IN THE ELECTION TRIBUNAL FOR SINDH, KARACHI
Election Appeal 35 of 2013
-----------------------------------------------------------------------------Date
Order with signature of Judge
-----------------------------------------------------------------------------Present: Faisal Arab & Munib Akhtar, JJ.
Date of hearing: 13.04.2013
Mr. Jhamat Jethanand, Advocate for the Appellant.
Mr. Abdul Wahab Baloch, Advocate for Mr. Roshan
Ali, opposing candidate.
Syed Riaz Hussain, Law Officer of Election Commission.
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Munib Akhtar, J.: The Appellant filed his nomination papers to contest the forthcoming general
elections to the Sindh Assembly as a candidate for PS-73 Jamshoro-cum-Dadu. The Appellant
had been a member of the previous Provincial Assembly. The Returning Officer, on scrutiny
under section 14 of the Representation of the People Act, 1976 (“1976 Act”) and after hearing
objections taken by another candidate, Mr. Roshan Ali, rejected the Appellant’s papers. It
appears that the Appellant held dual Pakistani-Canadian citizenship and had held it when he
contested the general elections for the previous Assembly in 2008 but had not disclosed this fact
then. Since a dual national cannot be elected to either House of Parliament or a Provincial
Assembly the Appellant ought not to have participated in the 2008 elections as a candidate. (The
Appellant resigned from his seat for this reason in 2012.) He had therefore, the Returning Officer
held, contested in the last general elections on a basis that did not satisfy the requirements of
paragraphs (d) and (f) of clause (1) of Article 62. These paragraphs require a candidate, inter
alia, to be of good character and honest and ameen. The Returning Officer therefore rejected the
nomination papers and Appellant now appeals to this Tribunal.
2.
Clause (1) of Article 63 provides in its paragraph (c) as follows: “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”. This provision of course applies in relation to a Provincial Assembly by reason of Article
113. Before us, the appeal was argued, quite properly, solely on the basis whether or not Article
63(1)(c) applies in the Appellant’s case since this is the crucial point that actually requires
determination.
3.
The Appellant is a citizen of Pakistan by right of birth. He acquired Canadian citizenship
in 2007. Section 14 of the Pakistan Citizenship Act, 1951 (“1951 Act”) provides in its subsection
(1) that a Pakistani citizen who is the citizen of another country shall cease to be a citizen of this
country unless “he makes a declaration according to the laws of that other country renouncing
his status as citizen or national thereof”. However, subsection (3) provides that subsection (1)
does not apply in relation to the citizenship of the United Kingdom and Colonies or any country
notified in this regard by the Federal Government. It is not in dispute that at all material times,
Canada came within the ambit of subsection (3). Therefore, there is no doubt or question that the
Appellant is and at all times has been a citizen of Pakistan.
4.
Learned counsel for the Appellant submitted that the Appellant has made an application
on 29.09.2012 renouncing his Canadian citizenship under section 9 of the (Canadian) Citizenship
Act, 1985 (“the Canadian Act”). This provides in its subsections (1) and (3), insofar as is
presently relevant, as follows: “(1) A citizen may, on application, renounce his citizenship if he
… is a citizen of a country other than Canada …. (3) Where an application for renunciation is
approved, the Minister shall issue a certificate of renunciation to the applicant and the applicant
ceases to be a citizen after the expiration of the day on which the certificate is issued or such
later day as the certificate may specify”. Learned counsel submitted that although the certificate
pursuant to subsection (3) was still awaited, this was a mere formality. For purposes of Article
63(1)(c), the Appellant had to be regarded as no longer being the citizen of a foreign State.
Learned counsel strongly relied on a decision of the Lahore High Court reported as Umar Ahmad
Ghumman v. Government of Pakistan and others PLD 2002 Lah 521 (“the Ghumman case”), and
in particular on the following observations:
“38. The contention of the petitioner’s learned counsel was that the petitioner is qualified
to contest the general election for the membership of the Parliament in terms of Article
62 of the Constitution which pertains to qualification, for a member of the Parliament.
According to learned counsel for the petitioner, in absence of any bar for a dual national
prescribed in Article 62 of the Constitution, petitioner is qualified to contest the elections
and that the disqualification enumerated in Article 63(1)(c) of the Constitution comes into
force only when a person has been elected as Member of the Parliament.
39. The above interpretation of the Constitutional provisions is a rather over
simplification and would lead to anomalous results. Article 63(l)(c) of the Constitution
explicitly mandates that "a person shall be disqualified from being elected or chosen as,
and from being, a member of the Majlis-e-Shoora (Parliament), if he ceases to be a
citizen of Pakistan, or acquires the citizenship of a foreign State". Thus the
disqualification comes into play the moment a person becomes a candidate or seeks
election. This Court has declared petitioner to be a citizen of Pakistan but every citizen of
a State is not allowed to contest the election. The qualifications and disqualifications have
been enumerated in the Constitution and by the law of the land. Since the petitioner has
admittedly acquired citizenship of a foreign country he is hit by the afore-referred
provision and cannot contest elections unless, of course, he removes this disqualification
in terms of rule 19 of the Pakistan Citizenship Rules, 1952.” (pg. 554; emphasis supplied)
Learned counsel relied specifically on the words emphasized. The Rules referred to have
been framed under the 1951 Act, and Rule 19 relates to section 14 thereof and deals with the
declaration of renunciation required in terms of subsection (1) of that section.
5.
Learned counsel further submitted that the aforesaid passages from the Ghumman case
had been reproduced in extenso and with approval by the Supreme Court in its decision reported
as Mehmood Akhtar Naqvi v. Federation of Pakistan and others PLD 2012 SC 1089, which is
now the leading authority in respect of Article 63(1)(c). In this regard he drew attention to page
1109 of the report. His case was that the foregoing decisions made it clear that all that was
required was a declaration of renunciation of the foreign citizenship according to the laws of the
foreign State for the bar contained in Article 63(1)(c) to be removed. The Appellant’s application
under section 9 of the Canadian Act was such a declaration and hence he no longer suffered from
any disqualification in this regard. Thus, he submitted, there could be no doubt that, whatever
may have been the position in the past, the Appellant was entitled to contest the forthcoming
general elections for the constituency for which he had filed nomination papers. He prayed that
the appeal be allowed.
6.
Learned counsel for the opposing candidate strongly contested the appeal. He submitted
that the Appellant was the citizen of a foreign State and had willfully and knowingly concealed
this fact in 2008. The order made by the Returning Officer was fully justified and lawful. He
prayed that the appeal be dismissed.
7.
We have heard learned counsel as above, examined the record and considered the case
law relied upon. In order to appreciate the submissions made, we will first have to examine the
Ghumman case in some detail. The petitioner there had been a Pakistani citizen by right of birth.
In 1994 he (along with his father) became a US citizen. He wished to contest elections in 2002
but was told by the Election Commission that he could not do so on account of his US
nationality. He therefore petitioned the Lahore High Court for suitable relief. This was two-fold.
Firstly, he prayed for a declaration that he continued to be a citizen of Pakistan. The reason why
such relief was necessitated was that at the relevant time, there was no notification under section
14(3) of the 1951 Act in relation to the United States and the petitioner had not made any
declaration of renunciation under subsection (1). The Federation therefore took the position that
the petitioner had ceased even to be a citizen of Pakistan. The second relief sought was of course,
that he could contest the election despite his US citizenship. The Lahore High Court, after an
elaborate consideration of the relevant material and the various provisions of the Constitution
and the 1951 Act as well as the case law, granted the first relief and declared the petitioner to be
a citizen of Pakistan. As to the second relief, the High Court made the observations relied upon
by learned counsel for the Appellant and reproduced in para 4 above.
8.
Mehmood Akhtar Naqvi v. Federation of Pakistan and others PLD 2012 SC 1089 was a
direct petition to the Supreme Court under Article 184(3) of the Constitution. The issue involved
was dual nationalities held by parliamentarians and members of the Provincial Assemblies in
violation of Article 63(1)(c). A number of specific cases were brought to the attention of the
Supreme Court. The Supreme Court made a detailed short order, which is reported at PLD 2012
SC 1054. All the members whose cases were specifically considered and who were found to hold
dual nationalities were held disqualified from being members of their respective
Houses/Assemblies by reason of a breach of Article 63(1)(c). The Election Commission was
directed to obtain fresh declarations on oath from all parliamentarians and members of Provincial
Assemblies to the effect that they were not in breach of Article 63(1)(c). (It appears that the
present Appellant tendered his resignation from the Sindh Assembly as a direct result of these
directions.) It was in these circumstances that, in the detailed judgment, the Supreme Court
referred to the Ghumman case and cited with approval the relevant passages from it at pg. 1109,
as submitted by learned counsel for the Appellant.
9.
One of the cases considered in detail by the Supreme Court was that of Mr. Rehman
Malik, who was a member of the Senate and at that time the Interior Minister of the country. Mr.
Malik held dual Pakistani-British citizenship. His case was that he had renounced his British
citizenship on 25.03.2008, i.e., before he contested the election to the Senate. However, the
Supreme Court noted the relevant provisions of the British Nationality Act, 1981. Section 12
thereof allows for the renunciation of British citizenship, and its first two subsections, as
presently material, provide as follows: “(1) If any British citizen of full age and capacity makes
in the prescribed manner a declaration of renunciation of British citizenship, then … the
Secretary of State shall cause the declaration to be registered. (2) On the registration of a
declaration made in pursuance of this section the person who made it shall cease to be a British
citizen”. The Supreme Court called upon Mr. Malik to place on record a copy of the declaration
as registered by the Secretary of State. This he failed to do despite many opportunities being
given. Eventually, he placed on record a letter dated 29.05.2012 addressed to him by the UK
Border Agency. In this the Agency noted that Mr. Malik was “now” registered as having
renounced his citizenship. A copy of the declaration of renunciation, bearing the stamp of
registration was enclosed with the Agency’s letter. However, Mr. Malik failed to produce this
copy before the Supreme Court despite repeated opportunities. The Court therefore concluded
that he had renounced his British citizenship only with effect from 29.05.2012 and on this basis
held that he had become a member of the Senate in violation of Article 63(1)(c) and was liable to
action accordingly, in terms as set out in the short order (see at pp. 1065-66).
10.
The reason why we have referred to Mr. Malik’s case in some detail is that the stand he
took before the Supreme Court is somewhat similar to the stand that the Appellant has taken
before us. In each case, the submission was and is that the mere filing or making of the
declaration of renunciation is sufficient to remove the bar of Article 63(1)(c). Learned counsel
for the Appellant contends that this result follows directly from the Supreme Court’s approval of
the relevant passages from the Ghumman case. However, it is well established that a judgment
has to be read as a whole. If learned counsel’s reading of this part of the Supreme Court decision
were correct, then the Court would have accepted Mr. Malik’s plea regarding the making of his
declaration of renunciation. However, it is quite clear that it did not do so. The Supreme Court
regarded his British citizenship as having come to an end when it was (or had to be regarded as
having been, in the circumstances of the case) registered by the Secretary of State. In our view
therefore, when the Supreme Court decision is read as a whole, it can only mean that a person
ceases to be the citizen of the foreign State when the final act in this regard is concluded,
whether that be approval of an application and issuance of a certificate in this regard or
registration of a declaration. In our respectful view, it is in this sense and context that the
Supreme Court must be regarded as having approved the relevant passages from the Ghumman
case. In other words, the declaration of renunciation in and of itself is not sufficient to remove
the bar of Article 63(1)(c). It is a renunciation that has become effective in terms of the laws of
the foreign State that is required. To conclude otherwise could, in our respectful view, result in
there being potential for a conflict between different parts of the Supreme Court’s judgment and
such a reading or result is to be avoided.
11.
It is to be noted that section 14A of the 1951 Act allows for renunciation of Pakistani
citizenship upon the making of a declaration of renunciation, but subsection (1)(b) provides for
the declaration to be registered and it is only on such registration that the person ceases to be a
citizen of Pakistan. Thus, if a parliamentarian or a member of a Provincial Assembly, holding
only Pakistani nationality, were to make a declaration of renunciation of citizenship, he would
not be immediately hit by the bar contained in Article 63(1)(c). That would apply to him only
when his declaration is registered. Likewise, if a parliamentarian were to take steps towards
becoming the citizen of a foreign State, e.g., by taking permanent resident status, that would not
mean that he is immediately hit by the bar of Article 63(1)(c). It would apply only when he
actually becomes a citizen of that State. In our view, the words “cease” and “acquire” as used in
Article 63(1)(c) are two sides of the same coin. They must therefore be interpreted and applied in
the same manner. It is only when a person has actually ceased to be the citizen of the relevant
State (whether Pakistan or any other country) or has actually acquired citizenship of a foreign
State, as per the relevant laws of the State concerned, that the bar contained in Article 63(1)(c)
applies or ceases to apply to him (as the case may be). This follows, in our respectful view,
directly from a reading of the Supreme Court decision as a whole.
12.
As noted above, the admitted position is that the certificate required in terms of section
9(3) of the Canadian Act is yet to be issued on the Appellant’s application of renunciation of
citizenship. It follows that the Appellant has not ceased to be a Canadian citizen within the
meaning, and for purposes, of Article 63(1)(c). The bar contained therein continues to apply to
him and he is therefore disqualified from being elected as a member of the Sindh Assembly. His
nomination papers could not have been accepted and therefore no interference with the order of
rejection is called for.
13.
Accordingly, this appeal fails and is hereby dismissed.
JUDGE
JUDGE