July Issue 2012

Early in June, the Supreme Court of Pakistan suspended Farahnaz Ispahani’s membership to the National Assembly and soon afterwards, Rehman Malik’s Senate membership was also revoked on the grounds that he holds dual nationality.

Newsline, in collaboration with teabreak.pk, hosted a live chat to debate the question of loyalty of dual-citizenship holders and to better understand the legality of these dismissals. Our panelists were Dr Arif Alvi, founding member of the Pakistan Tehreek-e-Insaf, lawyer Saad Rasool who has a masters in consitutional law and Haider K Nizamani, a lecturer of political science at the University of British Columbia who specialises in security studies and South Asian politics. Here is an excerpt from the chat, which can also be accessed on the Newsline website:

Article 63 clearly states that a person who was born in another country and acquires Pakistani citizenship can contest elections, but someone born in Pakistan who ‘acquires’ foreign citizenship later, is debarred. Please comment.

Haider Nizamani: I am not an expert on the citizenship laws of Pakistan, therefore, my response would be looking at the politics of the matter. In order to understand why a person born in another country and who has then become a Pakistani citizen can contest elections makes sense if we look at the unique circumstances of Pakistan’s creation and migration that accompanied it. A big chunk of Pakistanis were born in what is now India and came to Pakistan after 1947.

I think the law is there to enable that generation of people to become elected representatives. My understanding is that under the present law anyone who is a dual national is barred from becoming a member of the National Assembly whether that person is a born or naturalised dual citizen.

Saad Rasool: That is not exactly what Article 63 of the constitution of Pakistan states. Article 63 (1)(c) of the constitution states that a person shall be disqualified from being elected or serving as a member of the parliament if he/she “ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign state.” In this regard, since the article expressly uses the word “acquire,” an inference can be drawn that a person who was born in another country and “acquires” Pakistani nationality can contest and be elected to the parliament of Pakistan. The disqualification in Article 63 is implicit for someone who “acquires” a foreign citizenship, but such disqualification by way of inference does not hit a foreign national who “acquires” Pakistani citizenship. However, a plain text reading of 63 would vindicate this interpretation which, in effect, results in a factual absurdity and possible perpetration of injustice. I think that the law, as it stands now, does not address the mischief of disloyalty. And the debate in this regard must extend beyond the contours of Article 63(1)(c) to include other financial and social factors.

Dr Alvi, if dual citizens are debarred from contesting elections, how would it affect the PTI?

Dr Arif Alvi: PTI strongly believes that Pakistanis all across the world are an asset to Pakistan. In China, for example, the rebuilding process focused on investment from the expat Chinese to make it the powerhouse it is today. Pakistanis all over the world need to help save Pakistan at this critical juncture. They have been doing it for years, but the leadership has constantly fooled them, over and over again. Bring in an honest leadership and you will inspire confidence in the expatriate Pakistanis to re-invest in Pakistan

When in power, PTI would need to debate on legislation to allow Pakistanis with dual-citizenship to contest elections. During that period, PTI will choose to appoint some brilliant people in key positions to help smooth out the complicated affairs of Pakistan. PTI also has filed a petition in the Supreme Court about the rights of overseas Pakistanis to vote.

Are any members of your party dual citizens?

Dr Arif Alvi: Yes, there are a few members of PTI who are dual citizens — they will not be able to contest the elections as stipulated in the constitution of Pakistan. PTI is very clear on this stance.

Is it correct to say that there is no objective barometer to measure a person’s loyalty to the state?

Haider Nizamani: Loyalty is, what in social sciences we call, an ‘essentially contested’ term. What it means is that the definition of such terms is always determined by the values and norms of the individual using them. The famous saying that one person’s terrorist is another’s freedom fighter captures the essence of what I am saying.

That said, a person’s loyalty can be called into question on technical, bureaucratic and legal grounds. For example, when a person is employed in a position where he/she has access to what are called ‘state secrets’ which he/she is not suppose to divulge to anyone, and if that person is found sharing that information with another state in an unauthorised way, then technically he/she has committed a seditious act.

Could the stipulation of a residency period in Pakistan (three, five or seven years), and in the parliamentarian’s constituency, be made as a requirement for all dual citizens to contest elections?

Saad Rasool: While such a model could be worked out, several administrative and legislative matters have to be addressed before it can be implemented in the government structure as it is now… including the NADRA database, national ID cards, voting list, etc. These do not presently allow for a running check of all residency requirements to be incorporated.

But being a resident of a particular area, to the extent of a permanent address and documentation, does not mean that people actually live in that area. People with village addresses work in cities. Those who have a permanent address in one place, often work in a different place. So the issue will not be resolved through some residency requirement, in my opinion.

Haider Nizamani: The modern idea of a citizen participating in political decision-making is based on that person being subject to taxation and laws of that country. Hence, we have the idea of ‘no representation without taxation.’ Loyalty is too slippery a notion to be made the basis for participation.

Can you outline a few possible scenarios in which dual nationality could prove to be a threat to national security?

Dr Arif Alvi: Case in point: Rehman Malik. He runs the interior ministry and has intrinsic knowledge of Pakistan’s state secrets. He may choose to skip to the UK and never return. Moin Qureshi came in briefly and then disappeared. Shaukat Aziz — for all the mess he may have made — also disappeared. These high office-bearers adopt positions of power, that they may, in fact, be debarred from holding in the first place — why should it be considered a pardonable offence?

Saad Rasool: While I take Dr Alvi’s point well, and I think it is important to know that people in high office are loyal to the state, I think there can be an equal argument made to support the need for (some) dual nationals in the parliament. For example, several foreign national Pakistanis (who are dual nationals) vote each time in the general elections, through the embassies, and it might not be a bad idea to have their particular issues be represented through someone who is a dual national too (who might understand some particular issue concerning these citizens, better than the rest of us).

Haider Nizamani: National security, patriotism etc. are pliable notions. We have to have clarity in laws regarding what would constitute treason and then implement those laws effectively. I think it is simplistic to assume that barring dual nationals from contesting elections would ensure national security. Similarly, allowing overseas Pakistanis to vote and be members of parliament because they bring in money to this country is simplistic. By that logic any corporation investing a certain amount in Pakistan could lay claim to representation too.

This article was originally published in the July issue of Newsline.