July Issue 2012
Both Sides of the Fence
It was Newsline(August 10, 2007) that first asked the question: ‘Should expats be eligible for political office?’ At the time, it evoked little interest. But following the US-brokered transition from the Musharraf regime, in which dual citizens came to occupy prominent public offices, there has been a rising outcry against this state of affairs. Curiously, in opposition, a series of articles started to appear in the media in which authors who should know better argued that neither law nor justice prevents dual citizens from holding these offices. This disinformation campaign was stopped by the decision of the Supreme Court to suspend US citizen Farahnaz Ispahani’s, and UK citizen Rehman Malik’s, memberships of parliament, in May and June 2012, respectively.
The court was simply enforcing Article 63(1)(c) of the constitution: “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.” Put simply, if anyone “acquires” a foreign citizenship, then he/she cannot be “elected or chosen as” or even “be” a member of parliament (MP). It is important to understand that “to acquire” is an act (of obtaining a foreign citizenship); it is not a state, situation, or position (of being in possession of a foreign citizenship). Thus dual citizens become ineligible because they do something, not because they have something. The Constitution doesn’t say: if he “has” or “holds” or “possesses” a foreign citizenship; nor does it qualify its absolute bar by “unless he subsequently surrenders it” or the like; nor does it specify conditions under which eligibility lost under Article 63(1)(c) can be regained. It is the act of acquiring a foreign citizenship that leads to ineligibility, which therefore cannot be undone by surrendering the acquired citizenship.
With the Supreme Court’s clear endorsement of Article 63, it is time for members of civil society to press for enforcement of other related laws. In particular, the Political Parties Act requires that “a person shall not be appointed or serve as an office-bearer of a political party if he is not qualified to be, or is disqualified from being, elected or chosen as a member of [Parliament] under Article 63 of the Constitution of the Islamic Republic of Pakistan.” This law also bans “foreign-aided” political parties (defined, inter alia, as a party that “receives any portion of its funds from foreign nationals”), and prohibits holders of elected public offices to hold party offices. In violation of these provisions, political parties have dual citizens as office-bearers; they have established foreign offices where they seek funds; and the President continues to be co-chairman of his party. The Election Commission must enforce these provisions of the law, well before the next elections.
There is also the sensitive subject of foreign influence of the media. “Pakistani TV journalists are some of the easiest to buy or manipulate,” an American diplomat is quoted as having said recently, “My dog is usually fussier.” There is anecdotal evidence that the mainstream media, staffed by dual citizens in key positions, are censoring expressions regarding this concern: articles and letters opposing dual citizenship are not published and online comments are not posted. Under the press law, no non-citizen can own a newspaper without government permission, and the extent of this ownership cannot be “more than 25% of the entire proprietary interest” of the newspaper. The media law is more liberal: both non-resident citizens and even foreigners resident in Pakistan can be granted a license. In the wake of a domestic scandal, the Jang Group is reported to have called for a judicial commission to investigate allegations. The commission’s remit should be enlarged, to review media ownership by foreigners and the potential for dual citizens in influential media positions to further foreign information agendas, and recommend appropriate legislation.
The situation is complicated by the fact that the US and its allies are, as US Defence Secretary Panetta has now openly admitted, at war “in” Pakistan. Moreover, this is an unconventional war (UW). “The intent of the U.S. UW efforts,” explains a 2010 US Army Manual “is to exploit a hostile power’s political, military, economic, and psychological vulnerabilities by developing and sustaining resistance forces to accomplish US strategic objectives.” This, and their information warfare manual, makes a chilling read — and explains more about the orchestrated rise and fall of faux “Pakistani-Taliban” and well-timed acts of ostensibly “religious” and “ethnic” violence, than prevailing media accounts. It was never a secret that the US uses dual citizens in pursuit of this agenda. Under US law, a person loses his/her US citizenship by becoming a parliamentarian in their respective countries. However, Congressional testimony reveals that the law is waived for dual citizens “in advance on a case-by-case basis” if their acts are deemed to be in the “national interest of the United States.” Similar practices exist in the UK, and many “were surprised and intrigued” that Rehman Malik met with British defence ministry officials a day before his meetings at the Home Office, where he allegedly surrendered his British nationality.
It is, therefore, not just a matter of law and politics: Pakistan’s security, if not survival, demands that we privilege pragmatism over sentimentality in our approach to dual citizenship. Nations at war in Pakistan are tightening their dual citizenship laws, rules, and practices in the light of their security concerns; we can do no worse than to emulate them. In the US, “a person who acquires a foreign citizenship by applying for it may lose US citizenship,” and “allegiance” is determined generally by the “country where a dual national is located.” Ironically, our laws prohibit dual citizenship, in principle, but the Zia-ul-Haq regime exempted 16 countries from this bar. By contrast, in China, India, Japan, Malaysia, Netherlands, Norway, and a host of other countries, citizens who acquire foreign citizenship automatically lose their first citizenship. Thus if a child born to Indian parents in the US acquires a US passport, she can no longer be issued an Indian passport and requires a visa to visit India. These examples merit close study.
The ruinous ongoing contest between law and politics should no longer be allowed to undermine our “homeland” security. Identity cards should show multiple citizenships. Dual citizens must be barred not only from parliament, but also from sensitive public and private sector positions. This bar should be extended to heads of public financial institutions and regulators–after all, billions of corruption dollars do not leave the country on camelback; they are transferred in open sight by foreign banks and financial institutions. Not only dual citizens but also citizens with other compromising attachments, who have voted abroad, or have not resided or filed tax returns in Pakistan, should be barred from parliament, and from other sensitive offices. Civic groups must ensure that the next elections inaugurate a sovereign democratic order under — not above — the law.
This article was originally published in the July issue of Newsline.