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Petitioner: Syed Mehmood Akhtar Naqvi VS Respondent: Federation Of Pakistan Through Secretary
Court Name: Supreme Court of Pakistan Judge(s): Khilji Arif Hussain, Jawwad S. Khawaja, Iftikhar Muhammad Chaudhry Title:Syed Mehmood Akhtar Naqvi vs Federation Of Pakistan Through Secretary
JUDGMENT
Reported As: K.L.R. 2012 Supreme Court 363 Result: Order Accordingly Judgment JUDGMENT KHILJI ARIF HUSSAIN, J. ~ Through this petition, filed under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973 [hereinafter referred to as 'the Constitution'], the petitioner alleged that in terms of Article 63(1)(c) of the Constitution read with Section 14 of Pakistan Citizenship Act, 1951; any person holding dual citizenship is disqualified from being elected or chosen as, and from being, a Member of Majlis-e-Shoora (Parliament). He stated that as per only TV program aired on Samaa TV Channel, Ch. Zahid Iqbal, MNA; Ch. Iftikhar Nazir, MNA and Mr. A. Rehman Malik, Senator have acquired citizenship of Britain and as such they are disqualified from being Members of the Parliament. By C.M.A. No. 1185 of 2012, he further disclosed that Ms. Farah Naz Isfahani, MNA is also holder of dual citizenship of Pakistan and United States. 2. Accordingly, notices were issued to the respondents as well as the learned Attorney General for Pakistan to file their para wise comments, In response to the notice, leamed Attorney General for Pakistan appeared and raised the question as to whether under Article 63(1 )(c) of the Constitution "a person shall be disqualified from being elected or chosen as, and from being, a member of Majlis-e- Shoora (Parliament), if he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State". The question raised is of the highest public importance and is required to be dealt with as such. 3. By order dated 27.03.2012, we expressed our expectations that the learned Attorney General for Pakistan may collect information from the Members of the Parliament about their dual citizenships, and if it is so whether disqualification has been got; removed or whatever the position may be, and
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that if they desire, they can also appear at their own by filing their replies along with allied documents to clarify their position. 4. In response to our order that any Member of the Parliament may appear on his own by filing a reply, only some of the Parliamentarians came forward by appearing in person or through counsel. 5. The Election Commission of Pakistan also through its para wise comments stated that there is nothing on record on the basis of which it could be ascertained whether any of the Parliamentarians is holding citizenship of a foreign State and that while filing the nomination papers every candidate has to file certain declaration on oath; one such declaration is reproduced herein-below:- "I have consented to the above nomination and that fulfill the qualifications specified in Article 62 of the Constitution and am not subject to any of the disqualification specified in Article 63 of the Constitution or any other law for the time being in force for being elected as a member of the National Assembly/Provincial Assembly". However, in the recent election of the Senate the declaration, that the candidate has not possess the citizenship of any foreign State or County has been taken. 6. On behalf of the respondent No. 5 Punjab Government, objections were taken about the maintainability of the petition, however, relied upon the principles laid down in the case of Umar Ahmad Ghumman v. Government of Pakistan and others (PLD 2002 Lahore 521). 7. On behalf of the Government of Khyber Pakhtunkhwa it is stated that according to Article 63 of the Constitution a person shall be disqualified from being elected or chosen and from being Member of the Parliament in case as citizen of Pakistan he has acquired the citizenship of a foreign State. 8. Malik Waheed Anjum, learned ASC, has filed C.M.A. No. 2382 of 2012 for impleading the following fourteen Parliamentarians who according to him are holders of dual nationality:-- Sr. No. Name Political Party Nationality Dual ((Table)) r. Muhammad Akhlaq PML (N) Pakistani USA 2. Farhat Muhammad Khan MQM Pakistani USA 3. Tariq Mehmood Alloana PPPP Pakistani USA 4. Dr. Muhammad Ashraf Chouhan, PML(N) Pakistani GB 5. Dr. Ahmed Ali Shah , PPPP Pakistani GB 6. Nadia Gabol MQM Pakistani GB 7. Amna Buttar PPPP Pakistani USA 8. Zahid Iqbal PPPP Pakistani GB 9. Khawaja Asif PML(N) Pakistani Canada 10. Abdul Hafiz Sheikh PPP Pakistani USA 11: Anusha Rehman PML(N) Pakistani Canada 12. Sabir Ali Baloch Dy. Chairman Senate Pakistani 13. Ch. Waseem Qadir PML(N) , Pakistani Norway 14. Ch. Nadeem Khadim PML(N) Pakistani UK 9. Mr. M. Shoaib Lodhi has filed C.M.A. No. 2492 of 2012 for impleading of Mr. Jamil Malik, MNA, Mr. Jamshed Rahmatullah, ASC has filed C.M.A. No. 2953 of 2012 for impleading of Mr. Jamil Ashraf, MPA and Mr. Tariq Asad, ASC has filed C.M.A., No. 2487 of 2012 alleging that Sardar Shahjehan Yousaf, MNA is holding the citizenship of U.K. 10. Thus membership of the following Parliamentarians and members of Provincial Assembly stand challenged in the listed petition and C.M. as, noted above:- 1. "Ms. Farah Naz Isfahani, MNA; 2. Mr. A. Rehman Malik, Senator;
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3. Ch. Zahid Iqbal, MNA; 4. Ch. Iftikhar Nazir, MNA; v 5. Mr. Muhammad Akhlaq, MPA; 6. Mr. Farhat Mehmood Khan, MNA; 7. Mr. Tariq Mehmood Alloana, MPA; 8. Dr. Muhammad Ashraf Chohan, MPA; 9. Dr. Ahmed Ali Shah, MPA; 10. Mr. Abdul Hafiz Sheikh, Senator; 11. Ms. Nadia Gabol, MPA; 12. Ms. Amna Buttar, MPA; 13. Kh. Muhammad Asif, MNA; 14. Ms. Anusha Rehman, MNA;. 15. Mr. Sabir Ali Baloch, MNA; 16. Ch. Waseem Qadir, MPA; 17. Ch. Nadeem Khadim, MPA; 18. Mr. Jameel Ahmed Malik, MNA; and 19. . Mr. Shahjahan Yousaf, MNA. 11. Mr. Wasim Sajjad, learned Sr. ASC in reply on behalf of Ms. Farah Naz Isfahani, MNA filed C.M.A. No. 2231 of 2012 and admitted that she is a holder of citizenship of USA, Mr. Khawar Mehmood Khatana, ASC why filed C.M.A. No. 2797 of 2012 on behalf of Ms. Amna Buttar, MPA also admitted that she is holder of citizenship of USA and Mian Abdul Rauf, ASC has filed C.M.As. No. 1975, 2731, 2296, 2597 and 2913 of 2012 on behalf of Ch. Zahid Iqbal, MPA, and stated that he is permanent resident of United Kingdom. 12. Ch. Iftikhar Nazir, MNA has filed C.M.A. No. 1927 of 2012 and C.M.A. No. 2362 of 2012 and specifically denied that he ever acquired the citizenship of United Kingdom. 13. Hafiz S.A. Rehman, learned Sr. ASC has filed C.M.A. No. 3207 of 2012 on behalf of Sardar Shahjahan Yousaf and specifically stated that he (Sardar Shahjahan Yousaf, MNA) is not a citizen of any foreign State. 14. C.M.A. No. 2456 of 2012 filed by Khawaja Muhammad Asif, MNA wherein he specifically denied that he is a holder of citizenship of any foreign State, and supported the adjudication of the matter relating to dual nationality by the Members of the Parliament. 15. On behalf of Mr. Jameel Ahmed, MNA, Mr. Imtiaz Rashid Siddiqui, ASC filed C.M.A. No. 2802/2012, C.M.A. 2882 of 2012 and C.M.A. 3881 of 2012, wherein he stated that his client was adopted by his real uncle in the year 1970 and after adoption under the law of Netherlands he had acquired citizenship of the said country. 16. Mr. Wasim Sajjad, learned Sr. ASC for Ms. Farah Naz Isfahani, MNA argued that the Constitution must be interpreted as a living document to meet the requirements of all times to come, It is contended that word "or" should be read as "and" otherwise Article 62(1) of the Constitution will become redundant. 17. In support of his contentions, he relied upon the case of Al-Jehad Trust v. Federation of Pakistan (1999 SCMR 1379). It is contended by him that his client was a born citizen of USA and as such she cannot be disqualified to be elected as a Parliamentarian. He further contended that the restriction under Article 63(1 )(c) of the Constitution relates to a citizenship of foreign State acquired by a Member after taking the oath of the Parliament, It is further contended by the learned counsel that once a person is elected as a Member of Parliament he can only be removed by filing an Election Petition. 18: Mian Abdul Rauf, ASC for Mr. Zahid Iqbal, MNA argued that his client is not a citizen of U.K. But is a permanent resident of U.K. And as such he cannot be disqualified to remain as a member of the
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Parliament. 19. Mr. Imtiaz Rashid Siddiqui, ASC representing Mr. Jameel Malik, MNA while questioning the maintainability of the petition, contended that his client was adopted as son by his real uncle in the year 1970 when he was minor and after, adoption under the law of Netherlands he had acquired citizenship of the said country. Further contends that since his client was adopted by his real uncle he had acquired citizenship of Netherlands on his attaining the age of majority and that the Court has to keep difference between the persons who have intentionally acquired citizenship of foreign States and one who has not acquired it intentionally, as in the case of respondent who had acquired the citizenship being adopted son of a Netherland's citizen. Further contends that there is no concept of citizenship in the Netherlands, In reply to a query, learned counsel stated that his client has not renounced citizenship of Netherland's till date. 20. Learned counsel appearing on behalf of Mr. Zahid Iqbal, MNA, contended that his client is not holding citizenship of Britain, however, he is a permanent resident of the said country. We have repeatedly asked him to place on record certificate issued by the competent authority in terms of British Nationality Act, 1981 to the effect that he is not a citizen of UK but he failed to do so. 21. Mr. Ahmed Ali Shah, MPA has not disputed that he is holding dual citizenship. Mr. Muhammad Akhlaq, MPA has also not disputed that he is holding dual citizenship. 22. Ms. Amna Buttar, MPA also admitted her citizenship of USA, however, contended that she contested the election believing that there is no bar for a dual citizen to contest the election as a Parliamentarian, It is stated by her learned counsel, that she will not contest the election now after she has come to know that a person holding dual citizenship is not qualified to be elected as member of the Parliament. 23. Mr. Anwar Mansoor Khan, Sr. ASC appearing on behalf of Mr. A. Rehman Malik argued that he has renounced his citizenship through his solicitor as per letter dated 27.04.2008 by filing an application for renunciation on 05.04.2008 and has only, travelled thereafter on Pakistani passport. Jt is contended by the learned counsel that law does not bar a person who is already holder of citizenship for contesting the election of Parliament, It is further contended that Articles 62 and 63 of the Constitution are to be read together, Article 62(1)(a) of the Constitution required qualification for a member of Parliament to be a citizen of Pakistan only and Article 63(1)(c) of the Constitution relates to the post election disqualification and not to the prior election disqualification, if any. It is submitted by learned counsel that this Court cannot look into evidence while exercising jurisdiction under Article 184(3) of the Constitution. He further contended that Mr. A. Rehman Malik has resigned from the membership of the Senate on 9th July, 2012, and subsequent thereto contested fresh election of Senate as his request for renunciation of citizenship of U.K. Has been conveyed to him; by the U.K. Border Agency on 29.05.2012 and if for any reason for the sake of arguments it is accepted that he was not qualified to contest election as Senator in the year 2008, he was qualified to be elected after the acceptance of his-request for renunciation of his citizenship of U.K. In the year 2012 as Member of Parliament and as such he was rightly elected as a Senator. 24. Learned Attorney General for Pakistan has argued that none of the respondents acquired citizenship after they became Members of Parliament or a Provincial Assembly. According to him Article 62 ef the Constitution pertains to pre-election qualification and Article 63 of the Constitution deals only with post-election disqualifications. Further contended that if any untrue statement is given at the time of submitting the nomination papers stating that he is qualified under Article 62 of the Constitution and not disqualified under Article 63 of the Constitution such statement is nothing more than a mistake on the part of the candidate, It is contended by the learned Attorney General for Pakistan that Articles 62 and 63 of the Constitution have to be read together and only a Parliamentarian who has acquired citizenship of a foreign State after he was elected and also ceased to be a citizen of Pakistan at the same time becomes disqualified to remain as a member
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of the Parliament and that otherwise there is no bar for him to hold dual citizenship. He further contended that the word 'or' used in Article 63(1 )(c) is to be read as 'and' otherwise Article 62(1)(a) will become redundant. 25. In reply to a query, learned Attorney General for Pakistan stated that at one point of. Time an amendment in Article 63(1 )(c) of the Constitution for allowing a person holding dual citizenship to contest election was considered by the Government but such bill was not presented before the Parliament. He also contended that there is no restriction barring top functionaries of the State i.e. President, Chief of Army Staff, Governors, Chief Justices and Judges of the superior Courts, Auditor General from holding dual citizenship. His submission was that merely because some of the Parliamentarian are holding dual citizenships they cannot be disqualified as member of Parliament, only because they have to take important decisions or make policy for the country. 26. We have taken into consideration respective arguments advanced by the learned Counsel and perused the record. 27. In order to appreciate the issue involved in the petition, we would like to reproduce here-in- below relevant parts of relevant parts of Articles 62 & 63(1 )(c) of the Constitution as well as Section 14 of Pakistan Citizenship Act, 1951:- "62. (1) A person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless:- (a) he is a citizen of Pakistan; (b) he is, in the case of the National Assembly, not less than twenty-five years of age and is enrolled as a voter in any electoral roll in-- (c) he is, in the case of the Senate, not less than thirty years of age and is enrolled as a voter in any area in a Province or, as the case may be, the Federal Capital or the Federally Administered Tribal " Areas, ' from where he seeks membership. (f) he is sagacious, righteous, non profligate, honest and ameen, there being no declaration to the contrary by a Court of law; and 63. (1) A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament), if:- (c) he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State; or For the sake of convenience Section 14 of Pakistan Citizenship Act, 1951 is also reproduced herein- below. "14. Dual citizenship or Nationality not permitted.- (1) Subject to the provisions of this section if any person is a citizen of Pakistan under the provisions of this Act, and is at the same time a citizen or national of any other country, he shall, unless he makes a declaration according to the laws of that other country renouncing his status as citizen or national thereof, cease to be a citizen of Pakistan. " 28. To appreciate respective contentions raised by the learned ASC, it is necessary to recapitulate basic principles of Interpretation of Statutes. 29. It is a cardinal principle of construction that the words of q statute are first understood in their natural, ordinary or popular sense and phrases and sentences are construed according to their grammatical meaning unless that leads to some absurdity or unless there is something in the context or in the object of the statute to , suggest the contrary by necessary implication. The intention of the Legislator is primarily to be gathered from the language used, which means that attention should be paid to what has been said and also to what has not been said. As a consequence a construction which requires for its support, addition or substitution of words or which results in rejection of words as meaningless has to be avoided. The Courts always presume that the Legislature inserted every part thereof for a purpose and the legislative intention is that every part of statute should have effect. The Court has to discover true legislative intent while interpreting statutes.
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30. It was held in the case of Tata Consultancy Services v. State of Andhra Pradesh (AIR 2005 SC 371), that literal construction not to be denied only because the same may lead to penalty, It is not the duty of Court to either enlarge scope of legislation or the intention of the Legislators when the language of the provision is clear. While construing the provisions of statutes no provision should be rendered meaningless and there is no scope of placing unnatural interpretation on the meaning of language used by the legislators. 31. In "The Interpretation and Application of Statutes', Reed Dickerson, at page .135 discussed the subject while dealing with the importance of context of the statute in the following terms:- ".....The essence of the language is to reflect, express, and perhaps even affect the conceptual matrix of established ideas and values that identifies the culture to which it belongs. For this reason, language has been called "conceptual map of human experience''. 32. In the case of Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. (AIR 1987 SC 1023), Supreme Court of India held that:- ".... If a statues is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the stature is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act...." 33. To interpret the functions the Court is to discover the true legislative intent. To interpret the statute the Court must if the words are clear, plain, unambiguous and only one meaning given to the word, effect is given to each and every word used by the legislators. The Court always presumes that the legislators inserted every part thereof for a purpose and legislative intent in that very part of statute should have effect. The construction which attributes redundancy to the legislators will not be accepted except for compelling reasons, such as, obvious drafting error, In other words, a construction which requires for its support, addition or substitution of words or in rejecting words as meaningless is to be avoided. Primary and foremost task of a Court to interpret the statute is to ascertain intention of the legislators actual or imputed. Having ascertained the intention, the Court must then strive to interpret the statute as to promote/advance the object and purpose of the enactment. For this purpose, where necessary the Court may even depart from the rule that plain words should be interpreted according to their plain meaning. While interpreting the provisions of statute, Court should not consider redundancy or surplus word or words. Can the word "or" used in Article 63(1 )(c) be read as "and". 34. Keeping in view these basic principles of interpretation of Statue/Constitution, we will now examine Articles 62 and 63(1 )(c) of the Constitution, 1973 to ascertain if a person holding citizenship of a foreign State is disqualified tp be elected or chosen as and from being, a Member of the Parliament or not. 35. The issue before the Court is not whether a citizen of Pakistan holding citizenship of a foreign State is loyal to our country or not but what appears that the framers of Constitution, in their wisdom decided that such person should, be disqualified to be elected as member of Parliament, which is the only body to Legislate for the citizens of this country, to cheek Executive, to give guideline for policies of the Government including defence, foreign, finance, etc. Etc. In the case of Iftikhar Ahmad Khan Bar v. Chief Election Commissioner, Islamabad and others (PLD 2010 SC 817), it was held that:- "The Parliament of any country is one of its noblest, honourable and important institutions making not only the policies and the laws for the nation but in fact shaping and carving its very destiny. " 36. The Constitution was framed by its makers keeping in view the situations and conditions prevailing at the time of its making; but being a permanent document, it has been conceived in a
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manner so as to apply to situations and conditions which might arise in future. The words and expressions used in the Constitution, in that sense, have no fixed meaning and must receive interpretation based on the experience of the people in the course of working of the Constitution. 37. The word "or" is normally disjunctive and "and" is normally conjunctive, if any case-law is required, reference can be made to the cases of M/s. Hyderabad Asbestos Cement Products v. Union of India (AIR 2000 SC 314), and Abdul Razak v. Karachi Building Control Authority, (PLD 1994 SC 512), but at the time they are read as vice versa to give effect to the manifest intention of the Legislature as disclosed from the context. 38. In the case of Green v. Premier Glynrhonwy Slate Company, Limited (1928) 1 KB 561, P. 568, it was held by SCRUTTON, LJ, that you do sometimes read 'or' as 'and' in a statute. But you do not do it unless you are obliged because 'or' does not generally mean 'and' and 'and' does not generally mean 'or'. 39. As pointed out by LORD HALSBURY the reading of 'or' as 'and' is not to be resorted to, 'unless some other part of the same statute or the clear intention of it requires that to be done (Mersey Docks and Harbour Board vs. Henderson Bros. (58 LJ QB 152 (HL)). 40. In the Words and Phrases Permanent Edition 7A, the word 'comma' has been defined as under:- -- "A 'comma' is a point used to mark the smallest structural divisions of sentence, or a rhetorical punctuation mark indicating the slightest possible separation in ideas or construction. " 41. It is interesting to mention that Article 103(d) of the Constitution of 1962, is similar to Article 63(1 ) (c) of the Constitution of 1973. However in Article 103(d) after the word "ceased to citizen" and before word "or" the Constitutional framer not inserted "comma (,)" as inserted in 1973 Constitution, which further support view, which we have taken that "or" used in Article 63(1 )(c) cannot be read as "and". 42. We have carefully scanned Article 63 of the Constitution and from a bare perusal of it, it appears that the Legislature before the word 'or' put a comma which manifests the intention of Legislature that "ceases to be a citizen of Pakistan" to be read separately from "holding of citizenship of foreign State" and word 'or' cannot be read as 'and'. Does Article 63(1Hc) relate to post election disqualification only. 43. If we compare Article 63(1) with Article 63A of the Constitution inserted by 18th. Amendment, the intention of the Legislature becomes clear that Article 63(1) of the Constitution applied to pre and post election disqualification, whereas Article 63A applies to post, election disqualification on the ground of defection. 44. Article 63 deals with "A person" disqualified from being elected or chosen as and from being, a member of the Majlis-e-Shoora, whereas, Article 63A deals with the disqualification of a Member of the Parliament. 45. The Legislature intentionally has not used the word "Member of the Parliament" in Article 63 to be disqualified if he acquires citizenship of a foreign State, In terms of Article 63(1), "a person" who holds dual citizenship but wishes to be elected or chosen to become Parliamentarian has to renounce citizenship of foreign State first, otherwise he would be disqualified to be elected, if at the time of submitting his/her nomination paper, he/she was holding citizenship of foreign State. Likewise if any member of the Parliament acquires citizenship of foreign State, he will become disqualified to remain member of the Parliament. 46. As regards the contention of learned counsel for the respondents that Article 63 of the Constitution, is related to pre and post election disqualification the same has no force. On plain reading of the said Article, the Legislature has used the word "a person" which demonstrates the intention…
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