Dual citizens and political office

Citizens & dual citizens are not alike; equality before law does not mean citizens & dual citizens be treated alike.

In a thoughtful op-ed article on January 18 in a Pakistani newspaper, Canada-based lawyer Lalai Abbas argued that the constitutional provision that disqualifies dual citizens from seeking membership of parliament is an unfair “legal injustice” that deprives them of a fundamental right, and constitutes unequal treatment of citizens under law. “When civilised nations have outlawed unfairness by law long ago,” writes Abbas, advocating either barring dual citizenship or allowing dual citizens to seek political office, “the issue before us is not whether or not this injustice should end, but whether it should end this way or that way”. She makes many good points but her views on equality under law and fundamental rights merit further reflection.

The right to equality under law does not mean that the law cannot confer different benefits and burdens upon different classes of citizens. In the United States, citizens born abroad are disqualified from running for President. In Canada, citizens with a net worth of less than four thousand dollars are disqualified from running for the Senate. In Pakistan, citizens with a foreign citizenship are disqualified from running for Parliament. In all three cases, these distinctions between citizens cannot be seen as being ‘unfair’, or ‘the violation of a fundamental right of a citizen, resulting in legal discrimination’.

In the words of an Indian court, this is because: “Equality before law means that among equals the law should be equal and should be equally administered and that the like should be treated alike. Hence, equality before law does not mean that things that are different shall be treated as though they were the same. What it does mean is the denial of any special privilege by reason of birth, creed or the like and also equal subjection of all individuals and classes to the ordinary law of the land” (In BN Ramakrishna AIR (1955) Madras 100). Citizens and dual citizens are not alike; equality before law requires that one dual citizen should not be treated differently from another dual citizen, and not that citizens and dual citizens should be treated alike.

Also, even though they are conflated in ordinary conversation, the law distinguishes between rights and privileges. Rights we are born with; privileges, we receive. Both may be embodied in law, but rights are taken, while privileges are conferred. Even rights can be reasonably curtailed by law, in the public interest: Famously, the fundamental right to free speech does not extend to shouting “Fire!” in a crowded theatre. Privileges, by their very nature, seldom come without strings attached: the ‘right’ to practice law, for example, is in fact a privilege granted subject to the fulfillment of certain conditions.

The ‘right’ to public office is also in fact a privilege. This was put trenchantly by US Justice Oliver Wendell Holmes in 1892 while disposing a petition for reinstatement by a policeman fired for engaging in politics: “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” A citizen may have the right to acquire a second citizenship, but she does not have the right to be a member of Parliament. Justice Holmes went on to observe: “There are few employments for hire in which the servant does not agree to suspend his constitutional right of free speech, as well as of idleness, by the implied terms of his contract. The servant cannot complain, as he takes the employment on the terms which are offered him.”

In Pakistan, both public office and dual citizenship are a privilege; in fact, unlike many other countries, citizenship itself is a privilege granted by law and not a Constitutional right. The law, in principle, bars dual citizenship (see Pakistan Citizenship Act, 1951, Section 14) but to enable expatriates to visit Pakistan without visa, conduct financial transactions, buy, sell, and inherit property, etc., the Ziaul Haq government, by gazette notifications in 2002, granted citizens the privilege of acquiring dual citizenship of an extended list of countries. Clearly, this waiver by notification does not override the Constitution, and in obtaining this exceptional privilege dual citizens forfeit their Constitutional privilege of seeking membership of Parliament (if they are otherwise eligible).

Dual citizens therefore to paraphrase Justice Holmes cannot complain: they acquire their foreign citizenship on the terms offered by the Constitution and laws. There is nothing unfair, unjust, or uncivilised in this, and it is hard to see how this constitutes a legal injustice.

Published in The Express Tribune, February 3^rd, 2012.