The role of the dual nationals in national politics has once again attracted a lot of interest and attention, which has culminated, at least on the face of it, in the resignation of Tania Adrus — the special assistant to the prime minister (SAPM) on digital Pakistan.
Further, the pending petition before the Hon’ble Chief Justice of Lahore High Court, Lahore, challenging the appointment of dual nationals as SAPMs must have alarmed the remaining three SAPM’s holding dual nationalities, i.e., Nadeem Babar, Shahzad Qasim and Syed Zulfiqar Abbas Bukhari. In the meanwhile, Islamabad High Court has dismissed a similar petition by stating that there is no restriction on the dual nationals to hold the posts of Advisors and SAPMs; and that we cannot doubt their loyalty to Pakistan.
However, unlike the dismissal by the Islamabad High Court on the first day without sending a notice to the Federal Government, the Lahore High Court has issued the notice to the federal government; and now the matter would be finally decided after the arguments of both sides. If the Lahore High Court’s decision is against the government, then the final verdict shall be given by the Supreme Court of Pakistan.
One need not labour hard to know that under Article 63(1)(c)of our Constitution, the parliamentarians have been barred to hold or acquire dual nationalities
One need not labour hard to know that under Article 63(1)(c)of our Constitution, the parliamentarians have been barred to hold or acquire dual nationalities. The superior courts of Pakistan have disqualified a number of dual nationals from contesting in the elections or from holding the membership of the respective legislature. This bar would also be applicable to the ministers, being the members of either house of the parliament, or the provincial assemblies.
To the contrary, and with due deference to the final decision of the superior courts in this respect, the restriction upon holding or acquiring dual nationality shall not apply upon the Advisors and SAPMs, since they are not members of the Parliament or respective provincial assemblies. The intention of the constitution makers, in this respect, seem to be that the Government can seek the expert advice or assistance of anyone in the given field, irrespective of the citizenship status of an otherwise competent person. It is here that the professional skills and expertise of the Pakistani Diaspora have been envisaged by the Constitution to be acquired by the Government for the greater good and interest of Pakistan.
Being an easy bet, the government may be able to get out of the dual nationality conundrum; but what is more worrying for the Federal government is the challenge in the petition before Lahore High Court to the role of a Federal Minister conferred upon the SAPMs and Advisors, who, by virtue of this status, not only take part in the proceedings of the Cabinet with a right to vote, especially in the case of the Advisors; but also head the concerned Divisions or Ministries of the Government.
Given the stringent remarks of the Chief Justice Lahore High Court in this respect, essentially because of the demanding legal and the constitutional provisions pertaining to the issue, the opposition’s clamours of running the government through ordinances and non-elected people, it seems, may bear fruit at last, which would be a colossal set back to the style of governance adopted by the Prime Minister, Imran Khan.
In order to dissect this question, suffice is to have a cursory look at the Articles 90(1), 91(1) and 91(6) of the Constitution. The first Article states that the Federal Government consists of the Prime Minister and the Federal Ministers; the second Article envisages a “Cabinet of Ministers”; and the third Article envisions the collective responsibility of the “Cabinet, together with the Ministers of State” to the Parliament.
The posts of the Advisors or SAPMs are conspicuous by their absence in the aforementioned Articles of the Constitution, meaning thereby that they are not part of the Federal Government or Federal Cabinet; and thus, cannot be given the status of Federal Ministers under the garb of the terms and conditions of appointment of Advisors under Article 93, or the prerogative of the PM to determine the status and functions of the SAPMs under the Rules of Business.
However, the Prime Minister can, under these very provisions, allow the SAPMs and the advisors to take part in the proceedings of the Cabinet as experts, without having the right to vote. It is in this limited context that the “status of the Federal Minister” upon SAPM/Advisors ought to be understood; and not in the wider context of acting as heads of respective divisions or the ministries of the Government.
Nevertheless, despite not being the members of the Parliament, the Advisors have been given the privilege to speak and otherwise take part in the proceedings of the Parliament, or any committee thereof, of which they may be named a member; but, shall not be entitled to vote. However, no such privilege exists for the SAPMs. Except this difference, both these offices are essentially same and have been effectively used for similar purposes.
Therefore, there may be an argument detrimental to the very basis of the posts of SAPMs, that being essentially equivalent to the Advisors, the posts of SAPMs have been created in order to bypass the restriction of five advisors imposed by the Constitution – law does not permit doing a thing indirectly, which cannot be done directly.
There is another pending dispute pertaining to whether other public office holder like the bureaucracy can have dual nationality. This question has been left by the Constitution makers under Article 240 to be determined by or under the law, along with other terms and conditions of their service. In case of Civil Servants, the Civil Servant Acts, read with the rules made thereunder; and in case of non-civil servants/employees of statutory bodies, the respective Act and rules made thereunder would determine whether the dual nationals can hold any posts. For example, in case of the employees of NAB, the terms and conditions of their service under the NAB ordinance, read with the service rules, would determine whether a dual national can or cannot hold any office in NAB.
It is earnestly hoped that this time around the perennial debate of dual nationals and their role in the progress of the country would be settled once for all; this would not only ensure the certainty of qualifications and disqualifications for different public office holders, but would also give a clarity of mind to the dual nationals residing and working abroad about their eligibility or otherwise for various public posts.
The writer is a constitutional lawyer based in Lahore; and can be reached at [email protected]