Under law, can expatriates govern?

As per law, dual nationality holders cannot hold offices of PM, federal minster, or be members of parliament.

In an op-ed published some weeks ago in The News titled “Dilemmas of loyalty”, Babar Sattar, a respected Islamabad lawyer makes the astonishing claim that: “…the law does not require public office holders, including the prime minister, federal ministers, judges etc. (or parliamentarians for that matter) to cede a foreign citizenship, should they have one, before swearing the oath of allegiance to the Constitution of Pakistan and their respective offices.”

This is like saying that the law does not require a thief to cede the goods he has stolen. Whether technically correct or not, the point is that it is against the law for the thief to have the stolen goods in the first place. In exactly the same way, it is against the law for anyone who holds a foreign citizenship to be a cabinet minister in the first place, so that the question of “ceding” his or her foreign citizenship does not arise.

This is because under Article 63(1)(c) of the Constitution, “A person shall be disqualified from being elected or chosen as, and from being, a member of … Parliament, if … he ... acquires the citizenship of a foreign State...” In other words, while it is lawful for a Pakistani to hold a dual citizenship (of certain specified countries), once he acquires it, he cannot be “elected” or be “chosen as” or “be” a member of parliament. Then, Article 92 of the Constitution requires that cabinet members should be appointed from members of the parliament. Under law, therefore, dual citizens cannot hold the office of prime minister, federal minster, or be a member of parliament.

As for the newly-appointed auditor-general, he may no doubt be a fine upright gentleman. As a Canadian citizen, however, he has taken the following oath of citizenship: “I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada and fulfil my duties as a Canadian citizen.”

At the same time, as auditor-general he is required to take the following oath: “I, [name], do solemnly swear that I will bear true faith and allegiance to Pakistan: That … I will discharge my duties and perform my functions honestly, faithfully in accordance with the Constitution of the Islamic Republic of Pakistan and the law and to the best of my knowledge, ability and judgment, without fear or favour, affection or ill-will, and that I will not allow my personal interest to influence my official conduct or my official decisions.”

In defending this appointment, Mr Babar Sattar asks: does his Canadian passport “make him a criminal or a traitor unfit to serve as the AG?” Obviously not; but this is beside the point. In law, one can be “faithful” to more than one subsidiary lord, but can owe “allegiance” to only one master, who has no superior, and “true” faith or allegiance cannot be shared. This follows from the well-established legal maxim that “no man can serve two masters” (based on the Bible, Matthew 6:24).

The difficulty therefore is not that a dual citizen is a criminal or a traitor; it is that no man can “be faithful and bear true allegiance to Elizabeth II” and “bear true faith and allegiance to Pakistan” as well. For a situation may well arise where as a Canadian citizen the Auditor-General of Pakistan may be influenced by “fear or favor, affection or ill-will” in discharging his duties. That is why the Constitution, wisely, does not allow Pakistanis with foreign citizenships to hold any public office where this may involve a conflict of interest.

Published in The Express Tribune, October 14^th, 2011.