The apex court has rejected an appeal filed against the appointment of special assistants to the prime minister (SAPMs) with dual nationality and has upheld an earlier decision of the Islamabad High Court (IHC).
A division bench comprising Chief Justice Gulzar Ahmed and Justice Ijazul Ahsan on Friday took up the appeal after the third member of the bench Justice Munib Akhtar recused himself from hearing the case.
At the outset of the hearing, Justice Ahsan referred to the apex court's decision on a petition filed against SAPM for Overseas Pakistanis Syed Zulfiqar Bukhari for holding dual nationality said the court had already ruled that a dual national is permitted to work as an special assistant.
A three-judge SC bench on December 26, 2018 allowed Bukhari to serve as an SAPM on overseas Pakistanis but warned that the court would look into it and examine if Bukhari went beyond his mandate and exercises executive powers of a state minister.
Advocate Ikram Chaudhary, however, claimed that his petition was not about dual citizenship. He said the IHC in its July 30 judgment had mentioned the decisions of the Supreme Court.
Justice Ahsan said the apex court's decision also said that the prime minister can appoint a special assistant. The chief justice said the rules of business stated that dual nationals could be appointed as special assistants.
The counsel said that SAPMs were not included in the Service of Pakistan. He said according to Article 93 of the Constitution, only five advisers could be appointed. The appointment of a special assistant was a violation of Article 99, he added.
Addressing the counsel, Justice Ahsan said he had already submitted these arguments before the IHC. The CJ said that the prime minister could appoint special assistants according to the Constitution.
The prime minister could seek the assistance and opinion of any expert, he added. Justice Ijazul Ahsan said the petitioner had only raised the issue of dual citizenship in the high court. The loyalty of dual nationals could not be doubted, he added.
The court after hearing arguments upheld the decision of the IHC and dismissed the appeal.
The Islamabad High Court on July 30 dismissed a petition against the appointment of individuals with dual citizenship as special assistants to the prime minister declaring it non-maintainable.
The petitioner, Justice Party Chairman Malik Munsif Awan, had pleaded that the appointment of four SAPMs, who were dual nationals, be declared null and void as somebody who pledges allegiance to another country should not hold key government positions, making decisions about the country.
He had contended that rule 4(6) of the Rules of 1973, which allows the appointment of special assistants to the PM with status and functions determined by the premier, was in violation of the constitution.
In his judgment, IHC Chief Justice Athar Minallah held that there was no restriction of appointing persons with dual nationality as special assistants.
“The only restriction provided in the Constitution is under Article 63(1)(c) and it is confined to disqualification of a person from “being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament).
“This disqualification is also attracted in case of the membership of the provincial assembly. There are some statutes, which prescribe renunciation of nationality of another state as an eligibility condition for employment. There is no such restriction for appointment of a special assistant under rule 4(6) of the Rules of 1973.”
The judge further noted that the Pakistan Citizenship Act, 1951 expressly allowed a citizen of Pakistan to hold dual nationality as has been described in section 14(3).
“It is not fair to raise doubts or to be skeptical regarding appointment of a dual national as a special assistant by the prime minister. The contributions made by dual nationals cannot be denied. The patriotism of Pakistani citizens holding dual nationality cannot be doubted,” the judgment read.
The IHC on December 8 also dismissed another petition filed against appointment of five unelected advisers and 15 SAPMs. A division bench presided over by Justice Aamer Farooq had unveiled the order that was reserved on September 9.
The writ petition – filed by GM Chaudhry advocate on behalf of a citizen on January 2 – had challenged appointments of advisers and SAPMs that are part of Prime Minister Imran Khan’s cabinet.
The petitioner asked the court to declare sub-rule (6) of Rule 4 of the Rules of Business, 1973 ultra vires to the Constitution and the appointments of advisers and SAPMs a burden on the national economy.
“All such appointments are liable to be set aside ab initio from their dates of appointment with a further direction to declare the actions, decisions or exercise of any power under any law as well as receipt of any financial benefit,” said the petition.
Right now the federal cabinet comprises 50 members, including five unelected advisers and fifteen unelected special assistants.
When he came to power in August 2018, Prime Minister Imran Khan had expressed his resolve to run the affair of his government through a small cabinet. However, following the tradition of the previous governments he continued to increase the size of his cabinet in the coming months.
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