gilani, in a way a leading representative of this class, ardently supported dual nationality,
The issue that some members of the parliament were holding foreign nationality surfaced when a petition was made to the Supreme Court that MNA Farahnaz Ispahani, wife of Hussain Haqqani, former ambassador to US, was a US citizen. The Supreme Court, on 25 May 2012, suspended her membership of the national assembly “for having foreign nationality and barred her from participating in the house committees’ meetings and policymaking processes.”
Defending Mrs. Haqqani, Prime Minister Syed Yousuf Raza Gilani argued that in Britain over 300 councilors, mayors and members of House of Commons and House of Lords were Pakistanis [meaning they had dual nationality]. He then remarked, “What will happen if Britain abolished the citizenship of Lord Nazir Ahmad?”
This was a politician’s explanation, skirting the issue. He should have been asked, so what, if Britain abolished Nazir Ahmad’s citizenship? Another question for him would have been, what he thought if Nazir Ahmad who sits in the House of Lords in Britain simultaneously sat in the National Assembly in Pakistan!
A few days later, Mr. Gilani, perhaps having realized that his first utterance on the issue lacked in justifying his views, offered fresh reasoning.  As reported in the Nation on 10 June, he said, ‘Pakistanis having dual nationality were members of the parliament in other countries, but those countries never raised any objection. “If the existing principle on dual nationality is followed then Pakistan’s national interest will be at stake,” he remarked.’
Does this remark come in the category of political gaffes—with which now and then he let people be amused or amazed? Or was there something more to it? Dual nationality is not allowed in many countries, including India. Are they worried their national interest is being hurt!
            What is the Indian position on dual citizenship? According toImmihelp.com:
"The constitution of India does not allow dual citizenship, ie, simultaneously holding Indian citizenship and citizenship of a foreign country. The Government of India has decided to grant Overseas Citizenship of India (OCI), which most people mistakenly refer to as dual citizenship. Persons of Indian Origin (PIO) of certain categories who migrated from India and acquired citizenship of a foreign country, other than Pakistan and Bangladesh, are eligible to be granted an OCI as long as their home countries allow dual citizenship under their local laws.
If you get an OCI it is not the same as being a regular Indian citizen: You do not get an Indian passport. There is no such thing as an OCI passport. You have no voting rights. You cannot be a candidate for Lok Sabha [or a state assembly]. You cannot hold employment in the Government of India.”
Britain makes its policies on immigration, political asylum, dual citizenship etc, according to its requirements, which extend beyond the domestic sphere to the international field because Britain is also a major pace setter in ushering in the New World Order (NWO). The same is the case with United States and various other western countries. The NWO aims at fragmentation of nation-states and in the process wants them to open up their economic, political and administrative systems to foreigners. Pakistan just cannot imitate the other countries on such sensitive issues. It has to go by its own requirements and interests.
While suspending MNA Farahnaz, the court noted that those who acquired US citizenship were under oath to pick up arms to defend the US. It is educative, especially for the supporters of dual nationality, to know what the oath covers. This is what it says:
“I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God.”
This is the oath that Mrs. Haqqani took, and to which she is bound as long as she remains a US citizen.
The oath of allegiance that Mr. Rehman Malik, interior minister, subsequently made adviser, took on becoming a British citizen is in these words:
“I, [name], [swear by Almighty God] [do solemnly, sincerely and truly affirm and declare] that, on becoming a British citizen, I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, her heirs, and successors, according to law.”
According to British nationality law, ‘since 1 January 2004, applicants for British citizenship are also required to make a pledge to the United Kingdom as follows’: “I will give my loyalty to the United Kingdom and respect its rights and freedoms. I will uphold its democratic values. I will observe its laws faithfully and fulfil my duties and obligations as a British citizen.”
Mr. Malik’s membership of the Senate was suspended on 4 June by the Supreme Court. The court observed he was holding British nationality at the time of filing his nomination papers for the Senate. Therefore he was disqualified under Article 63(1) (c), which says, “A person shall be disqualified from being elected or chosen as, and from being, a member of the Parliament, if he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State.”
The misrule by the misguided Musharraf regime has left our country in the grip of a political dispensation (to use a favourite expression of the boastful general) that is controlled by the politicians of the class mentioned above. They are in a position to bring in resolutions and laws that perpetuate their hold on power even if it leads to subverting the country’s fundamental interests. So, it won’t be surprising if dual nationality for the parliamentarians is made permissible by law. However, one cannot see such a subversive law remaining in force for long