IS Pakistan ready to allow persons holding dual nationality to become members of its parliament? The question arose after Prime Minister Imran Khan asked his cabinet upon his return from Washington, D.C. to initiate legal arrangements to enable Pakistanis holding dual nationality to contest elections for Pakistan’s national and provincial legislatures. Public opinion seems to be divided and Imran Khan himself had opposed dual nationals to become legislators in the past.
Currently, the Constitution does not allow persons of dual nationality to contest elections in Pakistan. Article 63 (1) of the Constitution lists what disqualifies a person from being chosen as or elected or being a member of parliament.
One of the disqualifications mentioned in the same article under paragraph (c) reads, “if he ceases to be a citizen of Pakistan or acquires the citizenship of a foreign state”. This means that even if a person does not cease to be a Pakistani citizen but acquires the citizenship of a foreign country, which means dual nationality, he or she will stand disqualified to contest elections in Pakistan. Although several disqualifications were added at later stages after the passage of the 1973 Constitution, this particular disqualification under Article 63 (1) (c) was part of the original Constitution too.
The most serious question about allowing dual nationals to become legislators is the possible conflict of interest.
Interestingly, the interim and current constitution of AJK does not place any restriction on Kashmiris with dual nationality contesting elections and holding membership of the Legislative Assembly. In fact, a seat of the assembly is reserved for Kashmiri state subjects residing abroad. Many such Kashmiris living abroad now hold other nationalities including British nationality, and they are not disqualified from contesting the Legislative Assembly election in Azad Kashmir. If, therefore, some Pakistanis also seek similar rights for dual nationals in respect of Pakistan’s parliament and provincial assemblies, it should be understandable even if one disagrees with the idea in principle.
In order to comply with the directions of the prime minister regarding the facilitation of dual nationals to contest election, the PTI government will obviously need to amend the Constitution for which it requires the support of two-thirds majority in both the National Assembly and the Senate. The PTI does not have the required numbers in either house. It is unlikely that a cross-party consensus can be evolved in the current atmosphere of bitter rivalry between the government and the opposition.
While developing a consensus on allowing membership to dual nationals in the legislatures may be difficult, a compromise may be reached in parliament by allowing them to contest elections while they hold dual nationality but requiring them to renounce their foreign nationality before they take oath as legislators. Senator Azam Swati, the federal parliamentary affairs minister, showed this way out when he indicated that a constitutional amendment had been drafted by the government to allow dual nationality holders to contest election without renouncing their second nationality, but that they would still be required to renounce their foreign nationality before taking their seats in parliament. The proposed amendment, it seems, is not a radical divergence from the present constitutional arrangement, and both the government and opposition may support this compromise proposition.
In recent times, quite a few elected legislators have lost their membership because they had not formally renounced their foreign nationality before filing their nomination papers. Senators Haroon Akhtar Khan and Sadia Abbasi, both belonging to the PML-N, lost their seats after their election was successfully challenged on the same grounds. The proposed amendment will, therefore, be a significant concession for dual nationality holders.
Internationally, one finds varied examples when it comes to dual nationals’ right to contest elections. India represents one of the strictest examples as it does not even allow dual nationality to common citizens, let alone to those who could aspire to contest elections. Bangladesh, like us, does not allow dual nationals to contest elections though dual nationality is not disallowed. The UK allows certain categories of dual nationals to contest elections. Irish nationals or nationals of one of the Commonwealth countries can contest the British parliamentary election. There is nothing explicitly against dual nationals’ right to contest US congressional election; the candidates don’t even have to declare their citizenship status while running for congressional membership.
The most serious question about allowing dual nationals to become legislators is the possible conflict of interest which such legislators may face while considering a matter which concerns the other country. Even if a rule is devised to not allow dual nationals to debate or vote on such potential issues of conflict of interest, it is not possible to clearly demarcate these areas. In a country where nationalist feelings often run very high, even on such trivial matters as international cricket matches with questions being raised over the patriotism of players with foreign spouses, it is probably premature to allow dual nationals to sit in the legislatures.
Another issue may be dual nationals’ relative unlikelihood of devoting adequate time to legislative duties and constituency work because of their possible involvement in business, family or other engagements in the other country. Lately, a number of Pakistani legislators, even ministers, and at least one former prime minister, have been found to hold permanent residence status such as aqama of another country. Although keeping such a status may not be a violation of any law, the questions raised in the courts in this context have been quite embarrassing and serious. Not only has conflict of interest been cited as a possibility but the time devoted to activities in the foreign country can also be seen as constituting a major distraction for dual-nationality legislators, who as elected representatives would have enormous responsibilities in their own constituencies as well.
The writer is president of the Pakistan Institute of Legislative Development And Transparency.
Published in Dawn, August 19th, 2019