In the name of the Constitution

Question of Ispahani's disqualification had to be dealt under Article 63(2). But, Court itself suspend her membership.

The Supreme Court’s short interim order of May 25, 2012 suspending Ms Farahnaz Ispahani’s membership of parliament is questionable for at least two reasons. First, the court’s reliance on Ms Ispahani’s act of oath-taking for the US citizenship makes a bad legal basis. Second, the court’s assumption of jurisdiction constitutionally vested elsewhere is problematic and is likely to further compound its relationship with the legislative and the executive branches.

Article 63(1)(c) says that a person shall be disqualified from holding membership of parliament, if “[s]he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State”. Thus, apparently, an elected member of parliament upon “ceasing” to be a citizen of Pakistan or having acquired another nationality may be disqualified from being a member of parliament.

Article 63(2) prescribes that if a question of disqualification of a member of the National Assembly arises, the matter shall be sent to the Speaker who shall refer the question to the Election Commission, unless she decides that no such question has arisen and, therefore, needs no further reference to be sent to the Commission. The language of this constitutional provision is clear and the SC should not have indulged in adjudicating the matter under Article 184(3).

Ms Ispahani, elected by the PPP on seats reserved for women in the National Assembly, had in her submission before the court stated that she is a natural born citizen of Pakistan as well as a naturalised US citizen. At the most, the court could hold that in view of Ms Isphanai’s having acquired US citizenship the question of her disqualification had to be dealt with under Article 63(2). However, the Court took it upon itself to suspend her membership, drawing support from the oath pronounced for acquiring US citizenship which requires declaration to the effect that the person acquiring citizenship “renounces” previous allegiances to other states. But this oath is superseded by law.

The US as well as the Pakistani law allows their citizens to hold more than one nationality in special circumstances. Therefore, mere declaration on oath as mentioned above does not mean in law that one loses previous citizenship(s). But the court seems to be of the view that by taking the oath for the US citizenship in the aforementioned manner Ms Ispahani has effectively ceased to be a citizen of Pakistan, thus her membership is questionable. The court is wrong on this account.

But should the court’s anxiety take precedence over what the constitution prescribes? The Court asks: “…if this Court, which is bound to preserve and defend the Constitution, is not empowered to enforce the fundamental rights of the citizens in terms of Article 184(3) of the Constitution, then which Court will be competent to do so?” Apparently, the court seems to pose a questionable proposition that dual nationality-holders sitting in a committee on defence may violate some fundamental right(s) of the people of Pakistan, which the Court is bound to enforce notwithstanding Article 63(2). In doing so, the Court seems to be taking an untenable position that Article 184(3) is such an overarching provision of the Constitution that it can override any other provision.

The SC’s assumption of the jurisdiction of two other constitutional offices, in this case the office of the National Assembly speaker and the Election Commission, while using one constitutional provision, i.e., Article 184(3), to override another, i.e., Article 63(2), is worrying. Even if it is granted that there is a question of public importance involving violation of fundamental rights, it still had to be dealt under Article 63(2).

Professor Shimon Shetreet, who is famous for his unmatched work on judicial independence, has argued that culture of judicial independence can only exist in a system based on separation of powers, and therefore, the “judiciary must not interfere in a matter, when such intervention will bring about a substantial disruption of relations between branches of government”.

The SC has no power to decide the question of disqualification of a member of parliament, or suspend the membership of a parliamentarian. Nor can it be done in the name of preserving and defending the Constitution, or in the name of national security.

(The SC has suspended the Senate membership of the federal interior minister since the writing of this article.)

Published In The Express Tribune, June 6^th, 2012.