Daily Times

“Dual citizenship has been normalised as an incident of globalisation. Nonetheless, some states will continue to obstruct individuals from holding the status.”

When Professor Peter Spiro made the above observation in his 2010 article ‘Dual citizenship as a human right’, he was not alluding to Pakistan but the recent proclamations by the Honourable Chief Justice of Pakistan Iftikhar Muhammad Chaudhry certainly raise the concern if this is where Pakistan is heading. The Chief Justice and the Honourable Justice Jawwad Khawaja made some stern observations — bordering on allegations — while hearing a petition filed by Syed Mehmood Akhtar Naqvi seeking disqualification of three Pakistan People’s Party legislators holding dual nationality. The prime target of these judicial jabs was Ms Farahnaz Ispahani, MNA, who according to media reports is a citizen of Pakistan by birth and also a naturalised citizen of the United States.

There are some serious issues with the august bench’s observations. One must recall that not too long ago the Supreme Court had appointed a judicial commission to probe allegations against Ms Ispahani’s husband, the former Ambassador Hussain Haqqani in the so-called Memogate. When Mr Haqqani did not appear before the said commission on account of health and security reasons, the presiding judge, Honourable Justice Faez Issa had, in the April 6, 2012 hearing, threatened to ‘summon’ Mr Haqqani’s wife and children to court if he failed to appear before the commission in person. While no one doubts the honest intentions of the current bench hearing the dual nationality case, it still is rather disconcerting to see Mr Haqqani’s wife dragged to the court in just over a month after Justice Issa’s threat. To avoid any concerns about victimising Mr Haqqani’s family, it would have been prudent for the bench to include in the proceedings the 35 odd other parliamentarians, including ones from the Pakistan Muslim League-Nawaz, who allegedly hold dual citizenship. After all, justice must also be seen to be done, especially by a court given to long-winded speeches on morality.

Besides the impression, hopefully misplaced, of dual standards being applied in the present case, there are concerns about how the court tried to interpret the US law with, prima facie, very little research. The judges impugned the following portion of the naturalisation oath of allegiance to the USA, “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.”

The US Department of State clearly recognises the dual national status under the law and specifically states, “Dual nationals owe allegiance to both the United States and the foreign country. They are required to obey the laws of both countries.” The State Department also clarifies that, “In order to lose US citizenship, the law requires that the person must apply for the foreign citizenship voluntarily, by free choice, and with the intention to give up US citizenship.” The bench thus assumed erroneously that by taking the US oath of allegiance, a Pakistani citizen automatically abjures his/her Pakistani nationality. The US law deals separately, and on a case-by-case basis, with expatriation of citizens holding public office in other countries. Furthermore, like the US law, Pakistani law mandates that to renounce Pakistani citizenship, one has to do it formally by completing the form titled Declaration of Renunciation of Citizenship under Section 14-A of the Pakistan Citizenship Act 1951.

Justice Khawaja had also remarked on the US citizenship pledge that “if a gun is required to defend the US than it would be picked up.” It is an interesting observation given the fact that most dual nationality arrangements are between friendly countries and one reason that plural citizenship in now a world norm rather than an exception is the decline of xenophobic jingoism. However, if such a hypothetical situation does arise, it would portend a dilemma for thousands of Pakistani-Americans and not just the mild-mannered Farahnaz Ispahani, who probably has never even squished a mosquito. In such situations, as was the case during World War II, several German and Japanese-Americans renounced their US citizenship. At present, the US armed forces are volunteer forces and no draft is in effect, rendering the honourable judge’s observation a non sequitur.

The current proceedings are focused on Article 63(1) (c) of the Constitution. Applied for the first time ever in the March 2012 Senate election, it says, “A person shall be disqualified from being elected or chosen as, and from being, a member of Parliament, if he ceases to be a citizen of Pakistan or acquires the citizenship of a foreign state.” It would be interesting to see how the court interprets the ambiguity around the transitive verb ‘acquires’ in this case. And after that bridge is crossed, the key question would be of the supremacy of parliament and the role of the Speaker of the National Assembly and the Chairman Senate as custodians of their respective houses as Article 63 (2) states: “If any question arises whether a member of Majlis-e-Shoora (Parliament) has become disqualified from being a member, the Speaker or, as the case may be, the Chairman shall, unless he decides that no such question has arisen, refer the question to the Election Commission within 30 days and should he fail to do so within the aforesaid period, it shall be deemed to have been referred to the Election Commission.”

It is tragic that when major democracies like the United States, Canada, Britain and developing countries like the Philippines and Mexico allow dual citizens to hold public office, the Pakistani Supreme Court has seized itself with yet another political question in which its initial comments appear quite reactionary and out of sync with the community of nations. It is however a welcome sign that Prime Minister Yousaf Raza Gilani has not only elevated the level of discourse above partisan politics but by acknowledging the right of all dual citizen Pakistanis to run for public office has set the stage for revisiting Article 63(1) (c), parts of which should have been done away with in the 18th Amendment to the Constitution.

The writer can be reached at mazdaki@me.com. He tweets at http://twitter.com//mazdaki