ISLAMABAD - Expressing concern over the employment of former director general Inter-Service Intelligence Ahmed Shuja Pasha and ex-Chief of Army Staff Raheel Sharif in foreign countries, the Supreme Court Wednesday directed the Ministry of Defence to submit the record of permission granted to them for getting employment abroad.

A three-judge bench headed by Chief Justice Mian Saqib Nisar took up the matter of dual national government servants for hearing.

The top court also directed the ministry to submit details of those in the armed forces who had foreign or dual national espouses. It also directed the ministry to carry out an exercise to determine if anyone in the armed forces possessed dual nationality without disclosing the same.

“On our advice, the defence secretary has undertaken to determine or find out if someone in the armed forces having dual nationality has not disclosed it,” the order stated.

The Ministry of Defence was also directed to inform the top court as to whether the provisions of Employment with Foreign Governments Prohibition Act, 1966, apply to the armed forces. 

The top court also issued notices to 27 foreign nationals holding posts in sensitive offices, directing them to appear in person and explain their position.

The defence secretary informed the bench that recruitment of a dual national in the armed forces at any level was impermissible and ads regarding recruitment had also specified the condition that the candidate should be a Pakistani citizen. He further said there was not a single dual national employed in the armed forces.

Justice Ijazul Ahsan, a member of the bench, asked the defence secretary as to whether it was permissible for the persons of the armed forces to marry a dual or foreign national, to which he replied in affirmative.

During the hearing, Employment with Foreign Governments Prohibition Act, 1966, was also cited. Chief Justice Mian Saqib Nisar remarked a document was referred to in previous hearing, stating an ex-civil servant could not join an organisation in a foreign country before completion of two years of retirement. The CJP said former ISI DG General Ahmed Shuja Pasha flew to Dubai for a job just a few days after his retirement.

Similarly, the chief justice remarked former COAS Raheel Sharif went abroad soon after his retirement. He asked the defence secretary whether the Prohibition Act was not applicable to them. The defence secretary replied ex-COAS Sharif had sought an NOC. However, he said he had no information as to whether ex-DG ISI had sought any such permission and that he would seek information in this regard.

The Chief Justice remarked the NOC was supposed to be approved by the federal government and the federal government was defined as the whole cabinet.

He further remarked that people like Pasha and Sharif should be given protection for years as they had key information with them so that they could not be exposed (unintentionally).

The Ministry of Interior submitted its report wherein it was revealed that 27 foreign national officers were holding different sensitive posts.

According to the list produced in the top court, Syeda Sana Batool currently working as Deputy Superintendent in Nadra, a 17-grade officer Madiha Bibi in Education Department of KP and Salahuddin in SSGCL were Afghan nationals.

Similarly, Dr Michele Tariq (BPS-17) in Punjab Health Department is Austrian. The document stated that nine among 27 government officers were German nationals.

The German nationals include Mansoor Ahmed in Institute of E&T Education, Multan, Dr Jamshed Iqbal (OG-IV) in COMSATS (Ministry of Science and Technology), Mina Kharal in Textile Division, Amin Qazi in National Bank of Pakistan, Dr Maryam Iqbal in Punjab Higher Education, Faisal Amir in PARCO/Petroleum Division, Faisal Shafaat, Zakir Hussain and Muhammad Faheem in NUST.

Similarly, Dr Amir Hussan Memon working in Sindh Health Department is Japan national. Yousaf Miraj working in Punjab Health Department and Dr M Numan working in COMSATS are Malaysian nationals. One Ashma Khan in Punjab SHC&ME Health is Nepalese while Adnan Mehmood working in NAB is Norwegian. Rashid Ayub working in Sindh Local Government is Philippine national and Tahir Mehmood working in Nadra is Portuguese.

According to the document, Dr Naeem Dilawar of Punjab Labour & HR is Romanian. Dr Ali Raza Khan of SHC&ME Health Punjab and Dr Sajjad A Khan of Directorate of Malaria Control, KP, are Russians.

The report further stated that Sultana Memon, a grade-18 officer in Sindh DUHS was South African. Arshad Mehmood working in Commerce Division and Farzana Akram working in Punjab School Education are Spanish.

Interestingly, these countries also do not fall under Section 14(3) of the Pakistan Citizenship Act, 1951.

During the hearing, Attorney General for Pakistan (AGP) Khalid Jawed Khan submitted formulations, jointly compiled by him and Additional Attorney General (AAG) Syed Nayyar Rizvi.

The AGP briefed the bench on sections of Pakistan Citizenship Act, 1951. He said a Pakistani citizen acquiring nationality of a country other than 19 countries falling under Section 14(3) of the Act, shall cease to be Pakistani citizen unless he renounced his other nationality by making a declaration according to the laws of that country.

Pakistani citizens having or acquiring another nationality shall retain Pakistani nationality provided the municipal law of the other country does not prohibit dual nationality, he said.

He cited a case decided by the Lahore High Court (LHC) and informed the bench that the Court had interpreted that a Pakistani citizen acquiring citizenship of any country other than those covered under Section 14(3) automatically loses Pakistani nationality on acquiring second nationality.

Regarding 27 civil servants, the AGP said those who have dual nationality of the countries not covered by Section 14(3) cease to be Pakistani citizens and, being foreigners under Section 2 (a) of the Foreigners Act, 1946, they are not eligible for service. He informed the bench that these 27 officers were not entitled to services of Pakistan.

According to the formulations, there is no explicit statutory bar restricting entry of Pakistani citizens having dual nationality into the civil services.

The AGP contended it needs to be examined whether Section 14(3) of the 1951 Act was fully compatible with Article 5, the loyalty to state and obedience to the Constitution and law.

“This is a case about offices/posts through which the executive power of the country and machinery of the state is administered. These are the persons whose entire professional life, expense and thereafter retirement benefits are paid by the public exchequer. There is no principled justification to differentiate between those who make the laws and those who must be citizens of Pakistan and of no other country and those who administer and enforce those laws. If the former cannot have dual nationality, there is hardly any justification for allowing it in the latter’s case,” said AGP Jawed Khan.

He contended an argument was raised that unlike parliamentarians, judges and members of the armed forces, civil servants were not required to take oath under the Constitution. “This does not exonerate civil servants from discharging their duties as their personal conduct is governed by the Government Servants (Conduct) Rules, 1964, while their functions and duties are governed by a large number of statutory provisions,” he stated.

The AGP concluded there was a clear lacuna in the laws which were of such a fundamental nature that it could not be filled through judicial interpretation.

“These are fundamental issues which need to be debated in Parliament by the representatives of the people. This could also be part of the wider reforms of our civil service structure which is highly desirable,” he concluded.