Measuring patriotism
On May 25, the Supreme Court of Pakistan suspended Farahnaz Ispahani’s membership of the National Assembly on the grounds of dual citizenship (of Pakistan and the United States). A three-member bench, headed by the chief justice, observed that Ispahani could not participate in National Assembly proceedings on account of her dual nationality. And just yesterday, as a follow-up, Rehman Malik’s Senate membership was also suspended by the apex court, on account of him holding dual nationality of United Kingdom. Crux of the issue, as discussed by the Supreme Court, has been that those who owe fidelity to another country cannot be entrusted with adequately safeguarding the interests of Pakistan.
The case raises a number of issues worth consideration. Is dual nationality illegal per se? Or is it only a bar for contesting and/or serving as a member of the parliament? Does the law, as it stands today, address the very valid concern that those whose fidelity to Pakistan is questionable should not be members of the parliament? Or, do the law and constitution, while attempting to address this issue, miss the point entirely?
The legal provisions underlying this issue must be considered. First, it needs to be clarified that ‘citizenship’, in Pakistan, is governed by the provisions of The Citizenship Act, 1951 (II of 1951). In particular, section 14 of The Citizenship Act, 1951 lays down the law regarding dual citizenship or nationality. Barring a few exceptions (relating to age and marriage) this section stipulates that a person shall “cease to be a citizen of Pakistan” upon acquiring another nationality. However, subsection (3) of section 14 states that this bar would not apply to any person who “is also the citizen of the United Kingdom and Colonies or of such other country as the Federal Government may, by notification in the official Gazette, specify in this behalf.” In essence, this means that acquiring a second nationality does not strip any person of his/her Pakistani nationality, so long as that other (acquired) nationality is of a country that the Federal Government has so notified.
Fair enough. Dual nationality, therefore, is not impermissible in all cases. What, then, is the problem in cases concerning dual nationality and membership of the parliament? Studying the Constitution of Pakistan – in particular Article 63 (the disqualification provisions for members of the parliament) is helpful in this case.
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.” The intention of the legislature here, as apparent from comments of the Supreme Court in the Ispahani case, is that if you have “acquired” citizenship of a foreign state (or given up/lost your Pakistani citizenship) there is reason to believe that your sense of belonging and allegiance to Pakistan is so weak as to be unworthy of being a member of the parliament. Put another way, the idea of citizenship has been equated with a sense of ‘patriotism.’ And to the extent that you ‘acquire’ another citizenship, your sense of patriotism is unworthy of elected office.
In the case of a person who “ceases to be a citizen of Pakistan”, the constitutional provision makes sense. However, in the second part of the provision, the language does not bar anyone who “has dual nationality” – no. The bar is only against someone who “acquires” a foreign citizenship. A number of issues flow from this.
First, the provision expressly disqualifies a person who “acquires” a foreign nationality. However, conversely, the bar of disqualification from being a member of the parliament does not affect a person who was born a foreign national and later “acquires” Pakistani citizenship. Such a person is carefully carved out of the disqualification clause, and such person’s loyalty to the State is (apparently) deemed ‘stronger’ than someone who does the reverse. Now, the natural example of someone acquiring Pakistani nationality would be a person of Pakistani origin, who was born abroad and later becomes a citizen of Pakistan. However, expanding the logic a little, even a foreign national (say some guy named Raymond Davis, for example) who “acquires” Pakistani citizenship is not disqualified under Article 63(1)(c) per se.
Second, even if a stretched-out argument is made to suggest that the acquiring of Pakistani nationality is a declaration of loyalty to the State of Pakistan and acquiring a foreign nationality is the opposite thereof, the logic falls apart when applied to real-life examples. For example, Javed Ahmed Ghamdi, who has had to flee Pakistan after his criticism of the Salmaan Taseer murder, may have to (out of compulsion) seek citizenship of another country to live there (for his safety). In such a case, a person like Ghamdi (despite his apparent love for Pakistan and for Islam) will be disqualified from seeking public office under Article 63(1)(c). On the other hand, if some Afghan militant, who may even have fought against the Pakistan army, subsequently takes refuge in our country for long enough to become its citizen, can easily make a bid for elected office. Is Ghamdi’s loyalty and fidelity to the State of Pakistan less than that of such a militant? Does Article 63(1)(c), the way it is drafted at present, address the issue of loyalty to the State of Pakistan? Does it accurately measure a person’s sense of patriotism?
Third, it must also be asked whether holding a passport from a particular country alone is an appropriate measure of an individual’s loyalty and patriotism to that State? Should other factors not trump, or at least supplement, the issue of nationality in measuring an individual’s patriotism? What about a person who acquires a foreign citizenship but has all his/her assets in Pakistan, pays the full measure of taxes on such assets and generates employment in our economy, vis-à-vis someone (say Asif Zardari or Nawaz Sharif) who is not a foreign national but has his/her assets abroad? Who is more loyal, and therefore better suited, to being a member of the parliament?
There is no squabbling with the idea that members of the parliament should have an unimpeachable record of patriotism and loyalty to the state of Pakistan. But the truth is that there can be no objective measure of calibrating a person’s loyalty to the State. Any attempt to ascertain loyalty and patriotism must necessarily look beyond the contours of a mere passport or nationality, towards a more comprehensive assessment. And the disqualification provision of Article 63(1)(c), as it reads for now, certainly does not address the issue.
The author is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School. He can be reached at: saad@post.harvard.edu
The views expressed by this blogger and in the following reader comments do not necessarily reflect the views and policies of the Dawn Media Group.
Most countries do not allow dual nationality for government positions. However, Pakistan is not like most countries and faces a crises. Foreign nationals with Pakistani citizenship, offer new ideas and opportunities. Their only reason for keeping a second passport is to act as an economic surety, in the event their move to Pakistan does not work well. Perhaps an exception can be made.
I agree with the author, citizenship of another country does not mean ialoyality to the country. But then the writer is a Harvard graduate and most judges in this country are lawyers who couldnt make it in the profession. Na
The BIGGEST enemies of Pakistan aren't India, Israel or America. It's its' corrupt politicians and so-called leaders.
I found several weaknesses in argument. I will talk about each one of them but I would like to start by saying that laws are based on customs and norms of a society and are an outcome of a proper policy making process. A process that is also dependent upon proper context. So if someone's elected representative in Pakistan was found to have acquired a nationality, what is the first thing that will come to a majority's (of the constituents) mind?
Here are some questions that came to my mind upon reading your article:
- Why should a 'naturalized' Pakistani be superior to others as far as patriotism is concerned?
- Can patriotism be measured? One would think that this would be a highly subjective question? Has the constitution of any country attempted to define it – directly?
- I don't understand your example of an Afghan militant becoming a Pakistani by virtue of residence. If a militant is given citizenship under a 'refugee' status, then it would probably make sense. BUT, the important question is : Why would a 'militant' be given any sort of status in Pakistan?
- At the end, you talk you tried to make some sort of convenient link between wealth, job creation and patriotism. What has wealth and job creation got anything to do with patriotism? I could be an American owner of a huge franchise in Pakistan that employs thousands of Pakistanis. If I am a law abiding Pakistani citizen but chose to invest my wealth elsewhere and create jobs for several non-Pakistani citizens, will you brand me 'unpatriotic'?
- Also, what is the connection between tax compliance and patriotism? This is a slippery slope. Granted that there should be a proper system of taxation in the country and a policy to support it, by your argument, more than half of taxable persons in Pakistan will be 'unpatriotic'. In my opinion, this should not be a starting point.
As they say — Patriotism is the last refuge of the scoundrels — of all the countries Pakistan's should be the last to provide that refuge.
On one hand, when the non-resident and Pakistanis with dual nationalities remit/invest foreign currency into Pakistan they are encouraged and on the other hand they are not trusted, this is dual policy of the government. How can the government judge the patriotism a Pakistani who has acquired another passport on account of his/her living abroad be different from the one who does not have any? Unlike the Middle Eastern Arab countries where you live all your life and they don't give you any citizenship, and they still want you to invest in their countries (Dubai real estate market is an example) whereas the UK, USA and Canada allow dual nationalities and provide equal rights to every citizen, which is fair and democratic.
Now, suddenly the Pakistan government has picked up this point to make an example that whomsoever they don't like (I am not favouring Isphani or Rehman Malik) they can strip them from the senate or, govt. post by saying they owe fidelity to another country? Also, I have heard that this is being done because by virtue of holding another passport they can fled the country easily. This is absurd because, if any of the top politicians or a general wants to fled the country without having a dual citizenship, he can do so faster than a mere senator or a govt. official.
Therefore, imo this new (or may be an existing law) law has come to the limelight only to divert attention of the public from major issues that are prevailing in the country. The SC and the constitution cannot do anything against the PM of the country, the memo-gate scandal fizzled out without any decision, the lawlessness and uncertainty in the country is at its peak, the economy is in tatters and nothing is being done in that respect, whereas issues like this dual citizenship is the talk of the day? Why should it be so important when it is not illegal? The UK, USA and the Canadian governments allow dual citizenship so, why cry so much over this trivial issue?
What if the other countries impose a ban on the non-residents from PK and other sub-continent countries that they should not send any money back to their country of previous residence? The amount may not be in billions but definitely in hundreds of millions of dollars. Is Pakistan ready to deal with another foreign exchange crisis?
Sorry my friend but I think you have mixed a few issues here, besides making some inaccurate statements:
1. The government has not raised the issue. It is the Supreme court that is dealing with this issue.
2. This is not a "new" law as you put it, the Citizenship Act was promulgated in 1951 and our constitution was written in 1973.
If the law of the land says that if you have acquired the nationality of another country then you are not eligible to stand for elections, then that is what it says and that is besides your personal opinions on the wisdom behind the law.
The point of this rule is not, as you said, to put it "judge someone's patriotism". The law tries to protect people in public office to pursue interests which may not always be in the interest of the country and that is a genuine concern. Mere existence of another nationality does provide a good basis of a risk of being unfaithful to one country.
As to your point about other countries taking action: This does not concern them at all, as this is not an issue re whether someone should be allowed to hold a dual nationality or not (where in most cases arrangements are mutual with countries) but this is a local question for Pakistani politicians. So this provision in law does not at all prejudice those mutual arrangement on dual nationality we might have with other countries.
Your point about remittances: I think remitting money into the country is only helpful for the country, whereas before asking the same person who has foreign nationality to come and act as, say the finance minister for a few years the election commission would need to be sure that the person's long term interests are with Pakistan.
And I know that there are a lot of other issues in our country that need to be tackled, but that does not mean that this issue is not important. Also it is not like we have a binary choice of whether this issue or that. We can always aim to address all issues that come to attention.
So I think you have missed the point altogether.
I dont agree – The persons with dual nationality will have dual intention – will save all his money in foreign banks looted during his tenure as a minister from tax money (indirect tax) the poor people of Pakistan pays from their hard money. That's matters in leaving the country with looted money from poor people's pocket.
If Patriotism to be equated with the country only on the basis of living over there – then why not make is compulsory for the holding Public office for individual who are only Born in Pakistan, Living in Pakistan, Buying and eating Pakistani food and Educating in Pakistani schools only – no Degree from abroad should be allowed even – because foreign education will somehow create hate for Pakistani society. After all this is a Land of PURE only.
No double personality , no dual nationality – aren't we living in ISOLATION in year 2012 !!!
"Patriotism is the virtue of the vicious."
Oscar Wilde
What about punishment for those who concealed this basic information to Election Commission? Or did Election Commission never asked this to the candidates ??Just suspending thier parlimenterian status does not provide the full justice to the people of Pakistan. Taking Oath is a big thing isnt it ? I wonder how people will face Allah…
I am vehemently against dual nationality of politicians, bureaucrats and establishments. If their children and families are living overseas and getting education there , this means those dual nationality holders have two homes and therefore can never unilaterally act to benefit this country if the country of their second home is involved.
However an ordinary citizen who has no stakes in the running of this country is a different matter. As they are not directly involved in making decisions or formulating laws, or have access to sensitive information pertaining to the security and survival of this nation. Dual nationality may be allowed to them., but dual nationality to those in Parliament bureaucrats and establishments holding sensitive positions should be forbidden.
We should only allow those to lead us , who have no stakes overseas and they wont pack up and leave at the time of serious crisis or send their families away in the name of security.