The defect in the dual nationality law

Should students and people who have acquired citizenship through their spouses also be punished?

Sufiyan Rana July 12, 2012
Article 63(1)(c) of the Constitution needs clarification; of that there can be no doubt. At present, it stops an individual from being chosen or elected as a member of parliament if he or she ceases to be a citizen of Pakistan or acquires the citizenship of a foreign state.

The problem with this is two-fold:

Firstly, it fails to recognise the many ways in which citizenship is or can be acquired and, secondly, it fails to distinguish between that which should be acceptable and that which cannot be.

To illustrate my point more clearly, let me give you four examples of people who may have obtained a different nationality.

Political asylum

Person A claims political asylum in the UK on the basis that the state of Pakistan has failed to provide him with protection or has been complicit in the threats towards him or through its own legal procedures, has persecuted him.

Following the acceptance by courts of such allegations, he is granted asylum and subsequently acquires British nationality. He then goes back to Pakistan and wishes to stand for elections.

Student eligible for nationality

Person B is a Pakistani student who is in the UK for the sole purpose of studying, obtaining a job to support his expenses while there, and then going back to Pakistan to undertake full-time employment. Amidst the studying and training, he or she becomes eligible for nationality on the grounds of their residential period covered already and acquires the citizenship. Taken as a great opportunity, this is done largely to make future travel to Britain and other countries, where the British passport does not require a visa, easier.

Once done with his educational responsibility, he goes back to live and work in Pakistan without defaulting on his taxes. He too wishes to stand for elections.

Nationality by proxy of spouse

Person C is an individual who was born and bred in Pakistan. He has studied and worked in Pakistan all his life. He gets married to a British national and moves to Britain to live with his wife. Following the requisite period of residency, he acquires British nationality which will make life a lot easier for him and and his family.

He, regardless of obtaining a British nationality, considers himself to be Pakistani who has a British passport by virtue of his wife. He wishes to stand for elections in Pakistan as well.

The wealthy business man

Person D is a wealthy individual in Pakistan. He invests a significant amount of money to set up a business in England, the beneficiary of which is the English exchequer. By virtue of his residency, given to him due to the investment he undertook in the country, he applies for and acquires a British nationality.

He too wishes to stand for elections in Pakistan knowing that if ever caught in political or legal controversy, he has a safety net to fall on; he can abscond to his second home in Britain.

As the law currently interpreted stands, all the scenarios mentioned above will fail in their bid to stand for the elections in Pakistan. Yet all of the above mentioned people are Pakistani. It cannot be disputed that some of the above should be allowed to stand and some shouldn’t but the law, as it is applied now, would rule out all of them across the board; either the law is correct and we accept its vagaries or it in incorrect and needs to be amended or at least clarified.

I do not, however, believe that the Constitution ever intended to penalise those who fall into the category of Person B or C above but yet it does exactly that. Clearly, those falling in the Person A and D category are the ones the Constitution had in its mind while the law was drafted but, in the absence of any clear distinction, a plague has been set on all types of people whether patriots, non-patriots, malevolent or not.

In my view, the question of 'how' the citizenship is acquired is as important, if not more, as having acquired the actual citizenship itself.

If an individual has acquired another citizenship through claims of state persecution, for instance, availing political asylum in another country, then such an individual should not be surprised to find himself as disqualified from standing for the elections.

However, citizenship acquired through virtues of marriage or study surely cannot be met with the same penalty for it seeks to punish an individual for a legal right and without them having any state restrictions in law prior to their attainment of the citizenship.

Whilst the proposed law on dual nationality is seeking to liberate this band of individuals, it is also providing a blanket for those to whom the doors should remain closed. If however, the proposed bill is passed, Article 63(1)(c) will read
“A person shall be disqualified from being elected or chosen as, and from being a member of the Majlis-e-Shoora if he ceases to be a citizen of Pakistan, or has acquired citizenship of a foreign state except a state with which the federal government has a dual nationality arrangement under the law, before or after the commencement of the constitution (Twenty-Second Amendment) Act, 2012.”

PPP Senator Raza Rabbani recently stated,
I have serious reservations over the dual nationality bill. The government should review it.”

Clearly, there is an obvious state of friction surrounding the dual nationality law from many angles. Take the example of the countries Pakistan has an agreement regarding citizenship with. Senator Aitzaz Ahsan pointed out the controversial oath that is made upon receiving the American citizenship while protesting the bill about dual nationality. So not only should the current law be taken into consideration but also the list of countries that Pakistan apparently has an agreement with regarding dual citizenship.

We also witnessed Rehman Malik's resignation from the senate in regards to the conundrum the dual nationality bill and everything surrounding it has become.

Striking down the law wholly would not be a prudent. Instead the Supreme Court should look to define what is meant by the term ‘acquired citizenship’ because that may enable them to maintain a healthy balance between the spirit of the constitution and the respect for parliament.

Read more by Sufiyan here.
Sufiyan Rana A practising Solicitor-Advocate in England and Wales and a Senior Partner of Azmi-Rana Solicitors.
The views expressed by the writer and the reader comments do not necassarily reflect the views and policies of the Express Tribune.