ON May 25, the Supreme Court of Pakistan suspended Farahnaz Ispahani’s membership to parliament.

However, in a much more drastic step, the SC also stated that Ms Ispahani has, at least on the face of it, ceased being a citizen of Pakistan. The court did so as an interim ruling in a case about dual citizens being members of parliament. To temporarily chuck her out of parliament is one thing; to potentially chuck her out of being Pakistani altogether is quite another.

Ms Ispahani had admitted in court that she is a natural born Pakistani citizen as well as a naturalised US citizen. The oath of allegiance that each naturalised US citizen takes contains the following words, “I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign … state, or sovereignty, of whom or which I have heretofore been a subject or citizen”.

The court has taken the position that this means, at least on the face of it, that Ms Ispahani has renounced her Pakistani citizenship as part of becoming a US citizen.

Therefore, its initial impression is that Article 63(1)(c) of the constitution will apply which disqualifies any person from being a member of parliament if she “ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign state”.

The article of the constitution seems straightforward but the SC ruling is still problematic.

First, it is interesting to note that the court in this case seems to be taking a different tack from the seven-member bench that decided the prime minister’s contempt case. In that case, the court left the question of de-seating a member of parliament on account of his disqualification to the speaker and the Election Commission.

Following the same logic, in this case, it really should be the speaker’s role to ascertain whether Ms Ispahani has lost her citizenship or acquired foreign citizenship under Article 63(1)(c).

Furthermore, the court did not simply take the position that Ms Ispahani has acquired foreign citizenship and that Article 63(1)(c) covers that. Instead, it has gone into a discussion about whether acquiring US citizenship automatically cancels Ms Ispahani’s Pakistani citizenship.

The court seems to suggest that because of the oath of allegiance required by the US, any person who takes US citizenship renounces any previous citizenship that they have. Yet, this finding of the court, even if it is considered an initial finding, goes against an overwhelming amount of evidence available to the contrary in common life.

It is a known fact that the US permits dual nationality. For example, Arnold Schwarzenegger, the governor of California, was a known dual citizen of both Austria and the US. If the US really prohibited dual citizenship would this not have come up during his multiple gubernatorial elections?

The reason for this is simple: regardless of what any country makes a person say on oath, the decision of whether a citizen can renounce his citizenship remains for the state concerned alone.

The citizen cannot renounce citizenship by right, nor can any other state govern whether a person remains a citizen of Pakistan. The SC’s ruling suggests that a person can renounce citizenship merely by swearing it on oath. If this were true, then any person could renounce citizenship and become a stateless person.

Pakistan governs renunciation of citizenship through Section 14 of the Pakistan Citizenship Act, 1951. Strangely enough, in its order the SC makes no mention of Pakistani law on renunciation. Section 14 states that, as a general rule, dual citizenship is not allowed and a person who acquires foreign citizenship ceases to be a citizen of Pakistan.

However, an exception to this general rule is created in Section 14(3) that states that the federal government may notify regarding those countries whose dual citizenship Pakistanis can maintain.

Even a cursory look at the official website of the Pakistan embassy in the US shows that through SRO 581(I)/2002 the federal government has allowed dual citizenship with the US.

Furthermore, the write-up before this notification states that the decision has been taken “after consultation between the two governments and has the full approval of both governments”. So clearly, not only does the US allow naturalised citizens to retain their citizenship but does so specifically in the case of Pakistan.

Yet, despite this the SC has ruled that the words in the oath of allegiance constitute an automatic renunciation of Pakistani citizenship. If this is so, and if the SC upholds this in its final decision, it would have taken a straightforward case and transformed it into a decision that no Pakistani can ever hold dual citizenship with the US because of the words in the US oath of allegiance and that an oath is sufficient for a Pakistani to renounce citizenship of this country.

The fundamental mistake in all of this is the assumption that the oath taken in the US is effective for the purposes of Pakistani law. No matter what the US makes a person say, it is only effective if Pakistani law recognises it. Pakistani law governs how a citizen loses citizenship, not US law — and it is clear that Pakistani law does not consider those words as sufficient for renunciation.

In light of that fact, the court should not have openly and fundamentally questioned Ms Ispahani’s loyalty. She might have understood the words she spoke to obtain US citizenship but she might equally have been entitled to believe that those words did not actually deprive her of remaining loyal to this country.

The writer is a lawyer based in Lahore. He is a barrister-at-law at Lincoln’s Inn.

skhosa.rma@gmail.co

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