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Petitioner: UMAR AHMAD GHUMMAN VS Respondent: GOVERNMENT OF PAKISTAN and others
Court Name: Lahore High Court Judge(s): Tasaddaq Hussain Jillani Title: UMAR AHMAD GHUMMAN vs GOVERNMENT OF PAKISTAN and others Case No.: Writ Petition No,11199 of 2002 Date of Judgment:2002-09-02 Reported As: PLD 2002 Lahore 521 Result: Order accordingly
JUDGMENT
JUDGMENT TASSADUQ HUSSAIN JILANI, J.---Petitioner was born in Kharian (District Gujrat) on 2-10-1971, carries a National Identity Card duly issued by the National Registration Authority and a domicile of District Sialkot. His father. Who is a retired Army Officer, has export business and frequently visits United States and other countries in connection with said business. On 30-3-1994, he and his father acquired U.S. Nationality and were issued US Passports. According to him, he has been told by the Pakistan Election Commission that he cannot contest the elections as he had acquired US Nationality. In the afore-referred circumstances, he seeks twofold relief i,e, (i) a declaration that he continues to be the citizen of Pakistan and (ii) that he can contest the Elections of the Parliament notwithstanding the acquisition of U.S. Citizenship. 2. The comments/written reply submitted by the Ministry of Interior, Government of Pakistan, are to the effect that as the petitioner has acquired US citizenship, he cannot be considered to be a citizen of Pakistan and that Pakistan has no dual nationality arrangement with United States of America. It was, however, admitted in the comments that "a large number of Pakistanis have settled in Europe and America and acquisition of Citizenship would facilitate their business and travels but section 14 of Pakistan Citizenship Act 1951 envisages that any person acquiring citizenship of a country with which Pakistan has no dual nationality agreement ceases to be a citizen of Pakistan. It is pertinent to mention that most of foreign countries while granting their citizenship ask for renouncement of original nationality. Therefore, the citizens of Pakistan while obtaining citizenship of other countries have to follow the laws/rules". Elaborating the stand taken by the Federal Government in the comments, Mr.Salahuddin, Section Officer, Ministry of Interior, Government Of Pakistan, Islamabad appeared before this Court on 26-
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7-2002 to state that the Federal Government has issued notifications with respect to thirteen countries with whom it has dual nationality arrangement and the criteria in this regard has been two-fold, firstly, to facilitate the Pakistani expatriates living in the country regarding which dual nationality is requested and, secondly, if the Municipal Law of the said other country does not prohibit dual nationality. He added that the United States of America is not one of those countries because its Municipal Law is vague with regard to dual nationality. 3. Since the issues raised in this petition involved not only interpretation of certain provisions of the Pakistan Citizenship Act but also Constitution of Islamic Republic of Pakistan, 1973, Mr.Umar Atta Bundial, Syed Mansoor Ali Shah and Syed Shabbar Raza Rizvi, Advocates/ amicus curiae and Khawaja Saeed-uz-Zafar, Deputy Attorney-General for Pakistan were called to assist the Court. Having heard learned counsel for the petitioner, learned Advocates appearing as amicus curiae and the learned Deputy Attorney-General this petition was admitted to regular hearing on 31-7- 2002 to consider, inter alia, the following propositions:-- (i) Whether in the backdrop of the trans-national migration of people on account of the economic and political dynamics of the International system, the concept of dual nationality has acquired greater acceptability in recent times? (ii) Whether subsection (3) of section 14 of the Pakistan Citizenship Act, 1951, insofar as it provides for dual nationality with United Kingdom alone or with any country which the Federal Government may by notification specify, is hit by Article 25 of the Constitution of Islamic Republic of Pakistan, 1973? (iii) Whether in absence of any explicit/objective criterion, the act of the Federal Government in extending the dual nationality arrangement to thirteen countries only; to the exclusion of USA where millions of Pakistani expatriates reside, could be called a reasonable classification? (iv) Whether a person who is a citizen of Pakistan by birth and subsequently acquires USA nationality could be deprived of his Pakistani nationality even if the law in the latter country does not require the said person to renounce Pakistani citizenship? (v) Whether a combined reading of sections 14, 14(a) and 16(4) of the Pakistan Citizenship Act would indicate that the former section is period specific i,e, relatable to the time when the Act was promulgated and its effect? (vi) Whether the petitioner can seek election of Member of Parliament even if he is held to be a citizen of this country notwithstanding Article 63(1)(c) of the Constitution of Islamic Republic of Pakistan, 1973 which inter alia mandates that a person shall be disqualified for being elected or chosen as Member of the Parliament if "he ceases to be a citizen of Pakistan. Or acquires the citizenship of a foreign State"? 4. Learned counsel for the petitioner, in support of this petition, submitted that the petitioner is a Pakistani citizen by birth; that his subsequent acquisition of US Nationality cannot have the effect of depriving him of his citizenship by birth: that section 14 of the Pakistan Citizenship Act is period specific; that the act of the respondent authorities not to treat the petitioner as a Pakistani citizen is violative of Article 25 of the Constitution of Islamic Republic of Pakistan.1973. 5. Khawaja Saeed-uz-Zafar, the learned Deputy Attorney-General opposed the petition by submitting that any one who has acquired US Nationality ceases to be a Pakistani citizen; that the import of section 14 of the Citizenship Act is very explicit and any direction of kind prayed in this petition may nullify the legislative intent. A notice was issued to the learned Attorney-General for Pakistan but he could not appear on account of his pre-scheduled commitments. 6. Mr.Umar Atta Bundial, Advocate submitted that in absence of any guidelines regarding criterion on the basis of which the Government of Pakistan may permit dual nationality, the powers of the Federal Government stipulated in section 14(3) of the Pakistan Citizenship Act are likely to be exercised arbitrarily; that the afore-referred provision indicates that the law maker acknowledges
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the rationale of dual nationality; that the afore-referred provision of law cannot be read in isolation to other provisions of the' same statute; that no Pakistani citizen can be deprived of his citizenship without due process of law; that section 14 of the Pakistan Citizenship Act is not a strict 'provision; that any strict compliance of this provision may be derogatory to sections 4, 5, 6 and 16(4) of the same Act; that section 14(1) is period specific; that the statement of the official of the Ministry of Interior reflects a desire of the Government of Pakistan to facilitate dual nationality with those countries where Pakistani expatriates are residing and that section 14(3) insofar as it creates exception for dual nationality with only a few countries, without there being any reasonable classification, is discriminatory and is hit by the equality clause of the Constitution of Islamic Republic of Pakistan. 7. Syed Mansoor Ali Shah, Advocate/learned amicus curiae submitted that section 14 of the Pakistan Citizenship Act, 1951 is discriminatory and is hit by Article 25 of the Constitution of Islamic Republic of Pakistan, 1973. Reading out various provisions of the US Immigration and Dual Nationality Act he submitted that under. The U.S. Law renunciation of citizenship of origin is condition precedent for acquisition of U.S. Nationality and therefore petitioner cannot have dual nationality. He however, added that the powers given to the Federal Government under section 14(3) are unguided and are likely to be misused. Regarding the eligibility of the petitioner to contest the elections he maintained that the Constitutional provision i,e, Article 63(1)(c) is Very explicit and since the petitioner has acquired a foreign citizenship he cannot contest the elections. 8. Syed Shabbar Raza Rizvi, Advocate/learned amicus curiae submitted that the Pakistan Citizenship Act was enacted in 1951; that the original Act reflects the needs of those times but it has undergone several amendments which are pointer to the changing needs and therefore, the law should be interpreted with reference to those dynamics. He submitted that sections 14 and 14-A of the Pakistan Citizenship Act cater for different eventualities; that under section 14 a loss of citizenship of origin appears to be the immediate effect but a combined reading of various provisions of law would show that a citizen of Pakistan cannot be deprived of his citizenship without due process of law. He further added that a domicile once issued cannot be cancelled and issuance of a Pakistani Passport by the Government of Pakistan is an acknowledgement of the citizenship of a person. 9. Heard. 10. Nationality in common parlance means membership of a particular nation. In International Law it refers to the attributes of a person natural or artificial person belonging to a State with certain rights and obligations which the law may prescribe. Citizenship, on the other hand, is a term of Municipal Law which denotes the relationship between a natural person/an individual and the State conferring the civil and political rights to individuals corresponding with duties. In S.T. Corporation of India v. Commercial Tax Officer etc. (AIR 1963 Supreme Court 1815), at page 1819, these two terms have been defined as under:-- "Nationality has reference to the jural relationship which may arise for consideration under international law. On the other hand 'citizenship' has reference to the jural relationship under municipal law. In other words, nationality determines the civil rights of a person; natural or artificial, particularly with reference to international law, whereas citizenship is intimately connected with civil rights under municipal law. Hence all citizens are nationals of a particular State but all nationals may not be citizens of the State. In other words citizens are those persons who have full political rights as distinguished from nationals who may not enjoy full political rights and are still domiciled in that country." The concept of citizenship is as old as the Greek City States. Down the ages nations and countries have enacted laws regarding acquisition and loss of citizenship and also with regard to dual nationality. These rules and enactments primarily fall in the domain of Municipal Law and not
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International Law. Till recent times, these matters have not been of much concern in International Law. Consequently, there are only a few rules of customary International Law which specifically deal with just a few issues of nationality. Some of these issues are enforced naturalization, cession of territory and instances of diplomatic protection to nationals of a country. The Municipal Laws of various countries demonstrate a varied approach so far legislation on dual nationality is concerned. Countries have enacted laws to encourage some form of dual nationality while there are countries where laws stipulate loss of nationality in case a citizen acquires foreign citizenship. Professor N. BAR -- YAACOV, in an introduction to his book "Dual Nationality", at page 3, lists some of the instances when dual nationality may occur. Those are as under:-- "The following cases of acquisition of dual nationality are possible by the combined operation of the laws of two States: dual nationality is acquired at birth by children born in a State which has adopted the principle of jus soli, by virtue of which nationality is acquired by the fact of birth within the territory of the State, of parents who are nationals of another State which applies the principle of jus sanguinis, under which nationality is acquired by descent, irrespective of place of birth. Dual nationality also arises when an individual who acquires a new nationality by naturalization does not thereby lose the nationality of his home State. Marriage causes dual nationality when one of the spouses acquires the nationality of the other spouse while also retaining the earlier nationality. Transfer of sovereignty may bring about the acquisition of dual nationality by residents of the transferred territory who obtain the nationality of their new sovereign while retaining the nationality of the State within whose territorial jurisdiction they were prior to the transfer." 11. Some of the afore-referred modes of acquiring dual nationality were sought to be discouraged by certain States either by requiring the individual, after he had attained the majority to choose a single nationality or to face the loss of the other, requiring the native born dual nationals residing abroad (as well as those born abroad) to indicate their choice of nationality after attaining the age of majority not by a formal word but by positive act of residence in the country of their intended choice. 12. The concept and practice of dual nationality met a major set-back during cold war. The countries of opposite camps found a negative dimension in this concept and thought that individuals possessing double nationality could cause betrayal and subversion. In 1940 and 1952 laws were enacted in USA which provided active political participation in another country, taking oath of allegiance to a foreign country or serving in the armed forces of foreign State or assumption of office/employment (restricted to nationals of a foreign country alone) or voting in a political action in a foreign State as acts which could lead to loss of nationality. These legislative measures were upheld by the US Supreme Court in MacKenzie v. Hare [(239 US 299(1915)1 and Perez v. Brownell [(356 US 44(1958)]. Commenting on these judgments Professor Peter J. Spiro in "DUAL NATIONALITY AND THE MEANING OF THE CITIZENSHIP", commented as under:-- "The basic notion of denationalization---that is, of expatriating a citizen against his or her will--- was first addressed by the. Supreme Court in MacKenzie v. Hare, in which a woman challenged her expatriation by fact of her marriage to a foreign national, as dictated by the Citizenship Act of 1907. The Court demurred, concluding that so long as the triggering event was itself voluntarily undertaken (there, entering into the marriage) the expatriation was not arbitrarily imposed. Although the voluntariness test did thus afford a duress defence to statutory expatriation---a defense that the Courts sometimes deployed to deny denationalization where an individual appeared to maintain his true allegiance to the United States---Congress was otherwise unconstrained in setting categoric conditions for the retention of citizenship, if the conditions themselves allowed for the exercise of individual will. The laxity of Constitutional restraint was confirmed in the 1958 decision in Perez v. Brownell, in which the Court upheld expatriation for voting in a foreign political election. Justice Frankfurter's
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majority opinion gave a judicial imprimatur to political-branch rationales for expatriating dual nationals, namely, those focusing on the problems of diplomatic protection and of divided allegiance. To these he added another; the possibility that a US citizen's participation in the political affairs of another country could be attributed to the United States itself, thus raising the prospect of 'embarrassing' the US government and of 'embroiling this country in disputes with other nations'. Frankfurter thus found the 'withdrawal' of US citizenship to be a matter implicating the regulation of foreign affairs, subject only to 'rational nexus' scrutiny by the Court." 13. After the end of the cold war and the decline of Macarthyism in USA there was a change of heart qua dual nationality. The U.S. Supreme Court reversed the view taken in the earlier case Perez v. Brownell. [(356 U.S. 44(1958)]. The Court struck down the 1952's presumption of expatriation or loss of nationality where a nationalized alien had returned to his country of origin after more than three years. The Court was of the view that Congress had no power to rob a citizen of his citizenship particularly if acquired through birth. It was held that it could only be lost through voluntary renouncement as it had the protection of 14th amendment of the U.S. Constitution. 14. The afore-referred judgment represented a changed socio-political perception on dual nationality.. Ultimately in 1978 section 401(e) of the Immigration and the Nationality Act, which provided for statutory loss of nationality provision, was repealed. The Act was further amended in 1986 with a result that the US law and policy towards dual nationality has undergone a sea change. In Afroyim v. Rusk [(287 US 253(1967)] petitioner's only fault was that he voted in the election for the Israeli Parliament. The U.S. Supreme Court held that such an act would notlead to loss of citizenship and observed as under:-- "In the face of this amendment as well as increasingly constructive rulings from the lower Courts, the Department of State retreated with a 1990 policy statement which reversed the presumption of expatriating intent upon naturalization in another State. As more recently observed in a 1995 opinion circulated to all U.S. Diplomatic posts, it is no longer possible to terminate an American's citizenship without the citizen's cooperation. This standard in effect allows a U.S. Citizen to undertake any activity in another policy without risk of denationalization. Never mind the mere act of voting, there have been many recent instances of Americans retaining their citizenship at the same time as they have assumed high political office in foreign governments. Under the old regime of exclusivity, the retention of citizenship in such circumstances would have been almost inconceivable. In practice, the only expatriating act which is now subsequently enforceable against an individual seeking to retain citizenship will be a formal renunciation before a U.S. Diplomatic or consular officer overseas. Even then, there may be defences to denationalization. As for dual citizenship, these developments evince its complete toleration, at least as respects birth right U.S. Citizens who acquire or retain additional nationality. Mere naturalization in a foreign State will no longer result in the loss of US nationality." 15. The change of outlook towards dual nationality has not been found in US alone and has not been country specific. With the advent of scientific, communication and dot-corn revolution the world has shrunk into a global village. The economic, political and socio-compulsions have transformed the international system. A dual national is no longer necessarily a threat to any country. Countries are increasingly realizing that any attempt to discourage naturalization of those who would keep their original nationality intact would result in a mass of alien residents within a country who have no stakes in the country of their residence and therefore, may not contribute their bit in the political process. Countries, therefore, have accorded greater acceptance to the notion and incidence of the dual nationality. According to an article on 'Dual Citizenship in Australia' (Current Issues Brief 5 2000-01, in the Bulletin on 6th June), following is the list of the countries which allowed dual nationality, which allow partial dual nationality and which prohibit
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dual nationality (down-loaded through Internet htt://www.Aph.Gov.Au/library/pubs/cib/2000- 01/01cib05.Htm): Countries Allow Dual NationalityCountries Prohibits Dual NationalityCountries Allow Partial Dual Nationality BANGLADESH AUSTRIA ALBANIA CHILE BRAZIL BELGIUM ANTIGUA GHANA CANADA BRUNEI BARBUDA GREECE COLOMBIA BURMA ARGENTINA GRENADA EGYPT CHILE AUSTRALIA GUATEMALA FED.REP. CHINA BAHAMAS JAOTO YUGOSLAVIA DENMARK BANGLADESH HUNGARY FRANCE ECUADOR BARBADOS IRAN HUNGARY FIJI BELIZE IRELAND MECEDONIA FINLAND BENIN ISRAEL IRELAND GERMANY LIVIA ITALY ISRAEL INDONESIA BRAZIL JAMAICA ITALY INDIA BULGARIA JORDON JORDAN IRAN BURKINA FASO LATVIA LEBANON JAPAN COMBODIA LEBANON MALTA KENYA CANADA LESOTHO NETHERLANDS KIRIBATI CAPE VERDE LIECHTENSETIN NEW ZEALAND KOREA NORTHERN PORTUGAL PORTUGAL LATVIA IRELAND ROMANIA SOUTH AFRICA LITHUANIA PANAMA RUSSIA SPAIN MALAYSIA PARAGUAY SAINT KITTS SWITZERLAND MAURITUS PERU AND NEVIS SYRIA MAXICO PITCAIRN SAINT VINCENT TONGA PAKISTAN PHILIPPINES SERBIA(YUGO--SLAVIA) TURKEY PAPUA NEW GUINEA POLAND SLOVENIA TONGA PERU SOUTH AFRICA UNITED KINGDOMPHILIPPINES SRI LANKA UNITED STATES POLAND WESTERN SAMOAROMANIA SINGAPORE SOLOMON ISLANDS SWEDEN THAILAND VIETNAM As per Stanely Renshon, the number of countries where dual nationality has been made permissible is now 93. 16. Propositions No,(ii), with regard to the vires of subsection (3) of section 14 of the Pakistan Citizenship Act, No,(iii) with regard to the act of the Federal Government in confining dual nationality arrangement to thirteen countries only and No,(iv) as to whether a Pakistani citizen by
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birth who acquires US nationality subsequently can be deprived of his nationality, are inter-related and they are being discussed and commented upon accordingly. 17. Part II, Chapter I of the Constitution of Islamic Republic of Pakistan 1973 relates to the Fundamental Rights. Article 25(1) inter alia mandates as under:-- "(1) All citizens are equal before law and are entitled to equal protection of law." The concept embodied in this Article is analogous to Article 7 of the Universal Declaration of Human Rights which stipulates that "all persons are equal before the law and are entitled without any discrimination to the equal protection of law". Article 20 of the Convenant of Human Rights 1950 conveys the same message and this right is reflected in Fourteenth Amendment in US Constitution and Article 14 of the Indian Constitution. 18. This widely accepted principle propounds that among equals the law should be equal, that it should be administered equally and that all like should be treated alike. The concepts "equality before law" and "equal protection before law" appear to be synonymous terms but it would be an over simplification. The former is a negative concept whereas the latter conveys a positive connotation. One discourages and negates all special privileges to any citizen or class and subjects them to ordinary law of the land. The other declares that all citizens must have equal protection if placed in the same circumstance and situation. The importance of this equality provision of the U.S. Constitution is highlighted in Corpus Juris Secundum, Volume 16-A (Article 502) which reads as under:- "Equal protection to all is the basic principle on which rests justice under the law. By virtue of a clause in the Fourteenth Amendment of the Constitution of the United States expressly forbidding it to do so, State may not a deny to any person within its jurisdiction the equal protection of the laws. This clause is a pledge of equal protection of laws or protection of equal laws; and it means, and is guaranty, that all persons subjected to state legislation shall be treated alike, under like circumstances and conditions, both in privileges conferred and in liabilities imposed; but it guarantees only the protection enjoyed by other persons or classes in the same place and under like circumstances, in pursuit of their lawful occupation, and it is not a guaranty of equality of operation or application of State legislation on all citizens of a State". In Ram Krishna Dalmia v. Justice Tendolkar (AIR 1958 SC 538), the Indian Supreme Court was called upon to comment on the validity of a certain statutory provision with reference to Article 14 of the Constitution of India and after an exhaustive survey of the precedent case-law on the point in issue it observed as under:- "A statute may not make any classification of the persons or things for the purpose of applying its provisions but may leave it to the discretion of the Government to select and classify persons or things to whom its provisions are to apply. In determining the question of the validity or otherwise of such a statute the Court will not strike down the law out of hand only because no classification appears on its face or because a discretion is given to the Government to make the selection or classification but will go on to examine and ascertain if the statute has laid down any principle or policy for the guidance of the exercise of discretion by the Government in the…
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