The defect in the dual nationality law

Published: July 12, 2012

The question of 'how' the citizenship is acquired is as important, if not more, as having acquired the actual citizenship itself. DESIGN: ERUM SHAIKH

Article 63(1)(c) of the Constitution needs clarification; of that there can be no doubt. At present, it stops an individual from being chosen or elected as a member of parliament if he or she ceases to be a citizen of Pakistan or acquires the citizenship of a foreign state.

The problem with this is two-fold:

Firstly, it fails to recognise the many ways in which citizenship is or can be acquired and, secondly, it fails to distinguish between that which should be acceptable and that which cannot be.

To illustrate my point more clearly, let me give you four examples of people who may have obtained a different nationality.

Political asylum

Person A claims political asylum in the UK on the basis that the state of Pakistan has failed to provide him with protection or has been complicit in the threats towards him or through its own legal procedures, has persecuted him.

Following the acceptance by courts of such allegations, he is granted asylum and subsequently acquires British nationality. He then goes back to Pakistan and wishes to stand for elections.

Student eligible for nationality

Person B is a Pakistani student who is in the UK for the sole purpose of studying, obtaining a job to support his expenses while there, and then going back to Pakistan to undertake full-time employment. Amidst the studying and training, he or she becomes eligible for nationality on the grounds of their residential period covered already and acquires the citizenship. Taken as a great opportunity, this is done largely to make future travel to Britain and other countries, where the British passport does not require a visa, easier.

Once done with his educational responsibility, he goes back to live and work in Pakistan without defaulting on his taxes. He too wishes to stand for elections.

Nationality by proxy of spouse

Person C is an individual who was born and bred in Pakistan. He has studied and worked in Pakistan all his life. He gets married to a British national and moves to Britain to live with his wife. Following the requisite period of residency, he acquires British nationality which will make life a lot easier for him and and his family.

He, regardless of obtaining a British nationality, considers himself to be Pakistani who has a British passport by virtue of his wife. He wishes to stand for elections in Pakistan as well.

The wealthy business man

Person D is a wealthy individual in Pakistan. He invests a significant amount of money to set up a business in England, the beneficiary of which is the English exchequer. By virtue of his residency, given to him due to the investment he undertook in the country, he applies for and acquires a British nationality.

He too wishes to stand for elections in Pakistan knowing that if ever caught in political or legal controversy, he has a safety net to fall on; he can abscond to his second home in Britain.

As the law currently interpreted stands, all the scenarios mentioned above will fail in their bid to stand for the elections in Pakistan. Yet all of the above mentioned people are Pakistani. It cannot be disputed that some of the above should be allowed to stand and some shouldn’t but the law, as it is applied now, would rule out all of them across the board; either the law is correct and we accept its vagaries or it in incorrect and needs to be amended or at least clarified.

I do not, however, believe that the Constitution ever intended to penalise those who fall into the category of Person B or C above but yet it does exactly that. Clearly, those falling in the Person A and D category are the ones the Constitution had in its mind while the law was drafted but, in the absence of any clear distinction, a plague has been set on all types of people whether patriots, non-patriots, malevolent or not.

In my view, the question of ‘how’ the citizenship is acquired is as important, if not more, as having acquired the actual citizenship itself.

If an individual has acquired another citizenship through claims of state persecution, for instance, availing political asylum in another country, then such an individual should not be surprised to find himself as disqualified from standing for the elections.

However, citizenship acquired through virtues of marriage or study surely cannot be met with the same penalty for it seeks to punish an individual for a legal right and without them having any state restrictions in law prior to their attainment of the citizenship.

Whilst the proposed law on dual nationality is seeking to liberate this band of individuals, it is also providing a blanket for those to whom the doors should remain closed. If however, the proposed bill is passed, Article 63(1)(c) will read

“A person shall be disqualified from being elected or chosen as, and from being a member of the Majlis-e-Shoora if he ceases to be a citizen of Pakistan, or has acquired citizenship of a foreign state except a state with which the federal government has a dual nationality arrangement under the law, before or after the commencement of the constitution (Twenty-Second Amendment) Act, 2012.”

PPP Senator Raza Rabbani recently stated,

I have serious reservations over the dual nationality bill. The government should review it.”

Clearly, there is an obvious state of friction surrounding the dual nationality law from many angles. Take the example of the countries Pakistan has an agreement regarding citizenship with. Senator Aitzaz Ahsan pointed out the controversial oath that is made upon receiving the American citizenship while protesting the bill about dual nationality. So not only should the current law be taken into consideration but also the list of countries that Pakistan apparently has an agreement with regarding dual citizenship.

We also witnessed Rehman Malik’s resignation from the senate in regards to the conundrum the dual nationality bill and everything surrounding it has become.

Striking down the law wholly would not be a prudent. Instead the Supreme Court should look to define what is meant by the term ‘acquired citizenship’ because that may enable them to maintain a healthy balance between the spirit of the constitution and the respect for parliament.

Read more by Sufiyan here.

Sufiyan Rana

Sufiyan Rana

A practising Solicitor-Advocate in England and Wales and a Senior Partner of Azmi-Rana Solicitors.

The views expressed by the writer and the reader comments do not necessarily reflect the views and policies of The Express Tribune.

  • vickram

    You Pakistani guys are so lucky; I really envy you. You can to go to developed countries like UK, US, Canada etc, seek asylum there and lead lives with high standard of living.

    I am an unlucky Indian and I don’t think I will ever get a chance to seek asylum in any developed country….*sigh * Recommend

  • Sabih Shad

    If I were a legislator I would be try to disbar having dual nationalities at all. If you want to acquire a second nationality for any reason what so ever, your priorities are written on the wall.Recommend

  • SaQiB

    @ author:

    No, I totally disagree to ur stance…………………. Those who seek a foreign nationality, for whatever reasons, considers it to be superior (since for him, solely Pakistan’s citizenship would not be enough)………… so whatever the law interprets……. those who hold dual nationalities should NOT be allowed to occupy our nation’s driving seat………! Fair enough!!Recommend

  • AMK

    absolutely illogical..why we are discussing the problems of elite, there are other 180 million who can be in assembly…………Recommend

  • Kaz

    No disrespect intended to the OP.

    There is no possible reason why any dual nationality holder can or should be allowed to stand for parliament or any government positions. He/She has taken citizenship with a foreign country, therefore is no longer completely beholden to one country. It is the height of idiocy to blindly accept that a person who holds two nationalities can be loyal to two countries, especially given that Pakistan is constantly at odds policy wise with the West.

    If someone wishes to work for the greater good of Pakistan, they should be Pakistani. Not Pakistani- American, British, French, Dutch, German, Spanish, Italian, Canadian, etc. No where in the world is a dual national allowed to stand in parliament with two nationalities.

    Having dual national parliamentarian or government official is a severe conflict of interest.

    I applaud those memebers in parliament who crossed their party stances and voted against dual nationality.Recommend

  • Ali S

    @Sabih Shad:

    If you had the opportunity to raise your children in an environment that gives you all the perks of a first-world nation and quality education free up to secondary level, would you ever consider acquiring another citizenship – even if just for your family’s sake? Any person with a functioning brain would.

    Sadly, being a Pakistani today makes you a walking target for scorn – and rightfully so considering the direction this nation has taken. And please cut me the crap about “so do something about making your nation better” as someone who pays all his taxes, tries to avoid bribes, hasn’t stolen electricity and has been robbed at gunpoint. The irony is that it’s folks that honk their ‘ghairat’ and patriotism the loudest (like you) that are among the first ones in line to ditch for an immigration option.Recommend

  • 3rdRockfromtheSun

    Dual citizenship is OK for an ordinary person but if you want to play politics, choose one country and stick to it. You can’t have your cake and eat it too!

    But your premise A amuses me – if A felt so threatened that he sought to flee the country, yet he comes back to run for office in the same place, that he felt so threatened in? Which would imply that the “asylum” claim was actually a sham! Would you really want such a crook to be in a political office?Recommend

  • Mo/CA

    there are factual errors on so many levels.
    Political assylum seekers are never granted citizenship, they get residency meaning that they can live in the country as long as the situation which caused the move is still present,

    Students working part time during college are not eligible for citizenship. They are on student visas, and there are a lot of restrictions regarding where they can work, and so on.

    Again,

    A person taking the oath of citizenship in a diff. country is foregoing his right to being a Pakistani. The oath clearly states that the said person would protect, and fight for the new country. If the person still claims to being a Pakistani then by default he/she is amoral.
    Caring for Pakistan, and claiming pakistaniat is completely different, one has to be careful of that. I am a dual national, and am vehemently opposed to the idea that people like me who have taken the oath of citizenship in countries other than Pakistan be allowed to become members of Parliament, Bureaucracy, Judiciary,and military.

    Also, we may care a deal about Pakistan, but if we are not able to give one citizenship to abide by the laws of moral, logic, and the Pakistani constitution, then there is something wrong with us, and there is something extremely fishy. There are many implications for dual nationals to serve. Iam not saying that all dual nationals are corrupt, but what if a dual national comes into parliament, does corruption and then leaves the country. Going to his/her second country, the said person forgoes his Pakistani citizenship. Pakistani Courts cannot call the person for a trial, neither can they punish a person in absence.
    Something to think about. Recommend

  • Ali tanoli

    Good article Mr Rana and i am thinking why dont they make a law against those who borrows
    millions of dollars from banks and then by law forgiven no matter army genral is ruller or civilion guy and why dont they make law for crruption punishment will be death by stone in the middle of main square…… i wish i was A PM or Chief ex of pakistan.Recommend

  • Parvez

    How the second nationality is obtained is immaterial. The question of loyalty comes in because you pledge allegiance to the other country, this is a serious pledge in the second country. As the late Z.A. Bhutto said there is no issue with you having a second nationality
    but then you can not stand for a parliamentary seat as your loyalty is suspect and that just is not right.Recommend

  • Zehra

    How a different nationality is acquired has no significance whatsoever. Dual Nationality can easily lead to conflict of interest when in a position of power (being an elected member of a national body). That itself is reason enough to bar it.Recommend

  • Haider

    If a person wants to stand for elections in Pakistan and aspires political power of any sort, his/her allegiance must lie solely to Pakistan. Since foreign countries make everyone take the same oath of allegiance irrespective of HOW those people became eligible for applying for citizenship, and does not differentiate them on that basis, neither should Pakistan.Recommend

  • Rania

    The most lame arguments I have ever heard. It is simple, you took citizenship of another country, you are citizen of that country. If you are interested in politics, please go ahead and contest in their general election. You are never forced to apply for citizenship, even if you are married to someone. It is always your choice! Jiay constitution!Recommend

  • Ali Siddiqui

    You’re missing the point Mr. Author, its not about why you have acquired dual nationality, the Court or the Parliament is also not concerned with such reason.

    The only objectionable factor is the fact that you have pledged your allegiance to another country, where in some cases you may also be required to join the armed forces. Oath before acquiring nationality is the same for all people including Person A, B, C & D. Take for example if your argument above is accepted and Person A, B, C & D all holding UK nationality are elected as members of the parliament and subsequently UK, being in a war situation, calls up all four of them and orders them to take up arms, do you think the law in UK would distinguish that since Person B came here as a student we should let him go?

    Further, being a lawyer I know that it is impossible to include such distinctions in the law since in numerous cases there’ll be an overlap of the situations you’ve mentioned and the courts/parliament/EC would find it very difficult to maintain consistency with their decisions to allow dual nationality holders to contest elections.Recommend

  • Huma

    none of the reasons above are sufficient to allow dual nationality holders to be able to stand for elections/elected office in pakistan. Recommend

  • malik

    I support the author’s point completely.

    Without divorcing the first wife, a man marries another lady. Now, can the first wife tell him : “Since you have got another woman, you should stop caring for me” ? Recommend

  • jahandad

    GOOD WORK,,,,all the truth loving Pakistanis will stand by your views,,,,an excellent article,,,,,,,, A PRIME MINISTER OR FEDERAL MINISTER COMES on a recreational visit to Pakistan and enjoys all illegal recreations [looting mismanagement etc] and then FLY back to his masters country ,,,,,,,,,,NOW ANSWER ME,,,,,IS IT RIGHT FOR SOMEONE TO DO TREASON AND STEALING AND PLUNDERS TO 180 MILLION POOR PEOPLE , and then go back safe and unchecked because of the colour of his OR HER passport,,,,OFCOURCE NOT , AND ALAS IF HE COULD CHANGE THE COLOUR OF HIS OR HER SKIN AS WELL,,,IN ORDER TO MATCH HIS OR HER MASTERS,,Recommend

  • Ali

    The dual nationality clause does not bar you from being Pakistani….If you want to represent PAKISTANI public in a PAKISTANI Parliament, u can always fore go ur dual nationality and run for election……Ever thought why is that people are leaving their assembly seats but not dual nationality?????????Recommend

  • Usman

    No individual should be allowed to hold dual nationalities.

    Pakistan is a society where people enjoy showing off their wealth/achievements etc. Imagine a sibling with enough money to move out of Pakistan. Would his brother/sister back in Pakistan feel equal to him? This considering a society full of people dying to move out! Need to create awareness that moving out to obtain nationality is not good. Imposing to keep one nationality would create such awareness.Recommend

  • http://tradersutra.com hariharmani

    @Mo/CA: I appreciate your honesty,in USA,you are not allowed to have 2 passport,period,you can not use your former passport,but they use their passport in Pakistan as the laws are very lax.In USa ,I have to surrender my former passport,it is illegal to claim duel citizenship.I do not know about Canada and U.K.It is immoral for former envoy to be citizen of both,now he is back in USa,if you convict him,you can not enforce the conviction,as he will claim he is USa citizen,when he was appointed envoy,I knew,the usual shenanigan of us,we want the cake and eat it too,then if we don’t then we are not from sub-continent but from Mars.It is a shame to height of low we will stoop.Sab chalta hey.!Recommend

  • Vigilant

    If dual nationals are so much sincere and patriotic then why don’t they give up their other nationality???Recommend