ISLAMABAD   -  The Supreme Court on Saturday asked the federal and provincial governments to set deadlines for dual national officials to either give up their jobs or the second nationality.

The court also ruled that the foreign employment of former Chief of Army Staff General (retd) Raheel Sharif shall cease with immediate effect in case the requisite No Objection Certificate (NOC) is not granted by the federal government.

The top court directed the Secretary of Ministry of Defence to file a report regarding ex-post facto NOC for General (retd) Raheel Sharif within one month from the issuance of this judgment.

The judgment regarding Dual Nationality of Judges and Officials of Courts and Government Officials was reserved on September 24, 2018.

Documents were filed in top court showing NOC from the General Headquarters (GHQ) and the Ministry of Defence, but according to Section 3 of the Act of 1966, it is in fact the federal government, or a person or authority authorised by it in this behalf, which can grant permission to an ex-government servant to seek or take up employment as an officer or servant of a foreign government or a foreign agency.

According to the law laid down by this Court’s 2016 judgment in M/s Mustafa Impex Vs The Government of Pakistan, the Federal Government means the Cabinet and the said judgment was in the field when the NOCs were granted.

Attorney General for Pakistan and the Additional Secretary, Ministry of Defence were granted time to look into the matter and apply to the federal government for an ex-post facto NOC/permission.

“Let the Secretary, Ministry of Defence file a report in this regard within one month from the issuance of this judgment and in case the requisite NOC is not granted by the Federal Government within such time, the foreign employment of General (r) Raheel Sharif shall cease with immediate effect,” the top court ruled.

The top court has also directed the Ministry of Defence to continue the exercise to ascertain whether any dual nationals have been recruited in the armed forces on the basis of mis-declaration, concealment or non-disclosure.

It further ruled that the requisite action be taken against such recruited person in accordance with law by the concerned authority.

The 52-page judgement authored by Chief Justice Mian Saqib Nisar further observed that the certain concerns regarding dual national government servants and foreigners in Pakistani services cannot be addressed through judicial interpretation.

The top court asked the federal and provincial governments to consider the top court’s proposal in light of the existing law.

The top court further observed that dual nationals fall within the definition of citizens but it is for legislature to consider whether they should formulate negative list(s) of posts within the government service to which citizens holding dual nationalities or whose spouses are dual nationals, should not normally be appointed for reasons of safeguarding national security and/or vital national interest, except with the permission of the respective Cabinets.

Proposing further, the top court asked the governments to consider whether they should place the names of government servants, who are dual nationals and/or married to dual nationals, before the parliament at the end of each financial year.

 

With respect to foreigners which also include those of Pakistani origin who hold POCs, the top court observed, it is for the Federal and Provincial Governments to consider whether they should impose a blanket ban on employment of foreigners within the Government service.

“The federal and provincial governments should, preferably in conjunction with each other, develop criteria and standard operating procedures with regard to the employment of non-citizens within the government service where relaxation from the general prohibition is deemed necessary in the public interest. The employment of non-citizens should be subject to approval of the respective Cabinets.”

“Provincial governments, to which non-citizens should not normally be appointed for reasons of safeguarding national security and/or vital national interest, except with the permission of the respective organization or parent department,” the top court proposed.

The top court also observed that the government servants, acquiring foreign nationalities with intentions to dispatch ill-gotten gains, deserve no leniency.

The top court ruled that after determination by the competent authority, such officials must be given a deadline of either rescinding their foreign nationalities obtained during service or resign from service immediately.

“This is intended to send a strong signal to all officials in the employment of the Government of Pakistan at any level that they must not deceive Pakistan by breaking the trust that they have been bestowed upon by virtue of their office.”

In this regard, the necessary criteria and standard operating procedures could possibly be incorporated into the existing efficiency and discipline rules/regulations etc. by way of amendment or be adopted independently, the top court said. 

The top court observed that certain restrictions appear to be applicable on the civil servants of federal and provincial government Persons whose spouses are foreigners not citizens of Pakistan.

They shall be guilty of misconduct and shall be liable to any of the major penalties under the concerned efficiency and discipline rules if they marry or promise to marry a foreign national without prior permission of the respective governments.

The top court also noticed anomaly in the Pakistan Origin Card (POC) Rules and observed that the interpretation of the law as it stands at present would mean that foreigners of Pakistani origin are not allowed to hold any sort of employment in Pakistan by virtue of their POC. 

“We find the said legal position to be illogical, absurd and inherently inconsistent,” the top court observed while categorically ruling that holders of POCs are allowed to work in Pakistan just as are any other foreigners.

The relevant authorities, including the Ministry of Interior, the Directorate General of Passports and Immigration, NADRA and BOI are directed to review their existing practice and procedures to facilitate the issuance of visa/work permits to all those POC holders who require the same.

As this would affect all the POC holders who are currently working in Pakistan without a visa/work permit, such persons should apply for the same and the Ministry of Interior is directed to decide the applications in accordance with law within a period of two months, after which the law shall take its own course.

Alternatively, the Federal Government may in conjunction with NADRA consider amending Rule 17(1) of the POC Rules to reflect the correct position of the law allowing POC holders to work in Pakistan by virtue of their POC divesting them of any requirement to separately apply for a work visa/permit as foreigners of non-Pakistani origin are required to.

The Federal Government is required to take a final decision in this regard within one month from the issuance of this order and till such decision is reached, the status quo shall be maintained.

According to Rule 4(5) of the Pakistan Origin Card (POC) Rules as originally promulgated, foreign spouses are allowed to be issued POCs. The top court, however, set aside the condition of five years marriage, introduced by the Ministry of Interior, declaring it ultra vires on account of not approved by the Federal Government.

It is observed that the purpose of top court’s opinion was not to cast any sort of reservation, skepticism or mistrust against dual nationals or foreigners of Pakistani origin adding that this Court has always held the interests of overseas Pakistanis in the highest esteem.

“We acknowledge the services rendered by the overseas community which is not only providing the much needed foreign remittances that contribute to the economy of Pakistan, but immense support by representing Pakistan before various international bodies and organizations. The overseas Pakistani community comprises professionals including doctors, engineers, solicitors, accountants, etc. who have contributed vastly in their respective professions while gaining respect and credibility for their motherland, Pakistan.”

The judgment also emphasized that the instant matter in which information was sought about dual nationals holding important posts in the Government is not directed against those patriotic overseas Pakistanis, rather it was an exercise prompted by the acts of those Pakistani government officials who acquired nationalities of other countries during their tenure without disclosing the same to the Government, and have transferred the proceeds of their corruption abroad, and also relocated their families and themselves post-retirement while continuing to draw pension from the national exchequer.

“It is such people who have undermined the value of the bona fide overseas Pakistanis. It is clarified that the genuine overseas Pakistanis and their families and children are real assets of Pakistan and are more than welcome, rather we encourage them, to return to Pakistan to work in the public and private sectors to contribute as per their choice and experience.”

The top court observed that there are many dual nationals or even foreigners of Pakistani origin who possess great love and affection for Pakistan and express it in the form of foreign remittances or by working in Pakistan.

“Nonetheless, a real concern as raised by the opponents of dual nationality is that of divided loyalties leading to potential national security risks.”

It is in light of both the advantages and disadvantages of dual nationality that leads us to consider the adoption of a balanced approach where certain important positions in government service and public offices where indeed complete and undivided loyalty to Pakistan is required ought to be restricted to those who are citizens of Pakistan only.

“At the same time, keeping the door open for the Pakistani diaspora abroad who are an immense source of talent, skills, experience and competence, dual nationals and foreigners of Pakistani origin (and even non-Pakistani origin for that matter) ought to be allowed to work in various public and private sector entities in Pakistan such as health, education, etc. where they can share their wisdom, training, skills and learning and contribute to a better Pakistan.”