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October 23, 2018

Question of allegiance


October 23, 2018

How does one ascertain loyalty? This is the question at the heart of Article 63(1)(c) of the constitution, as interpreted recently by the Supreme Court of Pakistan, which maintains that Pakistanis who have acquired another nationality may continue to be Pakistani citizens but do not have the right to contest elections. Without a say in the government, and being treated as second-class citizens with limited political rights, such Pakistanis can then rightfully ask: why should we have any love for, and interest in, Pakistan – or help Pakistan in times of need?

The rule stems from the outdated mindset that Pakistanis who acquire citizenship of another country have demonstrated inherent disloyalty to Pakistan, an archaic mindset made explicit by a 2012 Supreme Court judgment which noted that “by taking oath of citizenship of another country, your allegiance to Pakistan comes into doubt.” But this assumption cannot be further from the truth and is based on the misconception that in today’s day and age a person cannot be loyal to the laws of more than one country.

There was indeed a time in the past, before and during the cold war, when dual nationals were treated with suspicion. But the world has changed since then and is now a global village with free trade and movement of people and goods. Nationals of one country acquire citizenship of another for purely economic reasons, employment or education or ease of travel, rather than political reasons. Dual nationality is now welcomed and multi-nationalism and the concept of ‘cosmopolitan citizenship’ are widely accepted; in fact, the UN Convention on Conflict of Nationality goes a step further and recognises that a person can even have more than two nationalities.

Most countries have or are in the process of doing away with laws which restrict the rights of dual nationals; and where such laws exist, local courts are reducing their scope through interpretation. The world is no longer concerned with the question of which country a person owes more allegiance to. Countries are only interested in how law abiding a person is to their laws. As for the question of emotional attachment, this is quite irrelevant and ought to remain a personal choice of the citizen.

In fact some countries of second citizenship even give dual nationals the right not only to become members of their parliaments but even ministers in cabinet. Why then does Pakistan consider its own citizens disloyal and deny them the same rights in their mother country?

Experts and jurists agree that dual citizenship represents a kind of freedom of association, a form of voluntary affiliation to be protected, not condemned. Stephen Castles in ‘Blurred Boundaries: Migration, Ethnicity, and Citizenship’ states that “…….basing citizenship on a singular and individual membership in a nation-state is no longer adequate, since the nation-state model itself is being severely eroded. Instead, new approaches to citizenship are needed, which take account of collective identities and the fact that many peoples now belong to more than one society.”

Yet, against the tide of international opinion and practice, many in Pakistan continue to harbour the feeling that Pakistanis with dual citizenship have somehow betrayed the country. Certainly, our law (Article 62(1)(c)) seems to think so. It is time to change this mindset.

While many dual-national Pakistanis may live abroad, and are duty bound to abide by the laws of the countries of their residence (as indeed they should), their hearts and souls are still in the country of their birth. They are more informed and concerned about Pakistan and just as patriotic as we who are living here. Most of them give regular support, in cash or kind, to various charities and are loyal friends of Pakistan. Almost every one of them still has and nourishes their roots here.

Even the prime minister and the chief justice of Pakistan have appealed to their patriotism for donation to the Basha Dam Fund. Many children of these dual nationals Pakistani born outside Pakistan, in spite of not being able to speak Urdu or other languages of the country, have retained family ties and continue to treat Pakistan as their mother country. One only has to witness cricket matches abroad to understand their feelings. How can their loyalty be then questioned?

It is equally important to ask: why did our compatriots opt for a second nationality in the first place? Let’s face it: opportunities of employment and business in Pakistan are scarce, forcing thousands to seek fortunes abroad. Others choose to do so for reasons of trade and commerce, freedom of travel or access to education. Still others are dual nationals, not out of choice but for reasons of birth or marriage. These economic and legal reasons for acquiring another citizenship do not and should not affect their allegiance to Pakistan. These Pakistanis did not abandon Pakistan.

The basis for this law is also clearly wrong. The Citizenship Act, 1952 allows Pakistanis to hold two nationalities of at least 17 nations, while remaining a citizen of Pakistan, yet their rights as full citizens are not granted. The Supreme Court, in recent judgments, has given dual nationals the right to vote but what good is this if they can’t participate in governance to the fullest extent by contesting elections? The restriction also appears to conflict with Article 17 of the constitution, which guarantees every citizen the right to contest elections.

Moreover, if what is in doubt is the loyalty of dual citizens, why hasn’t parliament imposed similar restrictions on other branches of government? It is ironic that judges and bureaucrats who are also ‘fiduciaries’ of the public can be dual nationals but parliamentarians cannot.

I am happy to say that at least some of the judges of the Supreme Court observed during the course of the latest hearing of this case that they did not doubt the loyalty of dual nationals; to this extent at least, the earlier view of the Supreme Court that a conflict of interest hounds dual nationals may have been changed. However, since the court has nevertheless determined that such citizens cannot contest elections according to the text of the constitution, the ball is now squarely in the court of parliament.

Our legislators must correct this wrong. Countries consider their emigrants to be assets abroad rather than deserters. So should Pakistan. Indeed, this has to be the mindset of our parliament: to facilitate rather than alienate. The only way however in which the dual nationals can now be allowed to contest elections is if a constitutional amendment is made in Article 63(1)(c). For that, a two-thirds parliamentary majority is required.

Ideally, all political parties should leave their differences aside on this issue of national importance. Yet, given the impression that most overseas Pakistanis support the PTI, there may be reluctance amongst other parties to grant them any further political rights. Until then, regrettably, the only option for dual nationals is to relinquish their second citizenship in order to contest elections. Like many mistakes made by parliament in not rectifying anomalies within the constitution, only time will tell if not amending Article 63(1)(c) is also unwise.

The writer is a Supreme Courtadvocate, former caretakerfederal minister, and former president of the SCBA.

Email: [email protected]

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