IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
PRESENT:
MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, HCJ
MR. JUSTICE JAWWAD S. KHAWAJA
MR. JUSTICE KHILJI ARIF HUSSAIN
CONSTITUTION PETITION NO.05/2012 AND CMA NOS.2382,
2487, 2492, 2876 & 3446/2012.
(Under Article 184(3) of the Constitution)
Syed Mehmood Akhtar Naqvi Petitioner
VERSUS
Federation of Pakistan thr.
Secretary Law and others Respondents
For the petitioner (s): Petitioner in person
(in Const.P.5/2012)
For the applicant (s): Malik Waheed Anjum, ASC,
In-person
(in CMA-2382/12)
Dr. Tariq Asad, ASC,
In-person
(in CMA-2487/12)
Ms. Samira Basharat,
In-person
(in CMA-2876/12)
Mr. M. Shoaib Lodhi
(absent CMA-2492/12)
On Court Notice: Mr. M. Irfan Qadir,
Attorney General for Pakistan
Assisted by
Barrister Shehryar Riaz Sheikh, Adv.
For the respondents: Mr. Dil Muhammad Khan Alizai, DAG
(1,2,4,6,8,& 10) Raja Abdul Ghafoor, AOR
Syed Sher Afghan, D.G. (Elections)
For respondent No.3: Mr. Qasim Mir Jat, Addl. A.G. Sindh
Constitution Petition No. 05 of 2012 -: 2 :-
For respondent No.5: Mr. Jawwad Hassan, Addl. A.G. PB.
For respondent No.7: Mr. Azam Khattak, Addl.AG Balochistan
For respondent No.9: Syed Arshad Hussain, Addl. A.G. KPK
For Ms. Farah Naz Isfahani: Mr. Waseem Sajjad, Sr. ASC
Ch. Akhtar Ali, AOR assisted by
Mr. Idrees Ashraf, Adv.
For Mr. Zahid Iqbal, MNA: Mian Abdul Rauf, ASC
& Dr. Ahmad Ali Shah, MPA:
For Mr. A. Rehman Malik: Mr. Anwar Mansoor Khan, Sr. ASC
Mr. Muhammad Azhar Ch., ASC
Raja Abdul Ghafoor, AOR
For Ms. Amna Buttar, MPA Mr. Khawar Mehmood
& Mr. Wasim Qadir, MPA Khattana, ASC
For Tariq Mehmood Aloana, Mr. Saeed Yousaf, ASC
MPA
For Ch. Iftikhar Nazir, MNA Mian Sultan Tanvir, ASC
For Ms. Anusha Rehman, Kh. Haris Ahmed, Sr. ASC
MNA. With Ms. Anusha Rehman
For Mr. Sabir Ali Baloch, Mr. Shah Khawar, ASC
Senator
Kh. Muhammad Asif, MNA
in person
For Mr. Jamil Ahmed Malik, Mr. Imtiaz Rashid Siddiqui, ASC
MNA. Mr. Mehr Khan Malik, AOR
(in CMA-2382/12): Mr. Muhammad Akhlaq, MPA (Pb)
in person
Mr. Farhat Mehmood Khan, MNA
(absent)
Dr. Muhammad Ashraf Chohan, MPA
(absent)
Ms. Nadia Ghabool, MPA (Sindh) (absent)
Ch. Khadim Nadeem, MPA (Pb) (absent)
For Sardar Shahjehan Yousaf, Hafiz S. A. Rehman, Sr. ASC
MNA Mr. Mehmood A. Sheikh, AOR with
Sardar Shahjehan Yousaf, MNA
Constitution Petition No. 05 of 2012 -: 3 :-
Dates of hearing: 08th, 10th , 16th , 25th & 30th May,
04th 13th , 21st & 25th June, 02nd
03rd, 04th & 23rd July, 09th, 12th ,
17th , and 18th September 2012.
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 Majlise-
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 CMA 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
parawise comments. In response to the notice, learned 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
Constitution Petition No. 05 of 2012 -: 4 :-
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 that
if they desire, they can also appear at their own by filing their
replies alongwith 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 parawise 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 I fulfill the qualifications specified
in Article 62 of the Constitution and I 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”.
Constitution Petition No. 05 of 2012 -: 5 :-
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 versus 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 CMA
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
1. 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 Hafez
Sheikh
PPP Pakistani USA
11. Anusha Rehman PML(N) Pakistani Canada
Constitution Petition No. 05 of 2012 -: 6 :-
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 CMA No.2492 of 2012
for impleading of Mr. Jamil Malik, MNA, Mr. Jamshed
Rahmatullah, ASC has filed CMA No.2953 of 2012 for
impleading of Mr. Jamil Ashraf, MPA and Mr. Tariq Asad, ASC
has filed CMA 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 CMAs noted above:-
1. “Ms. Farah Naz Isfahani, MNA;
2. Mr. A. Rehman Malik, Senator;
3. Ch. Zahid Iqbal, MNA;
4. Ch. Iftikhar Nazir, MNA;
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 Hafeez 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.
Constitution Petition No. 05 of 2012 -: 7 :-
11. Mr. Wasim Sajjad, learned Sr. ASC in reply on behalf
of Ms. Farah Naz Isfahani, MNA filed CMA No. 2231 of 2012 and
admitted that she is a holder of citizenship of USA, Mr. Khawar
Mehmood Khatana, ASC why filed CMA 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 CMA No. 1927 of
2012 and CMA 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 CMA
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. CMA 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 CMA No.2802/2012, CMA 2882 of
2012 and CMA 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 Netherland he had acquired
citizenship of the said country.
Constitution Petition No. 05 of 2012 -: 8 :-
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 versus 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 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 Netherland he had acquired
citizenship of the said country. Further contends that since his
Constitution Petition No. 05 of 2012 -: 9 :-
client was adopted by his real uncle he had acquired citizenship
of Netherland 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 Netherland. 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.
Constitution Petition No. 05 of 2012 -: 10 :-
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. It 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 UK 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 UK in the year 2012 as Member of Parliament
and as such he was rightly elected as a Senator.
Constitution Petition No. 05 of 2012 -: 11 :-
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 of the Constitution pertains to preelection
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 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
Constitution Petition No. 05 of 2012 -: 12 :-
Armey 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 amen, 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—
Constitution Petition No. 05 of 2012 -: 13 :-
(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 a 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
Constitution Petition No. 05 of 2012 -: 14 :-
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.
30. It was held in the case of Tata Consultancy
Services versus 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 versus.
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,
Constitution Petition No. 05 of 2012 -: 15 :-
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.
Constitution Petition No. 05 of 2012 -: 16 :-
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 to
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
check Executive, to give guideline for policies of the Government
including defence, foreign, finance, etc. etc. In the case of
Iftikhar Ahmad Khan Bar versus 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 manner so as to apply to situations and
conditions which might arise in future. The words and
Constitution Petition No. 05 of 2012 -: 17 :-
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 versus Union of India, (AIR 2000 SC 314), and
Abdul Razak versus 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
Constitution Petition No. 05 of 2012 -: 18 :-
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) can not 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 (1) (c) relate to post election disqualification
only.
43. If we compare Article 63 (1) with Article 63(A) 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
63(A) 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
Constitution Petition No. 05 of 2012 -: 19 :-
Majlis-e-shoora, whereas, Article 63(A) 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 that any
person whether he is Member of the Majlis-e-Shoora shall be
disqualified if any one of the disqualifications mentioned in the
said Article applicable upon him. The Article further provides
that the person shall be disqualified “from being elected or
chosen” relates to pre post election disqualification whereas
“from being a Member of Majlis-e-Shoora” relates to post
election disqualification. The Article 63 of the Constitution has
dealt with both i.e. pre and post election disqualification.
Constitution Petition No. 05 of 2012 -: 20 :-
47. The general principle of Interpretation of Statues is
equally applicable while interpreting any provision of the
Constitution. However, while interpreting a provision of the
Constitution great caution has to be taken by the Court, as the
Constitution is an instrument i.e. the supreme law which
creates the Legislature itself, makes ordinary statutes with
respect to which canons of statutory interpretation have been
formulated by the Courts. The task of expounding a
Constitution is crucially different from that of construing a
statute. The Statute can easily be enacted and repealed by
simple majority of Members of Parliament whereas, any
provision of the Constitution can be amended only by 2/3rd
majority of both the Houses.
48. In the case of Muhammad Yasin versus Federation
of Pakistan, (PLD 2012 SC 132), it was held that “meaning of
the Constitution is to be aggregated from the Constitution as
interpreted in the rule based on reason.”
49. It is not out of place to reproduce the oath required
to be taken at the time of acquiring citizenship of Britain and
United States respectively.
“I will give my loyalty to the United Kingdom and
respect its rights and freedoms. I will uphold its
democratic values. I will observe its laws faithfully
and fulfill my duties and obligations as a British
citizen.”
UNITED STATES
“I hereby declare, on oath, that I absolutely and
entirely renounce and abjure all allegiance and
fidelity to any foreign prince, potentate, state, or
Constitution Petition No. 05 of 2012 -: 21 :-
sovereignty, of whom or which I have heretofore
been a subject or citizen; that I will support and
defend the Constitution and laws of the United
States of America against all enemies, foreign and
domestic; that I will bear true faith and allegiance
to the same; that I will bear arms on behalf of the
United States when required by the law; that I will
perform noncombatant service in the Armed Forces
of the United States when required by the law; that
I will perform work of national importance under
civilian direction when required by the law; and
that I take this obligation freely, without any
mental reservation or purpose of evasion; so help
me God.”
50. We have also noted that Members of the National
Assembly have taken oath under Article 65 of the Constitution,
whereby they have undertaken that they will perform their
functions honestly always in the interest of the sovereignty,
integrity, solidarity, well-being and prosperity of Pakistan and
will preserve, protect and defend the Constitution, whereas on
the other hand, at the time of acquiring citizenship of United
States of America they have taken oath that they will bear true
faith and allegiance to the US Constitution and will bear arms
on behalf of the United States when required by the law, etc.
51. The issue, whether a person holding citizenship of a
foreign state is qualified to contest the election or not, had come
for consideration before the Lahore High Court, in the case of
Umar Ahmad Ghumman versus Government of Pakistan and
others, (PLD 2002 Lahore 521), wherein a learned Judge of this
Court, Hon’ble Mr. Justice Tassaduq Hussain Jillani, as a
Judge of the Lahore High Court, held that:-
Constitution Petition No. 05 of 2012 -: 22 :-
“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
qualifications 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(1) (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 aforereferred
provision and cannot contest elections unless,
of course, he removes this disqualification in terms of
rule 19 of the Pakistan Citizenship Rules, 1952.”
Now we will deal with the matter related to respondents.
52. Ms. Farah Naz Isfahani, MNA; Ch. Zahid Iqbal,
MNA; Ms. Nadia Gabol, MPA; Ms. Amna Buttar, MPA and Mr.
Jameel Ahmed Malik, MNA and Dr. Ahmed Ali Shah, MPA have
not denied that at the time when they submitted their
nomination papers, they were holding citizenship of a foreign
Constitution Petition No. 05 of 2012 -: 23 :-
state, made statement on oath that they are qualified under
Article 62 (1) of the Constitution as well as not disqualified
under Article 63 (1) of the Constitution, apparently knowing
well that a person holding citizenship of a foreign sate is
disqualified from being elected or chosen as a member of the
Majlis-e-Shoora (Parliament). They apparently made a false
statement.
53. As regards Mr. Zahid Iqbal, MNA, vide order dated
18-3-2012, learned ASC appearing for Mr. Zahid Iqbal, MNA
was directed to file evidence/documents/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 till date despite giving time, thus we have no option but to
believe that Mr. Zahid Iqbal, MNA, is holding citizenship of
United Kingdom, having Passport No. 300997046 of Britain.
54. In CMA No. 2382 of 2012 filed by Malik Waheed
Anjum, ASC The Learned Counsel categorically stated that Mr.
Farhat Mehmood Khan, MNA is holder of USA Passport No.
470939019, Dr. Muhammad Ashraf Chouhan, MPA is holder of
British Passport No.202052945, Nadia Gabol, MPA is holder of
British Passport No.706860392. These Members of the
Parliament have not disputed the question of holding dual
citizenship of a foreign State despite service, therefore, we have
no option but to hold that at the time of submitting of their
nomination papers they were disqualified and ineligible to file
the same and apparently have made false statements while
submitting their nomination papers.
Constitution Petition No. 05 of 2012 -: 24 :-
55. Mr. Jamil Ahmad Malik, MNA, has not denied that
he is a holder of citizenship of Netherland, however, stated that
he has acquired citizenship after attaining the age of majority
as he was adopted by his uncle when he was minor who was
citizen of Netherland.
56. Article 102 of the Indian Constitution, disqualified a
person if he “voluntarily” acquired citizenship of a foreign State
whereas Article 63 (1) (c) of the Constitution has specified
disqualification if any person who whether voluntarily or not,
acquired citizenship of a foreign State from being member of
Parliament. The contention of learned ASC that his client has
not acquired citizenship voluntarily and cannot be disqualified,
thus has no force.
57. As regards Ch. Waseem Qadir, MPA though learned
counsel has appeared on his behalf and on one date of hearing
he has also appeared in person and handed over Pakistani
Passport to Court Associate but till date no CMA has been filed
denying the allegation that he is not holder of citizenship of any
foreign State.
58. Ch. Nadeem Khadim, MPA has also not filed any
CMA to dispute that he is not a holder of citizenship of any
foreign State.
59. As regards Mr. Sabir Ali Baloch, Senator, Malik
Waheed Anjum, learned ASC, has filed CMA No.2382 of 2012
wherein he has alleged that he (Mr. Sabir Ali Baloch, Senator) is
a holder of dual citizenship but he has not mentioned the name
of the State of which he is holding citizenship and no material
Constitution Petition No. 05 of 2012 -: 25 :-
in support of his contention has been produced, thus request to
the extent of Mr. Sabir Ali Baloch, Senator to declare him
disqualified being holder of dual citizenship, is declined.
60. Ms. Anusha Rehman, MNA in reply has stated that
she is a citizen of the Islamic Republic of Pakistan by birth and
this is the only citizenship/nationality which she has held, and
still holds and that she belongs to one of the oldest families
hailing from Lahore, Mr. Waheed Anjum, petitioner also
withdrew his allegation against Ms. Anusha Rehman thus to
her extent the proceeding is also dropped.
61. The proceedings against Sardar Shahjehan Yousaf,
MNA and Ch. Iftikhar Nazir, MNA are also dropped, as learned
counsel does not press his allegations of holding dual
citizenship, and tenders apology.
62. Khawaja Muhammad Asif, MNA has appeared and
categorically questioned the allegation leveled against him.
Learned ASC dropped the allegation leveled against him. He has
also dropped allegation against Abdul Hafez Sheikh, Senator
that he is holder of dual nationality.
63. As far as the matter relating to Mr. Tariq Mehmood
Alloana, MPA is concerned, serious allegations were leveled
against him. In support of his contentions Malik Waheed
Anjum learned ASC has placed on record letter No.
FIA/IBMS/Supreme Court/Qurey/1521 wherein it was
affirmed that on the basis of particulars mentioned, the closest
travel history of the person has been found in the system and
Constitution Petition No. 05 of 2012 -: 26 :-
R-11 Form. It is alleged that he was a US National and also that
he travelled on the US passport.
64. On our direction, Mr. Muhammad Azam Khan,
Director (Law), FIA submitted a report, contents whereof are
reproduced herein-below:-
“1. That Malik Waheed Anjum learned ASC submitted
an application to DG, FIA for the provision of travel
history of Tariq Mehmood son of Lal Khan passport
No.211267712. in this application the following
two Pakistani passports Nos. allegedly belonging
to Tariq Mehmood were also mentioned for the
said purpose.
a. CW151051
b. CW0151052
2. That on search of PISCES/IBMS database it
transpired that one Tariq Mehmood holding
passport No.211267712 landed at Islamabad
airport by PK-718 on 14.2.2006 and departed
back on 28.2.2006 by PK-717 from Karachi
airport.
3. The said Tariq Mehmood holder of American
Passport No. 211267712 again entered in
Pakistan on 19.07.2008 by PK-718 landed at
Islamabad airport and from the same airport, he
left the country on 01.08.2008 by PK-715. R11-
travel history IBMS data form is attached. (Annex-
A).
4. Regarding two Pakistani passports
No.CWD0151051 and CW0151052, there is
nothing available in Database System about entry
or exit of any person on the basis of these
passports.
5. On further analysis of the system it transpired that
on both the occasions when Mr. Tariq Mehmood
Alloana arrived at Islamabad airport, he presented
his National Identify Card Overseas Pakistanis
(NICOP).
Constitution Petition No. 05 of 2012 -: 27 :-
6. On NADRA database verification of NICOP No.
37201-1113961-7 (Annex. B) the following
information has been produced:-
i. Name Tariq Mehmood
ii. Father’s name Lal Khan
iii. Date of Birth 15.05.1960
iv. Country of Stay USA
v. Present Address: 1099 Coney, Island
Ave. Brooklyn, New Your, 11230
United States.
vi. Permanent Address: House No. Bviii-218 Street
No.4 Mohallah Sarpak Chakwal, District Chakwal,
Pakistan.
Report is submitted, please.
On behalf of Director General
Sd/-
Muhammad Azam Khan
Director/Law
03.07.2012.”
65. We have heard Mr. Khawar Mahmood Khattana,
ASC and Mr. Malik Waheed Anjum, ASC in detail and vide
order dated 04.07.2012, the Additional Registrar of this Court
was directed to lodge a criminal complaint against the DG, FIA,
the Deputy Director who signed and furnished the incorrect
information/documents and all other persons involved, on the
strength of this order and annexure hereof. The I.G. Police,
Islamabad was also directed to supervise the investigation of
the case himself and to submit a report to the Registrar of this
Court on weekly basis for our perusal in Chamber.
66. Malik Waheed Anjum, ASC who filed CMA No.
No.2382 of 2012 alleging that Khawaja Muhammad Asif, MNA,
Mr. Abdul Hafeez Sheikh, Senator, Ms. Anusha Rehman, MNA.
Constitution Petition No. 05 of 2012 -: 28 :-
Ch. Iftikhar Nazir, MNA, Mr. Sabir Ali Baloch, MNA and Mr.M.
Tariq Asad, ASC have filed CMA No. 2487 of 2012 praying that
Sardar Shahjehan Yousaf, MNA is holding the citizenship of
UK, tendered their apology to these Parliamentarians and
regretted for the inconvenience caused to them. We in view of
the acceptance of the apology by the learned
counsel/respondents, are not imposing cost for filing
application against them without any material alleging that
they are holding dual citizenship, however, it is expected that in
future they (learned counsel) will be more careful
67. Keeping in view the principle of Interpretation of
Statute/Constitution, as briefly discussed here-in-above,
Article 63 (1) (c) of the Constitution read with Section 14 of the
Pakistan Citizenship (Amendment) Act 1972 (Act XVII of 1972),
we have no doubt in our mind that a person holding dual
citizenship is disqualified from being elected or chosen as
member of the Majlis-e-Shoora (Parliament).
68. Now we will deal with the case of Mr. A. Rehman
Malik, Senator. Admittedly he was holder of Nationality of U.K.
It is not disputed by him that he (Mr. A. Rehman Malik,
Senator) acquired citizenship of U.K, however, he alleged that
he has renounced his citizenship of UK on 25.03.2008 and a
letter dated 19.04.2012 was placed on record in support of his
contention that he had renounced his citizenship of U.K. on
25.03.2008 and we would like to reproduce the contents of the
said letter which reads:-
Constitution Petition No. 05 of 2012 -: 29 :-
“MINISTER FOR
INTERIOR
Government of
Pakistan
Islamabad
SENATOR A. REHMAN MALIK
No.I/PS/M/2012
Dated: 19th April,
2012
In Re: CONSTITUTION PETITION NO.5 OF 2012
Syed Mehmood Akhtar Naqvi
Petitioner
Vs.
The Federal Government through Secretary Law and
others
Respondents
Please refer to your letter No.1(3)/2012-AGP dated 31st March
2012, concerning the above cited Constitutional Petition.
In this regard, it may be informed that by virtue of my
continuous exile in UK for nine years due to political
victimization and life threats in Pakistan, which is a matter of
public record, I was granted British nationality but I never
renounced my Pakistani citizenship as dual nationality is
allowed under the Pakistani law. However, I renounced my
British nationality on 25.03.2008 before I held public office. I
thus do not hold any other citizenship including of British
nationality except that of Pakistani citizenship.
Yours sincerely
-sd-
(Senator A. Rehman Malik)
69. We have repeatedly asked and granted sufficient
time and opportunity to learned counsel for Mr. A. Rehman
Malik to produce certificate issued by the U.K. Border Agency
in terms of section 12(1) of the British Nationality Act, 1981
confirming that he had renounced his citizenship of UK on
25.03.2008 as alleged and he is no more citizen of U.K.
Constitution Petition No. 05 of 2012 -: 30 :-
70. Learned counsel appearing on his behalf placed on
record letter dated 29.05.2012 issued by the UK Border
Agency. Contents of the same are reproduced herein-below:-
“Home Office
UK Border
Agency
Mr. A. R. Malik Our Ref M751044
25 Norfolk Crescent your Ref
LONDON Date 29 May 2012
W22YS
Dear Mr. Malik
Renunciation of British Citizenship
I am writing to inform you are now registered as having
renounced British Citizenship.
Enclosed is the Declaration of renunciation bearing a stamp of
registration. This confirms the date on which you ceased to be
a British Citizen under Section 12(1) of the British Nationality
Act, 1981.
Yours sincerely,
-sd-
Mrs CS Hughes
Managed Migration, Nationality Group
Department 73”
71. From the certificate issued by the UK Border
Agency, it appears that they have informed Mr. A. Rehman
Malik on 29.05.2012 that “you are now registered as having
renounced British Citizenship”. They have enclosed the
Declaration of renunciation bearing a stamp of registration, the
date on which he ceased to be a British Citizen under Section
12(1) of the British Nationality Act, 1981, however, said
declaration of renunciation had not been placed on record
despite we repeatedly asked that the same may be placed on
record.
Constitution Petition No. 05 of 2012 -: 31 :-
72. From bare reading of the said letter dated
29.05.2012 by U.K. Border Agency, it appears that Mr. A.
Rehman Malik has been registered as having renounced British
Citizenship on 29.05.2012. This aspect of the matter has
already been discussed in our short order, thus need not be
discussed in detail again but suffice it to say that apparently
for this reason realizing legal position, he has resigned from
membership of the Parliament on 11.07.2012 and against the
vacant seat he participated in the fresh elections and was
declared successful candidate vide notification dated
24.07.2012.
73. In the case of Muhammad Azhar Siddiqui versus
Federation of Pakistan, (PLD 2012 SC 774, in an additional
note it was held by Hon’ble Mr. Justice Jawwad S. Khawaja
that:-
“The people have thus, in the clearest possible
terms, stated that they will not allow
themselves to be represented by a person who
has or earns a disqualification under Article 63
ibid.
74. This Court in the judgment reported as Muddasar
Qayyum Nahra versus Ch. Bilal Ijaz and others, (2011 SCMR
80) quoted with approval, the paragraphs No. 21 & 22 of an
earlier judgment pronounced by this Court, and reported as
Ch. Bilal Ijaz versus Mudassar Qayyum Nahra and 4 others,
(2010 CLC 1692) which reads as under: -
“21. The concept of inserting Article 62 clause (f)
in the Constitution is very purposeful;
Constitution of Islamic Republic of Pakistan,
Constitution Petition No. 05 of 2012 -: 32 :-
1972 cannot be said to have incorporated the
said clause without any meaningful objective.
The holders of Public offices like members of
National and Provincial Assemblies are expected
to be persons of unimpeachable character. The
terms used in clause (f) of Article 62 of the
Constitution of Islamic Republic of Pakistan,
1973 need to be understood and implemented in
order to stop dishonest and cheatful persons
from entering into the corridors of the National
and Provincial Assemblies. The words written in
clause (f) are thus reproduced below which are
denied and interpreted in well known English
Dictionaries as are available on web-side
(site)/internet with universally accepted
meanings:--
Sagacious
(i) Skillful in statecraft or management
(ii) Market by artful prudence expedience and
shrewdness.
(iii) Having prompt wisdom.
(iv) A wise leader.
(v) Insightful; foresighted
Righteous
(i) Morally upright, without guilt or sin.
(ii) Characterized by accepted standard of
morality or justice
(iii) Good: morally admirable.
(iv) Clean handed; guiltless.
(v) Just: Used, especially of what is legally or
ethically right of proper or befitting
(vi) Moral: concerned with right and wrong or
conforming to standards of behavior:
morally excellent worthy.
(vii) Virtuous; morally excellent worthy.
(viii) Worthy; having worth or merit or value;
being Hon’ble or admirable.
(ix) Honest; blameless.
Constitution Petition No. 05 of 2012 -: 33 :-
Non profligate
(i) Recklessly wasteful.
(ii) Wildly extravagant.
(iii) Shamelessly immoral or debauched.
(iv) Spendthrift.
(v) Prodigal in their expenditures.
(vi) Squandering
Honest:
(i) Displaying integrity; upright.
(ii) Not deceptive or fraudulent.
(iii) Characterized by truth; not false.
(iv) Sincere.
(v) Not given to cheating.
Ameen (An Arabic word)
Meaning:
Trustworthy: faithful.
22. The concepts projected in using all the
above terminology is not difficult to understand.
It demonstrates a keen desire of the Constitution
that persons desiring to engage themselves in
the process of law making for the country must
themselves be possessed with High qualities of
personal character and moral values. A legislator
who indulges into unfair means in earning or
procuring his educational documents cannot be
termed to be possessing the required standards
of high personal characteristics mentioned in
clause (f) of Article 62 of the Constitution of
Islamic Republic of Pakistan, 1973. Members of
the National or Provincial Assemblies on their
successful election have been further obliged to
take oath as incorporated in the third schedule
of the Constitution, with necessary condition of
undertaking the performance of the duties and
functions honestly in accordance with
constitution. Elected members are further likely
Constitution Petition No. 05 of 2012 -: 34 :-
to be entrusted with the other high and onerous
offices of the Prime Minister, Federal Minister,
Speaker of the National and Provincial
Assemblies, Deputy Speakers of the National
and Provincial Assemblies and Chief Ministers of
the Provinces. The swearing of solemn oath from
such holders of public offices are also prescribed
in the Constitution requiring similar
performances of duties and functions with
honestly and also to be faithful to be
Constitution and the law. A person who indulges
into unfair means in procuring his educational
qualifications and is also found guilty by the
Disciplinary Committee, which is the only
authority competent to inquire into the matters
of such allegations against candidates appearing
in the examination of the said University, does
not deserve to claim to be an honest, righteous
or Ameen person so that he be assigned the high
responsibilities of performing national functions
of running the affairs of the country. The spirit
with which the words sagacious, righteous, non
profligate, honest and Ameen have been used by
the Constitution of Islamic Republic of Pakistan,
1973 for the eligibility of the candidates
contesting the elections of Members of National
or Provincial Assembly cannot be allowed to be
frustrated if persons who secure their
educational documents through unfair means
and are found guilty of such a condemnable act
by file (the) competent authority are allowed to
be given any entry into the doors of National or
Provincial Assemblies or (of) our country. The
respondent No.1 not only is found guilty of a
dishonest or cheatful involvement into the use of
unfair means in procuring his
B.A./degree/results from the University of
Punjab but also made deliberately false
Constitution Petition No. 05 of 2012 -: 35 :-
statement before this Tribunal as well when
P.W.1 was suggested that he was admittedly not
holder of the B.A. degree from the University of
the Punjab whereas in his written statement
Exh.P12, the respondent where he was
respondent No.4 in the said writ petition
categorically took up the plea and claimed to be
holder of a valid B.A. degree from the University
of the Punjab. He is thus not worthy of credence
and cannot be allowed to be entrusted with
State responsibilities of Law Making; to be incharge
of the National Exchequer (Exchequer) or
be eligible to represent the people of Pakistan.’
75. In the case of Iftikhar Ahmad Khan Bar versus
Chief Election Commissioner Islamabad and others, (PLD
2010 SC 817) it was held that:-
“An here is a man who being constitutionally and
legally debarred from being its member, managed
to sneak into it by making a false statement on
oath and by using bogus, fake and forged
documents polluting the piety of this pious body.
His said conduct demonstrates not only his
callous contempt for the basic norms of honesty,
integrity and even for his own oath but also
undermines the sanctity, the dignity and the
majesty of the said august House. He is guilty,
inter alia, of impersonation…posting to be what
he was not i.e. a graduate. He is also guilty of
having been a party to the making of false
documents and then dishonestly using them for
his benefit knowing them to be false. He is further
guilty of cheating---cheating not only his own
constituents but the nation at large.”
Constitution Petition No. 05 of 2012 -: 36 :-
76 From facts noted herein-above, what appears is that
respondent was holding of citizenship of a foreign State, made
statement on oath that he is qualified under Article 62(1) (c) of
the Constitution and not disqualified under Article 63 (1) of the
Constitution apparently made false statement.
77. For ease of reference, we would like to reproduce
para Nos: 17, 18 and 19 of our short order which read as
under:-
17. It is to be noted that a candidate,
while filing nomination papers signs a
declaration on oath to the following
effect: -
“DECLRATION AND OATH BY THE
PERSON NOMINATED
I, the above mentioned candidate, hereby
declare on oath that, —
(i) I have consented to the above
nomination and that I fulfill the qualifications
specified in Article 62 of the Constitution and
I am not subject to any of the
disqualifications 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.
18. The above declaration is applicable to the
candidates of membership of Parliament and
Provincial Assemblies, therefore, whoever
signs such a declaration is meant to be fully
aware of the constitutional provisions and
after signing the said declaration if the same
Constitution Petition No. 05 of 2012 -: 37 :-
turns out to be false, he makes himself liable
to be disqualified from being elected or
chosen as Member of the Majlis-e-Shoora
(Parliament) or a Provincial Assembly for
making misstatement or concealment of fact,
and also exposes himself to criminal
proceedings contemplated under sections
193, 196, 197, 198 and 199 PPC.
19. In view of the constitutional provisions under
Article 63(1)(c) & (p) of the Constitution read with
section 99(1)(f) of the Representation of the
People Act, 1976 it is to be seen as to
whether their cases are to be dealt with by
the Speaker/Chairman under Article 63(2) or
by the Election Commission under Article
63(3) or are to be de-notified by the Election
Commission after having been declared to be
disqualified from being a member of Majlis-e-
Shoora or Provincial Assemblies. This Court
has earlier dealt with this matter in the case
of Syed Yousaf Raza Gillani in Constitution
Petition No. 40 of 2012, etc. He was
convicted by a 7-Member Bench vide
judgment dated 26.04.2012 for contempt of
Court under Article 204(2) of the Constitution
read with section 3 of the Contempt of Court
Ordinance, 2003 and sentenced under
section 5 of the said Ordinance and the
reference filed by one Maulvi Iqbal Haider
Constitution Petition No. 05 of 2012 -: 38 :-
before the Speaker of Assembly to declare
him disqualified under Article 63(2) was
answered in the negative. Thereafter, the
ruling of the Speaker was challenged before
this Court through Constitution Petitions
which were allowed and while dealing with
the similar issue, the Court vide judgment
dated 19.06.2012 held as under: -
“As a Bench of 7 Hon’ble Judges vide
judgment dated 26.04.2012 followed by the
detailed reasons released on 08.05.2012
has found Syed Yousaf Raza Gillani guilty of
contempt of Court under Article 204(2) of the
Constitution of the Islamic Republic of
Pakistan, 1973 read with section 3 of the
Contempt of Court Ordinance, 2003 and
sentenced him to undergo imprisonment till
rising of the Court under section 5 of the said
Ordinance, and since no appeal was filed
against this judgment, the conviction has
attained finality. Therefore, Syed Yousaf
Raza Gillani has become disqualified from
being a Member of the Majlis-e-Shoora
(Parliament) in terms of Article 63(1)(g) of the
Constitution on and from the date and time
of pronouncement of the judgment of this
Court dated 26.04.2012 with all
consequences, i.e. he has also ceased to be
the Prime Minister of Pakistan with effect
from the said date and the office of the Prime
Minister shall be deemed to be vacant
accordingly;
The Election Commission of Pakistan is
required to issue notification of
disqualification of Syed Yousaf Raza Gillani
Constitution Petition No. 05 of 2012 -: 39 :-
from being a member of the Majlis-e-Shoora
w.e.f. 26.4.2012.”
78. As regards the contention of learned Attorney
General for Pakistan that no disqualification has been provided
for other important Constitutional posts like the President,
Governors, Chief of Army Staff, Judges of the superior Courts
and Auditor General. Since this issue is not before us, we are
not expressing our opinion on it except to say that in terms of
Article 41 (2) of the Constitution only a person who qualified to
be elected as a Member of the National Assembly can be elected
as a President in accordance with provision of 2nd Schedule by the
members of the electoral college consisting of members of both
the houses and the members of the Provincial Assemblies and
that it is for the Legislature to decide, whether to amend the
Constitution/Law if they in their wisdom decided that on the
other constitutional posts, persons holding citizenship of a
foreign state are not qualified to hold such posts.
Is petition maintainable under Article 184(3) of the
Constitution
79. Although the question of maintainability of petition
under Article 184(3) of the Constitution has not seriously been
argued by the learned counsel for the respondents, the issue in
the petition about the disqualification of a person to be a
Member of Parliament, the State has to exercise its powers and
authority through the chosen representatives of the people and
Parliament one of the noblest, honourable and important
Constitution Petition No. 05 of 2012 -: 40 :-
institutions of the Country to make the laws for the nation and
safeguard their fundamental rights, is a question of public
importance.
80. The expression “public importance” has been
interpreted in a number of cases including Manzoor Elahi
versus Federation of Pakistan, (PLD 1975 SC 66), General
Secretary, West Pakistan Salt Miners Labour Union (CBA),
Khewra, Jhelum versus Director Industries and Mineral
Development, Punjab, (1994 SCMR 2061) and Mrs. Shahida
Zahir Abbasi versus President of Pakistan, (PLD 1996 SC
632). It is quite clear that the question as to whether a
particular case involves the element of ‘public importance’ is to
be determined by this Court with reference to the facts and
circumstances of each case.
81. For what has been discussed above, we declare that:-
(a) Ch. Zahid Iqbal, MNA, Ms. Farah
Naz Isfahani, MNA, Mr. Farhat
Mehmood Khan, MNA, Mr. Jamil
Ahmad Malik, MNA, Mr.
Muhammad Akhlaq,
MPA(Punjab), Dr. Muhammad
Ashraf Chohan, MPA (Punjab),
Ms. Nadia Gabol, MPA (Sindh),
Ch. Waseem Qadir, MPA
(Punjab), Ch. Nadeem Khadim,
MPA(Punjab), Ms. Amna Buttar,
MPA (Punjab), Dr. Ahmad Ali
Shah, MPA (Sindh) have been
found disqualified from being
Constitution Petition No. 05 of 2012 -: 41 :-
members of Majlis-e-Shoora
(Parliament) and Provincial
Assemblies because of their
disqualification under Article
63(1)(c) of the Constitution.
(b) The Parliamentarians/Members
of Provincial Assemblies, who
have been declared to be
disqualified, in view of the
established fact that they have
acquired the citizenship of
Foreign States, therefore, no
question has arisen, which is to
be determined by the
Chairman/Speaker. Thus, no
reference under Article 63(2) is
being made.
(c) The Election Commission is
directed to de-notify the respective
memberships of
Parliament/Assemblies of aforesaid
persons.
(d) All the Members of the
Parliament/Provincial Assemblies
noted above had made false
declarations before the Election
Commission while filing their
nomination papers and as such appear
to be guilty of corrupt practice in terms
of Section 78 of Representation of
Peoples Act, 1976, therefore, the
Election Commission is directed to
Constitution Petition No. 05 of 2012 -: 42 :-
institute legal proceedings against
them under section 82 of the Act read
with sections 193, 196, 197, 198 and
199 PPC in accordance with law.
(e) The members of
Parliament/Provincial Assemblies
noted hereinabove, being disqualified
persons are directed to refund all
monetary benefits drawn by them for
the period during which they occupied
the public office and had drawn their
emoluments etc. from the public
exchequer including monthly
remunerations, TA/DA, facilities of
accommodation along with other perks
which shall be calculated in terms of
money by the Secretaries of the Senate,
National Assembly and Provincial
Assemblies accordingly.
(f) The amount, so recovered from
all of them by respective
Secretaries shall be deposited in
the public exchequer within a
period of two weeks and
compliance report shall be sent to
the Registrar.
(g) As regards the case of Senator A.
Rehman Malik, it may be noted
that at the time of filing of
nomination papers for election to
the Senate held in the year 2008,
he had made a false declaration
Constitution Petition No. 05 of 2012 -: 43 :-
to the effect that he was not
subject to any of the
disqualifications 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
Parliament/Provincial Assembly,
therefore, reference will be
required to be made to the
Chairman Senate under Article
63(2) in view of the provision of
section 99(1)(f) of the Act of 1976,
which lays down that a person
shall not be qualified from being
elected or chosen as a member of
an Assembly unless he is
sagacious, righteous and nonprofligate
and honest and ameen.
Mr. A. Rahman Malik, in view of
the false declaration filed by him
at the time of contesting the
election to the Senate held in the
year 2008, wherein he was
elected, cannot be considered
sagacious, righteous, honest and
ameen within the contemplation
of section 99(1)(f) of the Act of
1976. Therefore, for such
purposes Article 63(p) is to be
adhered to because the
disqualification incurred by him
is envisaged under the law,
referred to hereinabove in view of
his own statement that he had
Constitution Petition No. 05 of 2012 -: 44 :-
renounced his citizenship of UK
whereas the fact remains that
such renunciation along with
declaration can only be seen as
having been made on
29.05.2012.
(h) Senator A. Rehman Malik is
directed to refund all monetary
benefits drawn by him upto
11.7.2012 for the period during
which he occupied the public
office in the same manner as
directed in the case of other
Parliamentarians noted above.
(i) As Mr. A. Rehman Malik had
made false declarations while
filing his nomination papers
before the Election Commission
in the election held in the year
2008, therefore, the Election
Commission is directed to
institute legal proceedings
against him as it has been
directed in the case of above said
parliamentarians.
82. The Election Commission of Pakistan is also
directed to examine the cases of the Parliamentarians and the
members of Provincial Assemblies, individually, by obtaining
Constitution Petition No. 05 of 2012 -: 45 :-
fresh declaration on oath from all of them that they are not
disqualified under Article 63(1)(c) of the Constitution.
83 In view of the above, the titled Constitution Petition
is disposed of in the above terms.
84. These are the reasons of our short order.
Chief Justice
Judge
Judge
Islamabad
Approved for reporting
Constitution Petition No. 05 of 2012 -: 46 :-
Jawwad S. Khawaja, J. I have had the benefit of going through the reasoning
of my learned brother Khilji Arif Hussain, J. in support of the short order
dated 20.9.2012. I am in agreement with his conclusions but am adding this
concurring opinion giving my additional reasons in support of the said
order.
2. At the outset it is necessary to set out with clarity the precise issue
before us: Does our Constitution permit a citizen of Pakistan, who also
acquires the citizenship of another State, to become a member of Pakistan’s
Parliament or of a Provincial Assembly? The Constitution’s answer to this
question is a simple “No”. The basis for this is Article 63(1)(c) which states in
the clearest terms that: “[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 … acquires the citizenship of a foreign State…” Article 63(1)(c) also receives
strong textual support from other parts of the Constitution as elaborated
later in this opinion. On account of Article 113, the disqualification stated in
Article 63(1)(c) also extends to members of the provincial assemblies. This
constitutional imperative should have been clear to all from the very
beginning; but clearly, like some other constitutional dictates, it had not been
adhered to. As far back as 2002, in the case titled Umar Ahmad Ghumman
versus Government of Pakistan and others (PLD 2002 Lahore 521), it was held
that a Pakistani who has acquired the Citizenship of a foreign State is
disqualified from membership in Parliament or a Provincial Assembly.
Today, in deciding the petition presently before us, we have done nothing
more than to give effect to this rule which already exists in the Constitution.
3. We reiterate that the dual citizenship held by expatriate and overseas
Pakistanis is not the issue requiring adjudication in this case. The learned
Attorney General and counsel representing some of the respondents appear
Constitution Petition No. 05 of 2012 -: 47 :-
to have confused dual citizenship with the Constitutional disqualification
contained in Article 63(1)(c) ibid. We may clarify that section 14(1) of the
Citizenship Act, 1951, confers upon Pakistani citizens the right to hold the
citizenship of certain other countries without having to forgo their Pakistani
citizenship. The right, therefore, of Pakistani citizens to hold dual citizenship,
as per law, remains very much a statutory right vested in them. The extent
and scope of that legal right has no relevance to the question of
disqualification relating to eligibility for being a member of Parliament or of
a Provincial Assembly.
4. In fact, on numerous occasions in the recent past, this Court has
expressed the national sentiment of gratitude for our expatriates, estimated
to be in the range of 7 to 8 million in number. Most of them, particularly
those working in Middle Eastern countries donot hold dual citizenship.
These sons and daughters of Pakistan toil in foreign lands, away from their
hearths, homes and loved ones and, in the process, provide an economic
lifeline to Pakistan in these critical times. In the last financial year, these
overseas Pakistanis remitted more than US$ 13 billion in hard cash, to bolster
the economy of the country. This figure is slated to increase in the current
financial year. Yet, at times, these hardworking and patriotic Pakistani
expatriates receive short shrift and humiliating treatment from government
agencies such as the Immigration and other services, Civil Aviation
Authority (CAA) and the Overseas Pakistanis Foundation (OPF), when they
return to Pakistan after months or even years away from home. This Court
has taken suo moto notice (HRC No. 24770-G/2011) of the maltreatment
which overseas Pakistanis receive at the hands of such authorities.
5. The particulars of the petitioners, interveners and the respondents and
the arguments presented by them have been sufficiently addressed in the
Constitution Petition No. 05 of 2012 -: 48 :-
lead opinion. The reasons for considering the present petitions maintainable
are also evident. The text of the Constitution is clear enough. It plainly
disqualifies a person from seeking election to or from being a member of
Parliament if he acquires the citizenship of another State. What is, however,
worth emphasizing is also the spirit behind Article 63 (1)(c) ibid. This
becomes clear when we read the article together with certain other relevant
provisions of the Constitution. Courts in Pakistan have, repeatedly, held that
the Constitution is to be read as an organic whole, whose meaning is to be
gathered holistically through reason (Munir Bhatti v. Federation of Pakistan
PLD 2011 SC 407). This is why it is a matter of utmost importance that the
spirit behind Article 63(1)(c) is also fully comprehended, when interpreting
and applying its clear intent.
6. When trying to understand the spirit behind Article 63(1)(c), the first
point that needs to be considered is the fiduciary role envisaged for members
of Parliament in our Constitution. In a number of judgments, we have
emphasized the notion that all state authority is in the nature of a “sacred
trust” and its bearers should therefore be seen as fiduciaries. In Muhammad
Yasin v. Federation of Pakistan (PLD 2012 SC 132), we held that “holders of
public office … are, first and foremost fiduciaries and trustees for the People of
Pakistan. And, when performing the functions of their Office, they can have no
interest other than the interests of the honourable People of Pakistan …”.
Parliamentarians, while acting as trustees and the chosen representatives of
the people, take decisions which are often of grave consequence for the
protection of the economic, political and over-all national interests of the
people of Pakistan. In other words, theirs is a fiduciary duty of the highest
order. In our Parliamentary democracy, members of Parliament also
Constitution Petition No. 05 of 2012 -: 49 :-
constitute the Government as defined in Article 90 of the Constitution and
elect the Prime Minister who is the chief executive of the country.
7. It is well settled that the foremost obligation of a fiduciary is to show
complete loyalty to the principal and to scrupulously avoid situations which
may create a conflict of interest in the performance of such duty. Cognizant
of this principle, our Constitution requires constitutional functionaries
including members of the National Assembly, Senators and members of
Provincial Assemblies to solemnly swear that they will “bear true faith and
allegiance to Pakistan” and act “always in the interest of the sovereignty, integrity,
solidarity, well-being and prosperity of Pakistan.” (Third Schedule, Constitution)
8. It should be obvious that holding dual citizenship is likely to create
situations for the holder where he faces a conflict of interest in the discharge
of fiduciary duty to the people of Pakistan. The conflict of interest is
particularly evident when the acquisition of foreign citizenship entails taking
an oath of allegiance to the foreign state and renunciation of allegiance to
Pakistan. Thus, for instance, when Ms. Farah Naz Isfahani (and others such
as her) acquired citizenship of the United States, she swore an oath to bear
“true faith and allegiance to” the United States, to “bear arms” on its behalf and
to “renounce and abjure absolutely and entirely all allegiance and fidelity to any
foreign … state…” such as Pakistan. This oath is a statutory requirement
stipulated in the United States Code. Its present wording was introduced by
the Immigration and Nationality Act, 1952 and cannot be waived except in
very rare circumstances, such as being a minor or of unsound mind.
Similarly, when Mr. A. Rehman Malik (and others such as him) acquired
British citizenship, he swore “by Almighty God that on becoming a British citizen
[he] will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the
Second, her heirs and successors …” and that he will give his “loyalty to the
Constitution Petition No. 05 of 2012 -: 50 :-
United Kingdom.” Clearly, oaths of this nature, do conflict with the fiduciary
obligation of unswerving and undivided loyalty to Pakistan and its people. It
is hard to see how someone who has openly “renounce[d] and abjure[d]” all
allegiance to Pakistan or who has sworn allegiance to a foreign monarch, can
then be safely entrusted with the “sacred trust” of protecting the interests of
the people of Pakistan. In sum, therefore, acquiring the citizenship of a
foreign state does create a serious conflict of interest; such conflict of interest
renders a person unsuited for discharging a fiduciary duty as onerous as
being a public representative. This is precisely the spirit in which the framers
have enacted Article 63(1)(c) of the Constitution, which prevents citizens
who acquire the citizenship of another state from entering or remaining in
Parliament and in the Provincial Assemblies.
9. The conflict of interest situation anticipated in the Constitution is not
imaginary. It is a real proposition and can easily be illustrated through an
issue which is current and topical. In the case of Ms. Farah Naz Isfahani, for
instance, the implications of her oath of allegiance to the United States may
be contemplated. Debate within and outside Parliament has highlighted the
differences between the two States (of which Ms. Isfahani has citizenship) on
a number of issues such as drone strikes by the United States, on Pakistani
territory and citizens. There exist or may arise similar differences between
the two States. Situations like these do put dual citizens like Ms. Isfahani into
possible conflict of interest. On the one hand, she is committed to
“perform[ing] her functions… in the interest of the sovereignty, integrity, solidarity,
well-being and prosperity of Pakistan”, even if that entails consequences which
are adverse to the interests of the United States. At that same time, she is also
expected to “renounce … all allegiance and fidelity to” Pakistan and, if the need
arises, “bear arms on behalf of the United States” against Pakistan. The framers
Constitution Petition No. 05 of 2012 -: 51 :-
of our Constitution were clear enough to have found us a way out of such
conflict of interest situations by expressly specifying the disqualification
stated in Article 63(1)(c) and thus ensuring that there remain no doubts as to
the undivided loyalty of elected representatives, towards Pakistan and its
honourable people.
10. In this context we may also add that Interior Minister Mr. A. Rehman
Malik was reported to have made a statement that even after our short Order
dated 20.9.2012, there still remain in the houses of Parliament, persons who
are dual nationals. Notice was issued to Mr. A. Rehman Malik after
examination of the transcript of his statement. He appeared in Court and
stated that he will task “his boys” in the Ministry of Interior who can then
submit in Court a list of persons in Parliament/Provincial Assemblies
holding dual citizenship. The Election Commission of Pakistan is also in the
process of gathering information about such disqualified persons as has been
reported in the media to ensure adherence to the Constitution. It is of the
utmost importance that actions and decision-making in the highest elected
bodies are not tainted and possibly rendered subject to constitutional
challenge, on account of the presence of disqualified persons in such elected
bodies.
11. We are aware that the question of the eligibility of dual citizens for
holding office as public representatives has been dealt with somewhat
differently by the Constitutions of other countries. In India, the very act of
holding dual nationality is constitutionally barred. The Indian Constitution
explicitly states: “… no person shall be a citizen of India… if he has voluntarily
acquired the citizenship of any foreign State” (Article 9, Constitution of the
Republic of India, 1950). Since no Indian citizen can be a dual citizen, dual
citizens are also precluded from holding elected office. It may be noted that
Constitution Petition No. 05 of 2012 -: 52 :-
up until the Pakistan Citizenship (Amendment) Act, 1972, the law in
Pakistan also did not allow for holding dual citizenship. It is for this reason
the Constitutions of 1956 and 1962 did not contain any express
disqualification for dual citizens becoming parliamentarians because there
were no dual citizens permitted under law. Permission for holding dual
citizenship was legally granted in 1972 through the above-mentioned statute.
The Constitution of 1973, therefore, contained Article 63(1)(c) to ensure that
citizens of Pakistan who acquire dual citizenship, donot sit in Parliament.
The wisdom of the framers of the Constitution is founded on the
requirement of absolute and undiluted loyalty to Pakistan as a qualification
for having the privilege of being a chosen representative of the honourable
people of Pakistan. In Australia too, any person who is “under any
acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a
subject or a citizen … of a foreign power…” is disqualified from becoming a
Senator or a member of the House of Representatives (Section 44 (i),
Commonwealth of Australia Constitution Act). There may be States where
dual citizenship will not disqualify the holder from being elected as a
legislator. Pakistan, however, is not among such States.
12. The upshot of this brief over-view of comparative constitutional law is
that the framers of the Constitution in different countries strike a balance
between competing interests in the light of their own context. The balance
struck by the Constitution of Pakistan is that it does not disallow dual
citizenship, but it does prohibit dual citizens from holding high elected
office. Anyone familiar with the tragic episodes of Pakistan’s history would
recognize why the framers adopted a careful position in this matter, and why
this is an eminently reasonable position in our context.
Constitution Petition No. 05 of 2012 -: 53 :-
13. To sum up, it should be clear that we do not question the citizenship
rights of dual citizens under statute, nor does this Court seek to ignore their
invaluable services to the nation. In fact, as noted above, the Court has taken
a number of initiatives to ensure the well-being of overseas Pakistanis, some
of whom might also be dual citizens. It is only the privilege of sitting in
Parliament and the Provincial Assemblies and the honour of being decisionmakers
on behalf of the people of Pakistan which the Constitution, vide
Articles 63(1)(c) and 113 requires, be given to persons who are not the
citizens of another State. This is so because as discussed, in view of the
onerous fiduciary duties of public representatives, the Constitution
recognizes the special need to avoid all possible conflict of interest situations
in the elected bodies of the country.
(Jawwad S. Khawaja)
Judge
20.09.2012 1
2
3
113 (1)(c) 63
(PLD 2002 Lahore 521)
4
1951
14
5
8070
1 Const. P. 5/2012
13
OPF(CAA)(Immigration)
( s u o m o t u )
(H.R.C No 24770-G/2011)
6
184(3)
63(1)(c)
63(1)(c)PLD 2011 SC 407
7
" "
" PLD 2012 SC 132
"
2 Const. P. 5/2012
8
"
"
9
"
"
"
"
63(1)(c)
20/09/2012 10
(my boys)" "
3 Const. P. 5/2012
11
"
"
63(1)(c)
12
Commonwealth of Australia Constitution Act 44(i))
13
4 Const. P. 5/2012
(Original Jurisdiction)
PRESENT:
MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, HCJ
MR. JUSTICE JAWWAD S. KHAWAJA
MR. JUSTICE KHILJI ARIF HUSSAIN
CONSTITUTION PETITION NO.05/2012 AND CMA NOS.2382,
2487, 2492, 2876 & 3446/2012.
(Under Article 184(3) of the Constitution)
Syed Mehmood Akhtar Naqvi Petitioner
VERSUS
Federation of Pakistan thr.
Secretary Law and others Respondents
For the petitioner (s): Petitioner in person
(in Const.P.5/2012)
For the applicant (s): Malik Waheed Anjum, ASC,
In-person
(in CMA-2382/12)
Dr. Tariq Asad, ASC,
In-person
(in CMA-2487/12)
Ms. Samira Basharat,
In-person
(in CMA-2876/12)
Mr. M. Shoaib Lodhi
(absent CMA-2492/12)
On Court Notice: Mr. M. Irfan Qadir,
Attorney General for Pakistan
Assisted by
Barrister Shehryar Riaz Sheikh, Adv.
For the respondents: Mr. Dil Muhammad Khan Alizai, DAG
(1,2,4,6,8,& 10) Raja Abdul Ghafoor, AOR
Syed Sher Afghan, D.G. (Elections)
For respondent No.3: Mr. Qasim Mir Jat, Addl. A.G. Sindh
Constitution Petition No. 05 of 2012 -: 2 :-
For respondent No.5: Mr. Jawwad Hassan, Addl. A.G. PB.
For respondent No.7: Mr. Azam Khattak, Addl.AG Balochistan
For respondent No.9: Syed Arshad Hussain, Addl. A.G. KPK
For Ms. Farah Naz Isfahani: Mr. Waseem Sajjad, Sr. ASC
Ch. Akhtar Ali, AOR assisted by
Mr. Idrees Ashraf, Adv.
For Mr. Zahid Iqbal, MNA: Mian Abdul Rauf, ASC
& Dr. Ahmad Ali Shah, MPA:
For Mr. A. Rehman Malik: Mr. Anwar Mansoor Khan, Sr. ASC
Mr. Muhammad Azhar Ch., ASC
Raja Abdul Ghafoor, AOR
For Ms. Amna Buttar, MPA Mr. Khawar Mehmood
& Mr. Wasim Qadir, MPA Khattana, ASC
For Tariq Mehmood Aloana, Mr. Saeed Yousaf, ASC
MPA
For Ch. Iftikhar Nazir, MNA Mian Sultan Tanvir, ASC
For Ms. Anusha Rehman, Kh. Haris Ahmed, Sr. ASC
MNA. With Ms. Anusha Rehman
For Mr. Sabir Ali Baloch, Mr. Shah Khawar, ASC
Senator
Kh. Muhammad Asif, MNA
in person
For Mr. Jamil Ahmed Malik, Mr. Imtiaz Rashid Siddiqui, ASC
MNA. Mr. Mehr Khan Malik, AOR
(in CMA-2382/12): Mr. Muhammad Akhlaq, MPA (Pb)
in person
Mr. Farhat Mehmood Khan, MNA
(absent)
Dr. Muhammad Ashraf Chohan, MPA
(absent)
Ms. Nadia Ghabool, MPA (Sindh) (absent)
Ch. Khadim Nadeem, MPA (Pb) (absent)
For Sardar Shahjehan Yousaf, Hafiz S. A. Rehman, Sr. ASC
MNA Mr. Mehmood A. Sheikh, AOR with
Sardar Shahjehan Yousaf, MNA
Constitution Petition No. 05 of 2012 -: 3 :-
Dates of hearing: 08th, 10th , 16th , 25th & 30th May,
04th 13th , 21st & 25th June, 02nd
03rd, 04th & 23rd July, 09th, 12th ,
17th , and 18th September 2012.
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 Majlise-
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 CMA 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
parawise comments. In response to the notice, learned 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
Constitution Petition No. 05 of 2012 -: 4 :-
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 that
if they desire, they can also appear at their own by filing their
replies alongwith 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 parawise 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 I fulfill the qualifications specified
in Article 62 of the Constitution and I 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”.
Constitution Petition No. 05 of 2012 -: 5 :-
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 versus 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 CMA
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
1. 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 Hafez
Sheikh
PPP Pakistani USA
11. Anusha Rehman PML(N) Pakistani Canada
Constitution Petition No. 05 of 2012 -: 6 :-
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 CMA No.2492 of 2012
for impleading of Mr. Jamil Malik, MNA, Mr. Jamshed
Rahmatullah, ASC has filed CMA No.2953 of 2012 for
impleading of Mr. Jamil Ashraf, MPA and Mr. Tariq Asad, ASC
has filed CMA 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 CMAs noted above:-
1. “Ms. Farah Naz Isfahani, MNA;
2. Mr. A. Rehman Malik, Senator;
3. Ch. Zahid Iqbal, MNA;
4. Ch. Iftikhar Nazir, MNA;
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 Hafeez 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.
Constitution Petition No. 05 of 2012 -: 7 :-
11. Mr. Wasim Sajjad, learned Sr. ASC in reply on behalf
of Ms. Farah Naz Isfahani, MNA filed CMA No. 2231 of 2012 and
admitted that she is a holder of citizenship of USA, Mr. Khawar
Mehmood Khatana, ASC why filed CMA 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 CMA No. 1927 of
2012 and CMA 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 CMA
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. CMA 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 CMA No.2802/2012, CMA 2882 of
2012 and CMA 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 Netherland he had acquired
citizenship of the said country.
Constitution Petition No. 05 of 2012 -: 8 :-
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 versus 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 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 Netherland he had acquired
citizenship of the said country. Further contends that since his
Constitution Petition No. 05 of 2012 -: 9 :-
client was adopted by his real uncle he had acquired citizenship
of Netherland 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 Netherland. 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.
Constitution Petition No. 05 of 2012 -: 10 :-
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. It 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 UK 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 UK in the year 2012 as Member of Parliament
and as such he was rightly elected as a Senator.
Constitution Petition No. 05 of 2012 -: 11 :-
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 of the Constitution pertains to preelection
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 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
Constitution Petition No. 05 of 2012 -: 12 :-
Armey 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 amen, 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—
Constitution Petition No. 05 of 2012 -: 13 :-
(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 a 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
Constitution Petition No. 05 of 2012 -: 14 :-
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.
30. It was held in the case of Tata Consultancy
Services versus 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 versus.
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,
Constitution Petition No. 05 of 2012 -: 15 :-
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.
Constitution Petition No. 05 of 2012 -: 16 :-
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 to
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
check Executive, to give guideline for policies of the Government
including defence, foreign, finance, etc. etc. In the case of
Iftikhar Ahmad Khan Bar versus 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 manner so as to apply to situations and
conditions which might arise in future. The words and
Constitution Petition No. 05 of 2012 -: 17 :-
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 versus Union of India, (AIR 2000 SC 314), and
Abdul Razak versus 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
Constitution Petition No. 05 of 2012 -: 18 :-
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) can not 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 (1) (c) relate to post election disqualification
only.
43. If we compare Article 63 (1) with Article 63(A) 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
63(A) 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
Constitution Petition No. 05 of 2012 -: 19 :-
Majlis-e-shoora, whereas, Article 63(A) 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 that any
person whether he is Member of the Majlis-e-Shoora shall be
disqualified if any one of the disqualifications mentioned in the
said Article applicable upon him. The Article further provides
that the person shall be disqualified “from being elected or
chosen” relates to pre post election disqualification whereas
“from being a Member of Majlis-e-Shoora” relates to post
election disqualification. The Article 63 of the Constitution has
dealt with both i.e. pre and post election disqualification.
Constitution Petition No. 05 of 2012 -: 20 :-
47. The general principle of Interpretation of Statues is
equally applicable while interpreting any provision of the
Constitution. However, while interpreting a provision of the
Constitution great caution has to be taken by the Court, as the
Constitution is an instrument i.e. the supreme law which
creates the Legislature itself, makes ordinary statutes with
respect to which canons of statutory interpretation have been
formulated by the Courts. The task of expounding a
Constitution is crucially different from that of construing a
statute. The Statute can easily be enacted and repealed by
simple majority of Members of Parliament whereas, any
provision of the Constitution can be amended only by 2/3rd
majority of both the Houses.
48. In the case of Muhammad Yasin versus Federation
of Pakistan, (PLD 2012 SC 132), it was held that “meaning of
the Constitution is to be aggregated from the Constitution as
interpreted in the rule based on reason.”
49. It is not out of place to reproduce the oath required
to be taken at the time of acquiring citizenship of Britain and
United States respectively.
“I will give my loyalty to the United Kingdom and
respect its rights and freedoms. I will uphold its
democratic values. I will observe its laws faithfully
and fulfill my duties and obligations as a British
citizen.”
UNITED STATES
“I hereby declare, on oath, that I absolutely and
entirely renounce and abjure all allegiance and
fidelity to any foreign prince, potentate, state, or
Constitution Petition No. 05 of 2012 -: 21 :-
sovereignty, of whom or which I have heretofore
been a subject or citizen; that I will support and
defend the Constitution and laws of the United
States of America against all enemies, foreign and
domestic; that I will bear true faith and allegiance
to the same; that I will bear arms on behalf of the
United States when required by the law; that I will
perform noncombatant service in the Armed Forces
of the United States when required by the law; that
I will perform work of national importance under
civilian direction when required by the law; and
that I take this obligation freely, without any
mental reservation or purpose of evasion; so help
me God.”
50. We have also noted that Members of the National
Assembly have taken oath under Article 65 of the Constitution,
whereby they have undertaken that they will perform their
functions honestly always in the interest of the sovereignty,
integrity, solidarity, well-being and prosperity of Pakistan and
will preserve, protect and defend the Constitution, whereas on
the other hand, at the time of acquiring citizenship of United
States of America they have taken oath that they will bear true
faith and allegiance to the US Constitution and will bear arms
on behalf of the United States when required by the law, etc.
51. The issue, whether a person holding citizenship of a
foreign state is qualified to contest the election or not, had come
for consideration before the Lahore High Court, in the case of
Umar Ahmad Ghumman versus Government of Pakistan and
others, (PLD 2002 Lahore 521), wherein a learned Judge of this
Court, Hon’ble Mr. Justice Tassaduq Hussain Jillani, as a
Judge of the Lahore High Court, held that:-
Constitution Petition No. 05 of 2012 -: 22 :-
“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
qualifications 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(1) (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 aforereferred
provision and cannot contest elections unless,
of course, he removes this disqualification in terms of
rule 19 of the Pakistan Citizenship Rules, 1952.”
Now we will deal with the matter related to respondents.
52. Ms. Farah Naz Isfahani, MNA; Ch. Zahid Iqbal,
MNA; Ms. Nadia Gabol, MPA; Ms. Amna Buttar, MPA and Mr.
Jameel Ahmed Malik, MNA and Dr. Ahmed Ali Shah, MPA have
not denied that at the time when they submitted their
nomination papers, they were holding citizenship of a foreign
Constitution Petition No. 05 of 2012 -: 23 :-
state, made statement on oath that they are qualified under
Article 62 (1) of the Constitution as well as not disqualified
under Article 63 (1) of the Constitution, apparently knowing
well that a person holding citizenship of a foreign sate is
disqualified from being elected or chosen as a member of the
Majlis-e-Shoora (Parliament). They apparently made a false
statement.
53. As regards Mr. Zahid Iqbal, MNA, vide order dated
18-3-2012, learned ASC appearing for Mr. Zahid Iqbal, MNA
was directed to file evidence/documents/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 till date despite giving time, thus we have no option but to
believe that Mr. Zahid Iqbal, MNA, is holding citizenship of
United Kingdom, having Passport No. 300997046 of Britain.
54. In CMA No. 2382 of 2012 filed by Malik Waheed
Anjum, ASC The Learned Counsel categorically stated that Mr.
Farhat Mehmood Khan, MNA is holder of USA Passport No.
470939019, Dr. Muhammad Ashraf Chouhan, MPA is holder of
British Passport No.202052945, Nadia Gabol, MPA is holder of
British Passport No.706860392. These Members of the
Parliament have not disputed the question of holding dual
citizenship of a foreign State despite service, therefore, we have
no option but to hold that at the time of submitting of their
nomination papers they were disqualified and ineligible to file
the same and apparently have made false statements while
submitting their nomination papers.
Constitution Petition No. 05 of 2012 -: 24 :-
55. Mr. Jamil Ahmad Malik, MNA, has not denied that
he is a holder of citizenship of Netherland, however, stated that
he has acquired citizenship after attaining the age of majority
as he was adopted by his uncle when he was minor who was
citizen of Netherland.
56. Article 102 of the Indian Constitution, disqualified a
person if he “voluntarily” acquired citizenship of a foreign State
whereas Article 63 (1) (c) of the Constitution has specified
disqualification if any person who whether voluntarily or not,
acquired citizenship of a foreign State from being member of
Parliament. The contention of learned ASC that his client has
not acquired citizenship voluntarily and cannot be disqualified,
thus has no force.
57. As regards Ch. Waseem Qadir, MPA though learned
counsel has appeared on his behalf and on one date of hearing
he has also appeared in person and handed over Pakistani
Passport to Court Associate but till date no CMA has been filed
denying the allegation that he is not holder of citizenship of any
foreign State.
58. Ch. Nadeem Khadim, MPA has also not filed any
CMA to dispute that he is not a holder of citizenship of any
foreign State.
59. As regards Mr. Sabir Ali Baloch, Senator, Malik
Waheed Anjum, learned ASC, has filed CMA No.2382 of 2012
wherein he has alleged that he (Mr. Sabir Ali Baloch, Senator) is
a holder of dual citizenship but he has not mentioned the name
of the State of which he is holding citizenship and no material
Constitution Petition No. 05 of 2012 -: 25 :-
in support of his contention has been produced, thus request to
the extent of Mr. Sabir Ali Baloch, Senator to declare him
disqualified being holder of dual citizenship, is declined.
60. Ms. Anusha Rehman, MNA in reply has stated that
she is a citizen of the Islamic Republic of Pakistan by birth and
this is the only citizenship/nationality which she has held, and
still holds and that she belongs to one of the oldest families
hailing from Lahore, Mr. Waheed Anjum, petitioner also
withdrew his allegation against Ms. Anusha Rehman thus to
her extent the proceeding is also dropped.
61. The proceedings against Sardar Shahjehan Yousaf,
MNA and Ch. Iftikhar Nazir, MNA are also dropped, as learned
counsel does not press his allegations of holding dual
citizenship, and tenders apology.
62. Khawaja Muhammad Asif, MNA has appeared and
categorically questioned the allegation leveled against him.
Learned ASC dropped the allegation leveled against him. He has
also dropped allegation against Abdul Hafez Sheikh, Senator
that he is holder of dual nationality.
63. As far as the matter relating to Mr. Tariq Mehmood
Alloana, MPA is concerned, serious allegations were leveled
against him. In support of his contentions Malik Waheed
Anjum learned ASC has placed on record letter No.
FIA/IBMS/Supreme Court/Qurey/1521 wherein it was
affirmed that on the basis of particulars mentioned, the closest
travel history of the person has been found in the system and
Constitution Petition No. 05 of 2012 -: 26 :-
R-11 Form. It is alleged that he was a US National and also that
he travelled on the US passport.
64. On our direction, Mr. Muhammad Azam Khan,
Director (Law), FIA submitted a report, contents whereof are
reproduced herein-below:-
“1. That Malik Waheed Anjum learned ASC submitted
an application to DG, FIA for the provision of travel
history of Tariq Mehmood son of Lal Khan passport
No.211267712. in this application the following
two Pakistani passports Nos. allegedly belonging
to Tariq Mehmood were also mentioned for the
said purpose.
a. CW151051
b. CW0151052
2. That on search of PISCES/IBMS database it
transpired that one Tariq Mehmood holding
passport No.211267712 landed at Islamabad
airport by PK-718 on 14.2.2006 and departed
back on 28.2.2006 by PK-717 from Karachi
airport.
3. The said Tariq Mehmood holder of American
Passport No. 211267712 again entered in
Pakistan on 19.07.2008 by PK-718 landed at
Islamabad airport and from the same airport, he
left the country on 01.08.2008 by PK-715. R11-
travel history IBMS data form is attached. (Annex-
A).
4. Regarding two Pakistani passports
No.CWD0151051 and CW0151052, there is
nothing available in Database System about entry
or exit of any person on the basis of these
passports.
5. On further analysis of the system it transpired that
on both the occasions when Mr. Tariq Mehmood
Alloana arrived at Islamabad airport, he presented
his National Identify Card Overseas Pakistanis
(NICOP).
Constitution Petition No. 05 of 2012 -: 27 :-
6. On NADRA database verification of NICOP No.
37201-1113961-7 (Annex. B) the following
information has been produced:-
i. Name Tariq Mehmood
ii. Father’s name Lal Khan
iii. Date of Birth 15.05.1960
iv. Country of Stay USA
v. Present Address: 1099 Coney, Island
Ave. Brooklyn, New Your, 11230
United States.
vi. Permanent Address: House No. Bviii-218 Street
No.4 Mohallah Sarpak Chakwal, District Chakwal,
Pakistan.
Report is submitted, please.
On behalf of Director General
Sd/-
Muhammad Azam Khan
Director/Law
03.07.2012.”
65. We have heard Mr. Khawar Mahmood Khattana,
ASC and Mr. Malik Waheed Anjum, ASC in detail and vide
order dated 04.07.2012, the Additional Registrar of this Court
was directed to lodge a criminal complaint against the DG, FIA,
the Deputy Director who signed and furnished the incorrect
information/documents and all other persons involved, on the
strength of this order and annexure hereof. The I.G. Police,
Islamabad was also directed to supervise the investigation of
the case himself and to submit a report to the Registrar of this
Court on weekly basis for our perusal in Chamber.
66. Malik Waheed Anjum, ASC who filed CMA No.
No.2382 of 2012 alleging that Khawaja Muhammad Asif, MNA,
Mr. Abdul Hafeez Sheikh, Senator, Ms. Anusha Rehman, MNA.
Constitution Petition No. 05 of 2012 -: 28 :-
Ch. Iftikhar Nazir, MNA, Mr. Sabir Ali Baloch, MNA and Mr.M.
Tariq Asad, ASC have filed CMA No. 2487 of 2012 praying that
Sardar Shahjehan Yousaf, MNA is holding the citizenship of
UK, tendered their apology to these Parliamentarians and
regretted for the inconvenience caused to them. We in view of
the acceptance of the apology by the learned
counsel/respondents, are not imposing cost for filing
application against them without any material alleging that
they are holding dual citizenship, however, it is expected that in
future they (learned counsel) will be more careful
67. Keeping in view the principle of Interpretation of
Statute/Constitution, as briefly discussed here-in-above,
Article 63 (1) (c) of the Constitution read with Section 14 of the
Pakistan Citizenship (Amendment) Act 1972 (Act XVII of 1972),
we have no doubt in our mind that a person holding dual
citizenship is disqualified from being elected or chosen as
member of the Majlis-e-Shoora (Parliament).
68. Now we will deal with the case of Mr. A. Rehman
Malik, Senator. Admittedly he was holder of Nationality of U.K.
It is not disputed by him that he (Mr. A. Rehman Malik,
Senator) acquired citizenship of U.K, however, he alleged that
he has renounced his citizenship of UK on 25.03.2008 and a
letter dated 19.04.2012 was placed on record in support of his
contention that he had renounced his citizenship of U.K. on
25.03.2008 and we would like to reproduce the contents of the
said letter which reads:-
Constitution Petition No. 05 of 2012 -: 29 :-
“MINISTER FOR
INTERIOR
Government of
Pakistan
Islamabad
SENATOR A. REHMAN MALIK
No.I/PS/M/2012
Dated: 19th April,
2012
In Re: CONSTITUTION PETITION NO.5 OF 2012
Syed Mehmood Akhtar Naqvi
Petitioner
Vs.
The Federal Government through Secretary Law and
others
Respondents
Please refer to your letter No.1(3)/2012-AGP dated 31st March
2012, concerning the above cited Constitutional Petition.
In this regard, it may be informed that by virtue of my
continuous exile in UK for nine years due to political
victimization and life threats in Pakistan, which is a matter of
public record, I was granted British nationality but I never
renounced my Pakistani citizenship as dual nationality is
allowed under the Pakistani law. However, I renounced my
British nationality on 25.03.2008 before I held public office. I
thus do not hold any other citizenship including of British
nationality except that of Pakistani citizenship.
Yours sincerely
-sd-
(Senator A. Rehman Malik)
69. We have repeatedly asked and granted sufficient
time and opportunity to learned counsel for Mr. A. Rehman
Malik to produce certificate issued by the U.K. Border Agency
in terms of section 12(1) of the British Nationality Act, 1981
confirming that he had renounced his citizenship of UK on
25.03.2008 as alleged and he is no more citizen of U.K.
Constitution Petition No. 05 of 2012 -: 30 :-
70. Learned counsel appearing on his behalf placed on
record letter dated 29.05.2012 issued by the UK Border
Agency. Contents of the same are reproduced herein-below:-
“Home Office
UK Border
Agency
Mr. A. R. Malik Our Ref M751044
25 Norfolk Crescent your Ref
LONDON Date 29 May 2012
W22YS
Dear Mr. Malik
Renunciation of British Citizenship
I am writing to inform you are now registered as having
renounced British Citizenship.
Enclosed is the Declaration of renunciation bearing a stamp of
registration. This confirms the date on which you ceased to be
a British Citizen under Section 12(1) of the British Nationality
Act, 1981.
Yours sincerely,
-sd-
Mrs CS Hughes
Managed Migration, Nationality Group
Department 73”
71. From the certificate issued by the UK Border
Agency, it appears that they have informed Mr. A. Rehman
Malik on 29.05.2012 that “you are now registered as having
renounced British Citizenship”. They have enclosed the
Declaration of renunciation bearing a stamp of registration, the
date on which he ceased to be a British Citizen under Section
12(1) of the British Nationality Act, 1981, however, said
declaration of renunciation had not been placed on record
despite we repeatedly asked that the same may be placed on
record.
Constitution Petition No. 05 of 2012 -: 31 :-
72. From bare reading of the said letter dated
29.05.2012 by U.K. Border Agency, it appears that Mr. A.
Rehman Malik has been registered as having renounced British
Citizenship on 29.05.2012. This aspect of the matter has
already been discussed in our short order, thus need not be
discussed in detail again but suffice it to say that apparently
for this reason realizing legal position, he has resigned from
membership of the Parliament on 11.07.2012 and against the
vacant seat he participated in the fresh elections and was
declared successful candidate vide notification dated
24.07.2012.
73. In the case of Muhammad Azhar Siddiqui versus
Federation of Pakistan, (PLD 2012 SC 774, in an additional
note it was held by Hon’ble Mr. Justice Jawwad S. Khawaja
that:-
“The people have thus, in the clearest possible
terms, stated that they will not allow
themselves to be represented by a person who
has or earns a disqualification under Article 63
ibid.
74. This Court in the judgment reported as Muddasar
Qayyum Nahra versus Ch. Bilal Ijaz and others, (2011 SCMR
80) quoted with approval, the paragraphs No. 21 & 22 of an
earlier judgment pronounced by this Court, and reported as
Ch. Bilal Ijaz versus Mudassar Qayyum Nahra and 4 others,
(2010 CLC 1692) which reads as under: -
“21. The concept of inserting Article 62 clause (f)
in the Constitution is very purposeful;
Constitution of Islamic Republic of Pakistan,
Constitution Petition No. 05 of 2012 -: 32 :-
1972 cannot be said to have incorporated the
said clause without any meaningful objective.
The holders of Public offices like members of
National and Provincial Assemblies are expected
to be persons of unimpeachable character. The
terms used in clause (f) of Article 62 of the
Constitution of Islamic Republic of Pakistan,
1973 need to be understood and implemented in
order to stop dishonest and cheatful persons
from entering into the corridors of the National
and Provincial Assemblies. The words written in
clause (f) are thus reproduced below which are
denied and interpreted in well known English
Dictionaries as are available on web-side
(site)/internet with universally accepted
meanings:--
Sagacious
(i) Skillful in statecraft or management
(ii) Market by artful prudence expedience and
shrewdness.
(iii) Having prompt wisdom.
(iv) A wise leader.
(v) Insightful; foresighted
Righteous
(i) Morally upright, without guilt or sin.
(ii) Characterized by accepted standard of
morality or justice
(iii) Good: morally admirable.
(iv) Clean handed; guiltless.
(v) Just: Used, especially of what is legally or
ethically right of proper or befitting
(vi) Moral: concerned with right and wrong or
conforming to standards of behavior:
morally excellent worthy.
(vii) Virtuous; morally excellent worthy.
(viii) Worthy; having worth or merit or value;
being Hon’ble or admirable.
(ix) Honest; blameless.
Constitution Petition No. 05 of 2012 -: 33 :-
Non profligate
(i) Recklessly wasteful.
(ii) Wildly extravagant.
(iii) Shamelessly immoral or debauched.
(iv) Spendthrift.
(v) Prodigal in their expenditures.
(vi) Squandering
Honest:
(i) Displaying integrity; upright.
(ii) Not deceptive or fraudulent.
(iii) Characterized by truth; not false.
(iv) Sincere.
(v) Not given to cheating.
Ameen (An Arabic word)
Meaning:
Trustworthy: faithful.
22. The concepts projected in using all the
above terminology is not difficult to understand.
It demonstrates a keen desire of the Constitution
that persons desiring to engage themselves in
the process of law making for the country must
themselves be possessed with High qualities of
personal character and moral values. A legislator
who indulges into unfair means in earning or
procuring his educational documents cannot be
termed to be possessing the required standards
of high personal characteristics mentioned in
clause (f) of Article 62 of the Constitution of
Islamic Republic of Pakistan, 1973. Members of
the National or Provincial Assemblies on their
successful election have been further obliged to
take oath as incorporated in the third schedule
of the Constitution, with necessary condition of
undertaking the performance of the duties and
functions honestly in accordance with
constitution. Elected members are further likely
Constitution Petition No. 05 of 2012 -: 34 :-
to be entrusted with the other high and onerous
offices of the Prime Minister, Federal Minister,
Speaker of the National and Provincial
Assemblies, Deputy Speakers of the National
and Provincial Assemblies and Chief Ministers of
the Provinces. The swearing of solemn oath from
such holders of public offices are also prescribed
in the Constitution requiring similar
performances of duties and functions with
honestly and also to be faithful to be
Constitution and the law. A person who indulges
into unfair means in procuring his educational
qualifications and is also found guilty by the
Disciplinary Committee, which is the only
authority competent to inquire into the matters
of such allegations against candidates appearing
in the examination of the said University, does
not deserve to claim to be an honest, righteous
or Ameen person so that he be assigned the high
responsibilities of performing national functions
of running the affairs of the country. The spirit
with which the words sagacious, righteous, non
profligate, honest and Ameen have been used by
the Constitution of Islamic Republic of Pakistan,
1973 for the eligibility of the candidates
contesting the elections of Members of National
or Provincial Assembly cannot be allowed to be
frustrated if persons who secure their
educational documents through unfair means
and are found guilty of such a condemnable act
by file (the) competent authority are allowed to
be given any entry into the doors of National or
Provincial Assemblies or (of) our country. The
respondent No.1 not only is found guilty of a
dishonest or cheatful involvement into the use of
unfair means in procuring his
B.A./degree/results from the University of
Punjab but also made deliberately false
Constitution Petition No. 05 of 2012 -: 35 :-
statement before this Tribunal as well when
P.W.1 was suggested that he was admittedly not
holder of the B.A. degree from the University of
the Punjab whereas in his written statement
Exh.P12, the respondent where he was
respondent No.4 in the said writ petition
categorically took up the plea and claimed to be
holder of a valid B.A. degree from the University
of the Punjab. He is thus not worthy of credence
and cannot be allowed to be entrusted with
State responsibilities of Law Making; to be incharge
of the National Exchequer (Exchequer) or
be eligible to represent the people of Pakistan.’
75. In the case of Iftikhar Ahmad Khan Bar versus
Chief Election Commissioner Islamabad and others, (PLD
2010 SC 817) it was held that:-
“An here is a man who being constitutionally and
legally debarred from being its member, managed
to sneak into it by making a false statement on
oath and by using bogus, fake and forged
documents polluting the piety of this pious body.
His said conduct demonstrates not only his
callous contempt for the basic norms of honesty,
integrity and even for his own oath but also
undermines the sanctity, the dignity and the
majesty of the said august House. He is guilty,
inter alia, of impersonation…posting to be what
he was not i.e. a graduate. He is also guilty of
having been a party to the making of false
documents and then dishonestly using them for
his benefit knowing them to be false. He is further
guilty of cheating---cheating not only his own
constituents but the nation at large.”
Constitution Petition No. 05 of 2012 -: 36 :-
76 From facts noted herein-above, what appears is that
respondent was holding of citizenship of a foreign State, made
statement on oath that he is qualified under Article 62(1) (c) of
the Constitution and not disqualified under Article 63 (1) of the
Constitution apparently made false statement.
77. For ease of reference, we would like to reproduce
para Nos: 17, 18 and 19 of our short order which read as
under:-
17. It is to be noted that a candidate,
while filing nomination papers signs a
declaration on oath to the following
effect: -
“DECLRATION AND OATH BY THE
PERSON NOMINATED
I, the above mentioned candidate, hereby
declare on oath that, —
(i) I have consented to the above
nomination and that I fulfill the qualifications
specified in Article 62 of the Constitution and
I am not subject to any of the
disqualifications 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.
18. The above declaration is applicable to the
candidates of membership of Parliament and
Provincial Assemblies, therefore, whoever
signs such a declaration is meant to be fully
aware of the constitutional provisions and
after signing the said declaration if the same
Constitution Petition No. 05 of 2012 -: 37 :-
turns out to be false, he makes himself liable
to be disqualified from being elected or
chosen as Member of the Majlis-e-Shoora
(Parliament) or a Provincial Assembly for
making misstatement or concealment of fact,
and also exposes himself to criminal
proceedings contemplated under sections
193, 196, 197, 198 and 199 PPC.
19. In view of the constitutional provisions under
Article 63(1)(c) & (p) of the Constitution read with
section 99(1)(f) of the Representation of the
People Act, 1976 it is to be seen as to
whether their cases are to be dealt with by
the Speaker/Chairman under Article 63(2) or
by the Election Commission under Article
63(3) or are to be de-notified by the Election
Commission after having been declared to be
disqualified from being a member of Majlis-e-
Shoora or Provincial Assemblies. This Court
has earlier dealt with this matter in the case
of Syed Yousaf Raza Gillani in Constitution
Petition No. 40 of 2012, etc. He was
convicted by a 7-Member Bench vide
judgment dated 26.04.2012 for contempt of
Court under Article 204(2) of the Constitution
read with section 3 of the Contempt of Court
Ordinance, 2003 and sentenced under
section 5 of the said Ordinance and the
reference filed by one Maulvi Iqbal Haider
Constitution Petition No. 05 of 2012 -: 38 :-
before the Speaker of Assembly to declare
him disqualified under Article 63(2) was
answered in the negative. Thereafter, the
ruling of the Speaker was challenged before
this Court through Constitution Petitions
which were allowed and while dealing with
the similar issue, the Court vide judgment
dated 19.06.2012 held as under: -
“As a Bench of 7 Hon’ble Judges vide
judgment dated 26.04.2012 followed by the
detailed reasons released on 08.05.2012
has found Syed Yousaf Raza Gillani guilty of
contempt of Court under Article 204(2) of the
Constitution of the Islamic Republic of
Pakistan, 1973 read with section 3 of the
Contempt of Court Ordinance, 2003 and
sentenced him to undergo imprisonment till
rising of the Court under section 5 of the said
Ordinance, and since no appeal was filed
against this judgment, the conviction has
attained finality. Therefore, Syed Yousaf
Raza Gillani has become disqualified from
being a Member of the Majlis-e-Shoora
(Parliament) in terms of Article 63(1)(g) of the
Constitution on and from the date and time
of pronouncement of the judgment of this
Court dated 26.04.2012 with all
consequences, i.e. he has also ceased to be
the Prime Minister of Pakistan with effect
from the said date and the office of the Prime
Minister shall be deemed to be vacant
accordingly;
The Election Commission of Pakistan is
required to issue notification of
disqualification of Syed Yousaf Raza Gillani
Constitution Petition No. 05 of 2012 -: 39 :-
from being a member of the Majlis-e-Shoora
w.e.f. 26.4.2012.”
78. As regards the contention of learned Attorney
General for Pakistan that no disqualification has been provided
for other important Constitutional posts like the President,
Governors, Chief of Army Staff, Judges of the superior Courts
and Auditor General. Since this issue is not before us, we are
not expressing our opinion on it except to say that in terms of
Article 41 (2) of the Constitution only a person who qualified to
be elected as a Member of the National Assembly can be elected
as a President in accordance with provision of 2nd Schedule by the
members of the electoral college consisting of members of both
the houses and the members of the Provincial Assemblies and
that it is for the Legislature to decide, whether to amend the
Constitution/Law if they in their wisdom decided that on the
other constitutional posts, persons holding citizenship of a
foreign state are not qualified to hold such posts.
Is petition maintainable under Article 184(3) of the
Constitution
79. Although the question of maintainability of petition
under Article 184(3) of the Constitution has not seriously been
argued by the learned counsel for the respondents, the issue in
the petition about the disqualification of a person to be a
Member of Parliament, the State has to exercise its powers and
authority through the chosen representatives of the people and
Parliament one of the noblest, honourable and important
Constitution Petition No. 05 of 2012 -: 40 :-
institutions of the Country to make the laws for the nation and
safeguard their fundamental rights, is a question of public
importance.
80. The expression “public importance” has been
interpreted in a number of cases including Manzoor Elahi
versus Federation of Pakistan, (PLD 1975 SC 66), General
Secretary, West Pakistan Salt Miners Labour Union (CBA),
Khewra, Jhelum versus Director Industries and Mineral
Development, Punjab, (1994 SCMR 2061) and Mrs. Shahida
Zahir Abbasi versus President of Pakistan, (PLD 1996 SC
632). It is quite clear that the question as to whether a
particular case involves the element of ‘public importance’ is to
be determined by this Court with reference to the facts and
circumstances of each case.
81. For what has been discussed above, we declare that:-
(a) Ch. Zahid Iqbal, MNA, Ms. Farah
Naz Isfahani, MNA, Mr. Farhat
Mehmood Khan, MNA, Mr. Jamil
Ahmad Malik, MNA, Mr.
Muhammad Akhlaq,
MPA(Punjab), Dr. Muhammad
Ashraf Chohan, MPA (Punjab),
Ms. Nadia Gabol, MPA (Sindh),
Ch. Waseem Qadir, MPA
(Punjab), Ch. Nadeem Khadim,
MPA(Punjab), Ms. Amna Buttar,
MPA (Punjab), Dr. Ahmad Ali
Shah, MPA (Sindh) have been
found disqualified from being
Constitution Petition No. 05 of 2012 -: 41 :-
members of Majlis-e-Shoora
(Parliament) and Provincial
Assemblies because of their
disqualification under Article
63(1)(c) of the Constitution.
(b) The Parliamentarians/Members
of Provincial Assemblies, who
have been declared to be
disqualified, in view of the
established fact that they have
acquired the citizenship of
Foreign States, therefore, no
question has arisen, which is to
be determined by the
Chairman/Speaker. Thus, no
reference under Article 63(2) is
being made.
(c) The Election Commission is
directed to de-notify the respective
memberships of
Parliament/Assemblies of aforesaid
persons.
(d) All the Members of the
Parliament/Provincial Assemblies
noted above had made false
declarations before the Election
Commission while filing their
nomination papers and as such appear
to be guilty of corrupt practice in terms
of Section 78 of Representation of
Peoples Act, 1976, therefore, the
Election Commission is directed to
Constitution Petition No. 05 of 2012 -: 42 :-
institute legal proceedings against
them under section 82 of the Act read
with sections 193, 196, 197, 198 and
199 PPC in accordance with law.
(e) The members of
Parliament/Provincial Assemblies
noted hereinabove, being disqualified
persons are directed to refund all
monetary benefits drawn by them for
the period during which they occupied
the public office and had drawn their
emoluments etc. from the public
exchequer including monthly
remunerations, TA/DA, facilities of
accommodation along with other perks
which shall be calculated in terms of
money by the Secretaries of the Senate,
National Assembly and Provincial
Assemblies accordingly.
(f) The amount, so recovered from
all of them by respective
Secretaries shall be deposited in
the public exchequer within a
period of two weeks and
compliance report shall be sent to
the Registrar.
(g) As regards the case of Senator A.
Rehman Malik, it may be noted
that at the time of filing of
nomination papers for election to
the Senate held in the year 2008,
he had made a false declaration
Constitution Petition No. 05 of 2012 -: 43 :-
to the effect that he was not
subject to any of the
disqualifications 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
Parliament/Provincial Assembly,
therefore, reference will be
required to be made to the
Chairman Senate under Article
63(2) in view of the provision of
section 99(1)(f) of the Act of 1976,
which lays down that a person
shall not be qualified from being
elected or chosen as a member of
an Assembly unless he is
sagacious, righteous and nonprofligate
and honest and ameen.
Mr. A. Rahman Malik, in view of
the false declaration filed by him
at the time of contesting the
election to the Senate held in the
year 2008, wherein he was
elected, cannot be considered
sagacious, righteous, honest and
ameen within the contemplation
of section 99(1)(f) of the Act of
1976. Therefore, for such
purposes Article 63(p) is to be
adhered to because the
disqualification incurred by him
is envisaged under the law,
referred to hereinabove in view of
his own statement that he had
Constitution Petition No. 05 of 2012 -: 44 :-
renounced his citizenship of UK
whereas the fact remains that
such renunciation along with
declaration can only be seen as
having been made on
29.05.2012.
(h) Senator A. Rehman Malik is
directed to refund all monetary
benefits drawn by him upto
11.7.2012 for the period during
which he occupied the public
office in the same manner as
directed in the case of other
Parliamentarians noted above.
(i) As Mr. A. Rehman Malik had
made false declarations while
filing his nomination papers
before the Election Commission
in the election held in the year
2008, therefore, the Election
Commission is directed to
institute legal proceedings
against him as it has been
directed in the case of above said
parliamentarians.
82. The Election Commission of Pakistan is also
directed to examine the cases of the Parliamentarians and the
members of Provincial Assemblies, individually, by obtaining
Constitution Petition No. 05 of 2012 -: 45 :-
fresh declaration on oath from all of them that they are not
disqualified under Article 63(1)(c) of the Constitution.
83 In view of the above, the titled Constitution Petition
is disposed of in the above terms.
84. These are the reasons of our short order.
Chief Justice
Judge
Judge
Islamabad
Approved for reporting
Constitution Petition No. 05 of 2012 -: 46 :-
Jawwad S. Khawaja, J. I have had the benefit of going through the reasoning
of my learned brother Khilji Arif Hussain, J. in support of the short order
dated 20.9.2012. I am in agreement with his conclusions but am adding this
concurring opinion giving my additional reasons in support of the said
order.
2. At the outset it is necessary to set out with clarity the precise issue
before us: Does our Constitution permit a citizen of Pakistan, who also
acquires the citizenship of another State, to become a member of Pakistan’s
Parliament or of a Provincial Assembly? The Constitution’s answer to this
question is a simple “No”. The basis for this is Article 63(1)(c) which states in
the clearest terms that: “[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 … acquires the citizenship of a foreign State…” Article 63(1)(c) also receives
strong textual support from other parts of the Constitution as elaborated
later in this opinion. On account of Article 113, the disqualification stated in
Article 63(1)(c) also extends to members of the provincial assemblies. This
constitutional imperative should have been clear to all from the very
beginning; but clearly, like some other constitutional dictates, it had not been
adhered to. As far back as 2002, in the case titled Umar Ahmad Ghumman
versus Government of Pakistan and others (PLD 2002 Lahore 521), it was held
that a Pakistani who has acquired the Citizenship of a foreign State is
disqualified from membership in Parliament or a Provincial Assembly.
Today, in deciding the petition presently before us, we have done nothing
more than to give effect to this rule which already exists in the Constitution.
3. We reiterate that the dual citizenship held by expatriate and overseas
Pakistanis is not the issue requiring adjudication in this case. The learned
Attorney General and counsel representing some of the respondents appear
Constitution Petition No. 05 of 2012 -: 47 :-
to have confused dual citizenship with the Constitutional disqualification
contained in Article 63(1)(c) ibid. We may clarify that section 14(1) of the
Citizenship Act, 1951, confers upon Pakistani citizens the right to hold the
citizenship of certain other countries without having to forgo their Pakistani
citizenship. The right, therefore, of Pakistani citizens to hold dual citizenship,
as per law, remains very much a statutory right vested in them. The extent
and scope of that legal right has no relevance to the question of
disqualification relating to eligibility for being a member of Parliament or of
a Provincial Assembly.
4. In fact, on numerous occasions in the recent past, this Court has
expressed the national sentiment of gratitude for our expatriates, estimated
to be in the range of 7 to 8 million in number. Most of them, particularly
those working in Middle Eastern countries donot hold dual citizenship.
These sons and daughters of Pakistan toil in foreign lands, away from their
hearths, homes and loved ones and, in the process, provide an economic
lifeline to Pakistan in these critical times. In the last financial year, these
overseas Pakistanis remitted more than US$ 13 billion in hard cash, to bolster
the economy of the country. This figure is slated to increase in the current
financial year. Yet, at times, these hardworking and patriotic Pakistani
expatriates receive short shrift and humiliating treatment from government
agencies such as the Immigration and other services, Civil Aviation
Authority (CAA) and the Overseas Pakistanis Foundation (OPF), when they
return to Pakistan after months or even years away from home. This Court
has taken suo moto notice (HRC No. 24770-G/2011) of the maltreatment
which overseas Pakistanis receive at the hands of such authorities.
5. The particulars of the petitioners, interveners and the respondents and
the arguments presented by them have been sufficiently addressed in the
Constitution Petition No. 05 of 2012 -: 48 :-
lead opinion. The reasons for considering the present petitions maintainable
are also evident. The text of the Constitution is clear enough. It plainly
disqualifies a person from seeking election to or from being a member of
Parliament if he acquires the citizenship of another State. What is, however,
worth emphasizing is also the spirit behind Article 63 (1)(c) ibid. This
becomes clear when we read the article together with certain other relevant
provisions of the Constitution. Courts in Pakistan have, repeatedly, held that
the Constitution is to be read as an organic whole, whose meaning is to be
gathered holistically through reason (Munir Bhatti v. Federation of Pakistan
PLD 2011 SC 407). This is why it is a matter of utmost importance that the
spirit behind Article 63(1)(c) is also fully comprehended, when interpreting
and applying its clear intent.
6. When trying to understand the spirit behind Article 63(1)(c), the first
point that needs to be considered is the fiduciary role envisaged for members
of Parliament in our Constitution. In a number of judgments, we have
emphasized the notion that all state authority is in the nature of a “sacred
trust” and its bearers should therefore be seen as fiduciaries. In Muhammad
Yasin v. Federation of Pakistan (PLD 2012 SC 132), we held that “holders of
public office … are, first and foremost fiduciaries and trustees for the People of
Pakistan. And, when performing the functions of their Office, they can have no
interest other than the interests of the honourable People of Pakistan …”.
Parliamentarians, while acting as trustees and the chosen representatives of
the people, take decisions which are often of grave consequence for the
protection of the economic, political and over-all national interests of the
people of Pakistan. In other words, theirs is a fiduciary duty of the highest
order. In our Parliamentary democracy, members of Parliament also
Constitution Petition No. 05 of 2012 -: 49 :-
constitute the Government as defined in Article 90 of the Constitution and
elect the Prime Minister who is the chief executive of the country.
7. It is well settled that the foremost obligation of a fiduciary is to show
complete loyalty to the principal and to scrupulously avoid situations which
may create a conflict of interest in the performance of such duty. Cognizant
of this principle, our Constitution requires constitutional functionaries
including members of the National Assembly, Senators and members of
Provincial Assemblies to solemnly swear that they will “bear true faith and
allegiance to Pakistan” and act “always in the interest of the sovereignty, integrity,
solidarity, well-being and prosperity of Pakistan.” (Third Schedule, Constitution)
8. It should be obvious that holding dual citizenship is likely to create
situations for the holder where he faces a conflict of interest in the discharge
of fiduciary duty to the people of Pakistan. The conflict of interest is
particularly evident when the acquisition of foreign citizenship entails taking
an oath of allegiance to the foreign state and renunciation of allegiance to
Pakistan. Thus, for instance, when Ms. Farah Naz Isfahani (and others such
as her) acquired citizenship of the United States, she swore an oath to bear
“true faith and allegiance to” the United States, to “bear arms” on its behalf and
to “renounce and abjure absolutely and entirely all allegiance and fidelity to any
foreign … state…” such as Pakistan. This oath is a statutory requirement
stipulated in the United States Code. Its present wording was introduced by
the Immigration and Nationality Act, 1952 and cannot be waived except in
very rare circumstances, such as being a minor or of unsound mind.
Similarly, when Mr. A. Rehman Malik (and others such as him) acquired
British citizenship, he swore “by Almighty God that on becoming a British citizen
[he] will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the
Second, her heirs and successors …” and that he will give his “loyalty to the
Constitution Petition No. 05 of 2012 -: 50 :-
United Kingdom.” Clearly, oaths of this nature, do conflict with the fiduciary
obligation of unswerving and undivided loyalty to Pakistan and its people. It
is hard to see how someone who has openly “renounce[d] and abjure[d]” all
allegiance to Pakistan or who has sworn allegiance to a foreign monarch, can
then be safely entrusted with the “sacred trust” of protecting the interests of
the people of Pakistan. In sum, therefore, acquiring the citizenship of a
foreign state does create a serious conflict of interest; such conflict of interest
renders a person unsuited for discharging a fiduciary duty as onerous as
being a public representative. This is precisely the spirit in which the framers
have enacted Article 63(1)(c) of the Constitution, which prevents citizens
who acquire the citizenship of another state from entering or remaining in
Parliament and in the Provincial Assemblies.
9. The conflict of interest situation anticipated in the Constitution is not
imaginary. It is a real proposition and can easily be illustrated through an
issue which is current and topical. In the case of Ms. Farah Naz Isfahani, for
instance, the implications of her oath of allegiance to the United States may
be contemplated. Debate within and outside Parliament has highlighted the
differences between the two States (of which Ms. Isfahani has citizenship) on
a number of issues such as drone strikes by the United States, on Pakistani
territory and citizens. There exist or may arise similar differences between
the two States. Situations like these do put dual citizens like Ms. Isfahani into
possible conflict of interest. On the one hand, she is committed to
“perform[ing] her functions… in the interest of the sovereignty, integrity, solidarity,
well-being and prosperity of Pakistan”, even if that entails consequences which
are adverse to the interests of the United States. At that same time, she is also
expected to “renounce … all allegiance and fidelity to” Pakistan and, if the need
arises, “bear arms on behalf of the United States” against Pakistan. The framers
Constitution Petition No. 05 of 2012 -: 51 :-
of our Constitution were clear enough to have found us a way out of such
conflict of interest situations by expressly specifying the disqualification
stated in Article 63(1)(c) and thus ensuring that there remain no doubts as to
the undivided loyalty of elected representatives, towards Pakistan and its
honourable people.
10. In this context we may also add that Interior Minister Mr. A. Rehman
Malik was reported to have made a statement that even after our short Order
dated 20.9.2012, there still remain in the houses of Parliament, persons who
are dual nationals. Notice was issued to Mr. A. Rehman Malik after
examination of the transcript of his statement. He appeared in Court and
stated that he will task “his boys” in the Ministry of Interior who can then
submit in Court a list of persons in Parliament/Provincial Assemblies
holding dual citizenship. The Election Commission of Pakistan is also in the
process of gathering information about such disqualified persons as has been
reported in the media to ensure adherence to the Constitution. It is of the
utmost importance that actions and decision-making in the highest elected
bodies are not tainted and possibly rendered subject to constitutional
challenge, on account of the presence of disqualified persons in such elected
bodies.
11. We are aware that the question of the eligibility of dual citizens for
holding office as public representatives has been dealt with somewhat
differently by the Constitutions of other countries. In India, the very act of
holding dual nationality is constitutionally barred. The Indian Constitution
explicitly states: “… no person shall be a citizen of India… if he has voluntarily
acquired the citizenship of any foreign State” (Article 9, Constitution of the
Republic of India, 1950). Since no Indian citizen can be a dual citizen, dual
citizens are also precluded from holding elected office. It may be noted that
Constitution Petition No. 05 of 2012 -: 52 :-
up until the Pakistan Citizenship (Amendment) Act, 1972, the law in
Pakistan also did not allow for holding dual citizenship. It is for this reason
the Constitutions of 1956 and 1962 did not contain any express
disqualification for dual citizens becoming parliamentarians because there
were no dual citizens permitted under law. Permission for holding dual
citizenship was legally granted in 1972 through the above-mentioned statute.
The Constitution of 1973, therefore, contained Article 63(1)(c) to ensure that
citizens of Pakistan who acquire dual citizenship, donot sit in Parliament.
The wisdom of the framers of the Constitution is founded on the
requirement of absolute and undiluted loyalty to Pakistan as a qualification
for having the privilege of being a chosen representative of the honourable
people of Pakistan. In Australia too, any person who is “under any
acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a
subject or a citizen … of a foreign power…” is disqualified from becoming a
Senator or a member of the House of Representatives (Section 44 (i),
Commonwealth of Australia Constitution Act). There may be States where
dual citizenship will not disqualify the holder from being elected as a
legislator. Pakistan, however, is not among such States.
12. The upshot of this brief over-view of comparative constitutional law is
that the framers of the Constitution in different countries strike a balance
between competing interests in the light of their own context. The balance
struck by the Constitution of Pakistan is that it does not disallow dual
citizenship, but it does prohibit dual citizens from holding high elected
office. Anyone familiar with the tragic episodes of Pakistan’s history would
recognize why the framers adopted a careful position in this matter, and why
this is an eminently reasonable position in our context.
Constitution Petition No. 05 of 2012 -: 53 :-
13. To sum up, it should be clear that we do not question the citizenship
rights of dual citizens under statute, nor does this Court seek to ignore their
invaluable services to the nation. In fact, as noted above, the Court has taken
a number of initiatives to ensure the well-being of overseas Pakistanis, some
of whom might also be dual citizens. It is only the privilege of sitting in
Parliament and the Provincial Assemblies and the honour of being decisionmakers
on behalf of the people of Pakistan which the Constitution, vide
Articles 63(1)(c) and 113 requires, be given to persons who are not the
citizens of another State. This is so because as discussed, in view of the
onerous fiduciary duties of public representatives, the Constitution
recognizes the special need to avoid all possible conflict of interest situations
in the elected bodies of the country.
(Jawwad S. Khawaja)
Judge
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