The dual citizenship debacle

In an article published in August 2007, I raised the question of whether expats are eligible for public office. Since then, a great deal of clarity has developed on this question. But it is still believed that renouncing dual citizenship can serve as a remedy for being disqualified from specific public offices.

This is contrary to the letter and spirit of the constitution because while this form of renunciation can ‘restore’ a person’s Pakistani citizenship, it isn’t sufficient to prevent disqualification. The constitution specifies various independent conditions for people who aspire to become members of parliament. These include the condition that a person would qualify under Article 62(1)(a) if he/she is a citizen of Pakistan. However, he/she is disqualified under Article 63(1)(c), if he/she “acquires the citizenship of a foreign state”.

The plain test that follows from these conditions is to ask people whether they have “acquired” the citizenship of a foreign state. If they respond in the affirmative, they are disqualified – even if they claim that they no longer hold the citizenship of a foreign country. In the text of the constitution, ‘acquires’ refers to the act of acquiring a foreign citizenship rather than the fact of holding a dual citizenship. While facts can be altered, acts cannot be undone. If we go by the text, it is the act which disqualifies a person, not the resulting fact.

The Pakistan Citizenship Act 1951 disallows dual citizenship. This restriction initially applied in principle to all countries. But since 1972, it applies to most non-notified foreign countries. The 1951 act also provides for the renunciation of foreign citizenships (which was initially restricted to British or Indian citizenships, but is now applicable to non-notified countries) as a mandatory condition. Since it determines citizenship, the act bears decisively on the requirements of citizenship under Article 62(1)(a) of the constitution but has no nexus with disqualification.

Although renunciation under the act alters the fact of holding the renounced citizenship, it does not erase the act of acquisition. As a result, it does not prevent disqualification.

The Supreme Court ruled otherwise in its judgment in ‘Constitution Petition No 5 of 2012’. The apex court cited with approval a 2002 decision of the Lahore High Court (LHC). But this article seeks to take a position that is fully consistent with the letter and spirit of the constitution and the principles of construction.

The LHC had held that the petitioner, a dual citizen, “cannot contest elections, unless, of course, he removes this disqualification in terms of rule 19 of the Pakistan Citizenship Rules, 1952” (PLD 2002 Lahore 521). Rule 19 is specific to a narrow class of married women with multiple characteristics that are specified in Rule 14. It is also strictly procedural as it requires evidence of declaration for this class. It neither justifies the “of course” remark nor applies to the petitioner’s situation. No other explanation, let alone a substantive justification (ratio decidendi), was provided by the LHC for the incidental remark (obiter dictum).

It seems that the LHC was led into error by construing “acquiring foreign citizenship” as “holding dual citizenship”. As a result, it made an incidental remark that overlooks the fact that, while the act bears on qualification, it has no nexus with disqualification. The terms ‘dual’ and ‘renunciation’ which are peculiar to the act, do not feature anywhere in the constitution. With the exception of two time-bound exceptions under Section 3(c) and Section 10(1), the concept of ‘acquiring foreign citizenship’ that occurs in the constitution cannot be found in the act.

This appears to have misled the Supreme Court in its learned judgment of 2012 to implicitly endorse, without critical reflection, the LHC’s obiter dictum despite its departure from the principles of construction expounded at length in the same judgment. It indicates the extent to which ‘acquiring’ and ‘holding’ had become synonymous in the mind of the judges. At one point (paragraph 42) in the judgment, the phrase “acquires the citizenship of a foreign state” in the constitution is misquoted as “holding of citizenship of foreign state”.

This article’s position is supported by the principles of interpretation laid out in the judgment: (i)“It is a cardinal principle of construction that the words of a statute are first understood in their natural, ordinary or popular sense”; (ii)“a construction, which requires for its support, addition or substitution of words has to be avoided”; and (iii) “the intention of the legislator is primarily to be gathered from the language used, which means that attention should be paid to what has been said and also to what has not been said”.

The first two principles support the view that the term “acquires” cannot be construed to mean “holds” and “foreign citizenship” cannot mean “dual citizenship”. The third principle draws attention to the fact that the constitution does not include the phrases “if he is the citizen of” or “if he holds the citizenship of” (or the like). If these phrases were included in the constitution, then renunciation would prevent disqualification. The fact that the constitution uses the word “acquires” and provides no remedy for this by renunciation, indicates the understandable intent to set a high standard for membership to parliament – a body in which the sovereignty of the people is vested.

This is also supported by the concurring note to the lead opinion in the judgment. The note elaborates on the history and spirit of Article 63(1)(c) and concludes that the provision intends “to ensure that citizens of Pakistan who acquire dual citizenship do not sit in parliament” and to require “absolute and undiluted loyalty to Pakistan” from those who aspire to represent the people of Pakistan.

The act of acquiring a foreign citizenship does cloud this “absolute and undiluted” loyalty. It also creates the potential of being influenced by residual “fear or favour, affection or ill-will” (oaths of office, including for members of parliament, in the constitution) after renouncing a foreign citizenship, especially of the more wealthy and powerful countries where their wealth and children may also reside. This creates a permanent perception of a conflict of interest in the discharge of public duties, which is the raison d’etre of the disqualification. On this point, the judgment is equally enlightening.

In light of appreciating the spirit of the constitution, national interest (raison d’état) demands that we err on the side of caution in not permitting dual citizens to contest elections by renouncing their foreign citizenship. Since the 1980s, many nations have amended their laws to enable their citizens of foreign origin to advance their interests by returning temporarily to their home countries.

For example, the British Nationality Act 1981 now provides a British citizen who renounces his/her citizenship under Section 12(1) the right to resume and re-register his/her British citizenship on application under Section 13(1). This is only applicable if “his renunciation of British citizenship was necessary to enable him to retain or acquire some other citizenship or nationality” – once under Section 13(2) and thereafter under Section 13(3) if the secretary of state “thinks fit”. It would not be surprising if a review of the position in other countries reveals similar positions.

The Supreme Court is not supreme because it is right; it is right because it is supreme. It would be appropriate, however, if on this question “of the highest public importance”, the Supreme Court reviews the matter ab initio and reaches a judgment that is both supreme and right.

The writer is a retired economist.

Email: arshadzaman@yahoo.com