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Dual nationality: A step in the wrong direction!

The latest amendment in Article 63 (1) (c) of the Constitution allows a person to contest the elections without renouncing his dual citizenship. However, according to Barrister Pansota, the introduction of such an amendment goes against the scheme and spirit of Article 63 (1) (c) as well as the law already expounded by the Supreme Court of Pakistan.

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Is Pakistan ready to allow persons holding dual nationality to become members of its parliament? The question arose after Prime Minister Imran Khan asked his cabinet upon his return from Washington, D.C. to initiate legal arrangements to enable Pakistanis holding dual nationality to contest elections for Pakistan’s national and provincial legislatures. Public opinion seems to be divided and Imran Khan himself had opposed dual nationals to become legislators in the past.

Pakistan’s Constitution was drafted in the year 1973. It provides for qualification as well as a disqualification for a person to become a member of the Parliament. The grounds for qualification of a person to be elected as a member of the Parliament are enshrined under Article 62 of the Constitution of the Islamic Republic of Pakistan 1973 whereas; the grounds for disqualification of a person to be de-seated are encapsulated under Article 63 of the Constitution of the Islamic Republic of Pakistan 1973.

Read more: Is parliamentary system of governance in Pakistan a salient feature of the Constitution?

At present, the Constitution of the Islamic Republic of Pakistan 1973 does not allow persons of dual nationality to contest elections in Pakistan. Article 63 (1) of the Constitution disqualifies a person from being chosen as or elected or being a member of the Parliament.

One of the disqualifications mentioned in the same Article under paragraph (c) reads “if he ceases to be a citizen of Pakistan or acquires the citizenship of a foreign state”. This means that even if a person does not cease to be a Pakistani citizen but acquires the citizenship of a foreign country, which means dual nationality, he or she will stand disqualified to contest elections in Pakistan.

Although several disqualifications were added at later stages after the passage of the 1973 Constitution, this particular disqualification under Art. 63 (1) (c) was part of the original Constitution too.

Read more: Voting rights to overseas Pakistanis in next general elections

The relevant laws on the subject

The most serious question which arises out about allowing dual nationals to become legislators is the possible conflict of interest. In terms of Article 63 (1)  (c) of the Constitution of the Islamic Republic of Pakistan 1973 “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.”

As per Section 99 (1A) of the Representation of People Act 1976 “A person shall be disqualified from being elected or chosen as, and from being, a member of the Parliament if:- (c) He ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State.”

Read more: Overseas Pakistanis voting: what are the prospects and pitfalls?

As per Section 8D (2) of the Conduct of General Elections Order, 2002 “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.”

Position in other parts of the world?

The concept of dual nationality has not found favor in other parts of the world also and the same has been discouraged. In countries such as India, the USA, UK, Australia, Canada, Cyprus, Finland, France, such a concept has been deprecated.

Faryal Nazir in her report titled “Report on Citizenship Law in Pakistan” has thrown light upon different countries where the concept of dual nationality or dual citizenship has not found favor and such practice has been deprecated.

Read more: Dual Nationality: A question of loyalty or just political grandstanding?

Even a report titled “Dual Nationality for Public Representatives” by PILDAT a comparative analysis has been drawn between Pakistan and different countries as to whether the concept of dual nationality or dual citizenship recognized in other parts of the world.

 

The legal side of the story

In order to put at rest the proposition that as to whether a citizen who acquires the dual nationality of a foreign State is eligible to contest the elections and be elected as a member of the Parliament, the Supreme Court of Pakistan in the year 2012 was seized of with a matter.

In the ceremonial judgment by a Full Bench of the Supreme Court of Pakistan in the case titled Syed Mahmood Akhtar Naqvi Versus Federation of Pakistan reported as PLD 2012 SC 1089 a Full Bench of the Supreme Court of Pakistan was pleased to put at the rest the notion that “Where a person acquires the dual nationality or dual citizenship of a foreign State he shall cease to be a member of the Parliament and in order to contest the elections he would need to renounce his dual nationality at the time of filing of his nomination papers failing which he shall not be entitled to contest the elections.”

Read more: Should dual nationals be part of the cabinet?

Similarly, in the year 2013 a Full Bench of the Supreme Court of Pakistan in the case titled as Dr. Tahirl-ul-Qadri Versus Federation of Pakistan through Secretary M/o Law, Islamabad and others reported as PLD 2013 SC 413 while being seized of with a matter pertaining to the interpretation of Article 63 (1) (c) of the Constitution of the Islamic Republic of Pakistan 1973 was pleased to put at rest the notion that “Any person who acquires the dual nationality or dual citizenship of a Foreign State shall cease to be a member of the Parliament and shall not be entitled to contest the elections.”

More recently, a Seven Member Bench of the Supreme Court of Pakistan in the case titled as Dual Nationality of Parliamentarians bearing case No Suo Moto case No 8/2019 reported as PLD 2019 SC 201 while being seized of with a matter pertaining to the interpretation of Article 63 (1) (c) of the Constitution of the Islamic Republic of Pakistan 1973 was pleased to re-affirm and re-iterate the law already laid down by a Full Bench of the Supreme Court of Pakistan in the ceremonial judgment of Syed Mahmood Akhtar Naqvi Versus Federation of Pakistan reported as PLD 2012 SC 1089, as well as the laid down in Dr. Tahir-ul-Qadri Versus Federation of Pakistan through Secretary M/o Law, Islamabad, and others, reported as PLD 2013 SC 413.

Read more: A conversation with Dr. Tahir ul Qadri

The latest amendment 

In the year 2020, the Federal Government introduced an amendment in Article 63 (1) (c) of the Constitution of the Islamic Republic of Pakistan 1973 by virtue of which a person shall be entitled and eligible to contest the election even without renouncing his dual nationality or dual citizenship at the time of contesting the elections and at the time of filing of his nomination papers.

As per the latest Amendment introduced by the Advisor to the Prime Minister on Parliamentary Affair Dr. Babar Awan, under the Amendment Bill, a dual national would need to renounce his dual nationality or dual citizenship before taking oath unlike what the position was before.

Viewed from whichever angle, the latest amendment introduced by the Federal Government in Article 63 (1) (c) of the Constitution of the Islamic Republic of Pakistan 1973 is nothing but a means to provide a safe passage/exit to all the blue-eyed babies.

Read more: Dual Nationality is negation to the Article 62 & 63 (c)

The introduction of such an amendment goes against the scheme and spirit of Article 63 (1) (c) as well as the law already expounded by the Supreme Court of Pakistan in the judgments referred above. If the said Amendment is challenged before the Courts of Law, there is every likelihood that the same could be declared as being an ultra-virus for the Constitution as well as is in stark violation of the law laid down by the Apex Court. This amounts to playing a shot in the dark!

May Allah help and guide us all!

The writer is an advocate high court practicing in Lahore and is a founding partner of Ahmed & Pansota (Advocates & Legal Consultants). He started his career with Cornelius, Lane & Mufti after doing Bar-at-Law from Inns of Court School Law, London, and was called to the bar at Lincolns Inn, London, in the year 2005. Barrister Pansota also figures as a legal analyst in a weekly talk show called Zanjeer-e-Adal on Capital TV and appears on other national TV channels. He also writes for various newspapers on current legal issues. He tweets @pansota1.

The views expressed in the article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space. 

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