ISLAMABAD - The Supreme Court in its detailed judgment in the dual citizenship of parliamentarians noted that the conflict of interest is particularly evident when the acquisition of foreign citizenship entails taking an oath of allegiance to the foreign state and renunciation of allegiance to Pakistan.

Acquiring citizenship of a foreign state does create a serious conflict of interest. Such conflict of interest renders a person unsuitable for discharging a fiduciary duty as a public representative. On a number of issues such as drone strikes by the United States on Pakistani territory and citizens, there exist or may arise similar differences between the two states, wrote Jawwad S Khawaja in its additional note. The lead opinion, authored by Justice Khilji Arif Hussain, gives detailed reasons for the court’s position. A three-member bench headed by the Chief Justice Iftikhar Muhammad Chaudhry on 20th September, 2012, through a short order, had declared around a dozen people as disqualified from membership of the National Assembly, Senate and Provincial Assemblies.

The judgment relies primarily on the text of Article 63(1)(c) of the 1973 Constitution which states: “A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament), if: ... (c) He ceases to be a citizen of Pakistan or acquires the citizenship of a foreign State...” The Court has approved the Lahore High Court’s ruling in Umar Ahmad Ghumman’s case (2002), where the same position had been adopted earlier.

Justice Khilji has also addressed, in detail, the interesting arguments raised by, amongst others, Senator Wasim Sajjad-learned counsel representing Ms. Farahnaz Ispahani. Senator Wasim Sajjad had argued that in the present case the Court should avoid the plain meaning of the constitutional text. Instead, it should read the “or” in clause (c) as if it meant “and”. Such an interpretation would lead to the conclusion that acquiring foreign citizenship is not sufficient to warrant disqualification; one would be disqualified only when one surrenders one’s Pakistani citizenship in addition to acquiring foreign citizenship. Justice Khilji dismisses this interpretation, holding that the Courts resort to such interpretations only when the plain meaning is unclear, absurd or patently unjust; or where such a position is suggested by the text itself. Since there are no such compelling circumstances in the present case, the plain meaning must prevail. That being so, acquiring foreign citizenship is itself sufficient to earn the disqualification.

In his concurring note, Justice Khawaja states that the Court, indeed the whole nation, is grateful to  the millions of expatriate Pakistanis who labor abroad and whose remittances are the life and blood of the country’s economy. He clarified that all such citizens, most of whom do not in any case hold dual citizenship, are entitled to constitutional rights which the Court would strive to protect. The present case does not affect their right to hold dual citizenship which is granted by the Citizenship Act, and which has been elaborated in the Umar Ghumman case. All that has been declared in the present judgment is that dual citizens cannot hold the highest elected offices.

Justice Khawaja has also highlighted the spirit underlying this rule. The constitution considers parliamentarians as bearers of a sacred trust. That being so, they incur duties ordinarily expected of trustees. Foremost amongst these duties is the duty of absolute and undivided loyalty to the beneficiaries i.e. the people o Pakistan, and to avoid conflicts of interest. When a parliamentarian acquires foreign citizenship, and particularly when he swears an oath of foreign allegiance and renounces prior allegiances, he creates the possibility of such conflict of interest. Justice Khawaja explains that it is to protect the public and the parliamentarians themselves from such situations that the framers enacted Article 63(1)(c).

It may be noted that none of the respondents in the present case were natural born citizens of a foreign state; all of them had subsequently acquired foreign citizenship. The status of the latter remains to be determined in an appropriate case.