Supreme Court Decision in Dual Nationality Case
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Nadeem Malik
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 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 Constitution Petition No.05/2012 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 non-profligate 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 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.
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 Connstitution Petition No.05/2012 legal proceedings against him as it has been directed in the case of above said parliamentarians
IFTIKHAR MUHAMMAD CHAUDHRY, CJ. —
This petition
has been filed under Article 184(3) of the Constitution with the prayer
that the Parliamentarians having dual citizenship may be declared to
be disqualified in terms of Article 63(1)(c) of the Constitution read with
section 14 of the Pakistan Citizenship Act, 1951.
2. The matter was taken up on various dates, during course
whereof notices were issued to the following Parliamentarians allegedly
having dual citizenship: -
1. Mr. A. Rehman Malik, Senator
2. Mr. Abdul Hafeez Sheikh, Senator
3. Mr. Sabir Ali Baloch, Senator
4. Ch. Zahid Iqbal, MNA
5. Ch. Iftikhar Nazir, MNA
6. Ms. Farah Naz Isfahani, MNA
7. Mr. Farhat Mehmood Khan, MNA
8. Khawaja Muhammad Asif, MNA
9. Ms. Anusha Rehman, MNA
10. Mr. Jamil Ahmad Malik, MNA
11. Sardar Shahjehan Yousaf, MNA
12. Mr. Muhammad Akhlaq, MPA
13. Mr. Tariq Mehmood Alloana, MPA
14. Dr. Muhammad Ashraf Chohan, MPA
15. Ms. Nadia Gabol, MPA
16. Ch. Waseem Qadir, MPA
17. Ch. Nadeem Khadim, MPA
18. Ms. Amna Buttar, MPA
Constitution Petition No.05/2012
3
19. Dr. Ahmad Ali Shah, MPA
3. Four Parliamentarians, namely, A. Rehman Malik, Senator
(Sr.No.1), Ch. Zahid Iqbal, MNA (Sr.No.4), Ms. Farah Naz Isfahani,
MNA (Sr.No.6) and Mr. Jamil Ahmad Malik, MNA (Sr.No.10) entered
appearance through their counsel and contested the matter. The
Parliamentarians at serial Nos.1, 6 and 10 were admittedly holders of
dual citizenship, however, the Parliamentarian at serial No.4 against
whom sufficient material was placed on record, could not substantiate
that he was not in possession of dual citizenship.
4. This Court suspended the membership of some of the
Parliamentarians detail of which is mentioned hereinbelow: -
Sr.No. Name Date
1. Ms. Farah Naz Isfahani, MNA 25.05.2012
2. A. Rehman Malik, Senator 04.06.2012
3. Dr. Ahmad Ali Shah, MPA 13.06.2012
4. Mr. Muhammad Akhlaq, MPA 13.06.2012
5. Ms. Amna Buttar, MPA 13.06.2012
6. Ch. Zahid Iqbal, MNA 25.06.2012
7. Mr. Jamil Ahmad Malik, MNA 03.07.2012
8. Mr. Farhat Mehmood Khan, MNA 04.07.2012
9. Ms. Nadia Gabol, MPA 04.07.2012
5. M/s Muhammad Ashraf Chohan and Ch. Nadeem Khadim
MPAs, after service prayed for adjournment by sending applications,
which were allowed
vide order of even date, but subsequently they did
not deny the factum of having dual citizenship.
6. On the other hand,
vide orders dated 13.06.2012 &
4.7.2012 proceedings against the persons at serial No.2, 3, 5, 8, 9,
and 13 were dropped as no material was produced against them to
show they possessed dual citizenship. Mr. Tariq Asad, ASC through
CMA No. 2487 of 2012 claimed that Sardar Shahjehan Yousaf, MNA
was the holder of dual citizenship, but when the latter contested the
application through his counsel, the former withdrew his application
Constitution Petition No.05/2012
4
and also tendered apology for leveling unsubstantiated allegation,
therefore, no further proceedings are called for against Sardar
Shahjehan Yousaf, MNA.
7. It is to be noted that Mr. A. Rehman Malik
vide letter dated
19.4.2012 stated that he had renounced his citizenship of UK on
25.03.2008. Contents of the letter are reproduced herein below: -
"MINISTER FOR INTERIOR
Government of Pakistan
Islamabad
SENATOR A. REHMAN MALIK
No.I/PS/M/2012
Dated: 19
th 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 31
st 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)
8. It is noteworthy that along with the above letter, no reenunciation
form issued by the UK Border Agency was filed in terms of
section 12(1) of the British Nationality Act, 1981 to substantiate the
aforesaid claim. However, copy of letter dated 29.05.2012 issued by
Constitution Petition No.05/2012
5
UK Border Agency was placed on record subsequently. The same is
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"
9. Plea on his behalf was that he had applied to renounce his
British citizenship on 25.04.2008 before contesting the election of
Senate of Pakistan, but the UK Border Agency did not issue certificate
of renunciation of citizenship and subsequently when this matter came
up before the Court, the Solicitor in UK namely, PHI (Legal) confirmed
that he had renounced his British citizenship through his application
dated 25.04.2008. Alongwith letter, copies of the application form and
cheque of HSBC dated 25.04.2008 in the name of Accounting Officer,
Home Office, issued by Dr. Saeed Rehman were also annexed.
Whereas according to British Nationality Act, 1981, when a person files
application form, declaring that he wishes to renounce his British
citizenship or other British status, UK Border Agency returns the copy
of application form officially signed and stamped, together with the
documents filed with it. Despite repeated directions and opportunities
granted to him, Mr. A. Rehman Malik chose not to file these papers in
Constitution Petition No.05/2012
6
Court. This aspect of the case, however, shall be discussed in the
detailed order.
10.
Prima facie, it is apparent that Mr. A. Rehman Malik
renounced his citizenship after the institution of the listed petition, as
is evident from the contents of the letter dated 29.05.2012 wherein he
was informed that he was
"… now registered as having renounced
British Citizenship
". In addition to it declaration of renunciation bearing
stamp of registration was also enclosed in terms of legal provision
noted therein. But, surprisingly the copies of this declaration were not
placed on record despite the fact that the Court repeatedly directed for
filing of the same. His membership as a Senator was suspended on
04.06.2012, therefore, on account of this reason he could not continue
as the Interior Minister of the Government of Pakistan. However, he
was appointed as Advisor to the Prime Minister.
11. It appears that to overcome the disqualification, he
tendered resignation from the seat of Senate, which was accepted
vide
notification dated 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. In the meanwhile, he
filed CMA No.3467/12 stating therein the following reason to resign
from the membership of the Senate and to re-contest the election:-
"That serious allegations were leveled by the opposition
and carried by various media that laws were being
amended for him, therefore, in order to dispel any such
perception and in larger interest of democracy the
applicant resigned as Member of the Senate of Pakistan
under his signature on 9
th July, 2012. The Senate has
issued a notification of acceptance of resignation on 11
th
July, 2012. The same are placed on record."
Be that as it may, from the above facts it is established that having
renounced the citizenship and upon issuance of letter dated
29.05.2012 by the Home Office, UK Border Agency, he was satisfied
Constitution Petition No.05/2012
7
that disqualification proved against him stood removed, therefore, he
should occupy his seat in the Senate free from any disqualification. In
this behalf, it is to be noted that knowing well that his British
Nationality/citizenship did not stand renounced, he made a false
statement before the Court and the petitioner filed petitions for
initiating proceedings for contempt of Court against him, which shall
be considered separately later on.
12. The petitioner who appeared in person prayed to declare
all the respondent Senators, MNAs or MPAs to be disqualified as they
were holding those offices contrary to the provisions of Article 63(1)(c)
of the Constitution. For convenience same is reproduced hereinbelow:-
"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 -
(a)
(b)
(c) he ceases to be a citizen of Pakistan, or acquires the
citizenship of a foreign State"
13. Mr. Waheed Anjum, ASC has appeared as intervenor and
submitted a list of elected representatives, including those who
admittedly were not disqualified as they had no dual citizenship, as
such proceedings against them were dropped, detail of which has been
mentioned hereinabove. It is important to note that in respect of Mr.
Tariq Mehmood Alloana, MPA from Punjab, the matter was seriously
contested by Mr. Alloana, but Mr. Waheed Anjum, ASC stuck to his
stance. But later on, it was found that on the basis of false information
supplied by the FIA, he was seeking his disqualification for being an
MPA and when the matter was further probed and information was
collected from FIA, it transpired that attempt was being made to get
him disqualified with ulterior motives. As such directions were given to
Constitution Petition No.05/2012
8
the Additional Registrar of this Court to lodge a criminal complaint
against the concerned officers of FIA who had supplied incorrect
information. Accordingly, on the application of Additional Registrar,
Supreme Court, the case was registered on 04.07.2012. Proceedings
against Mr. Alloana were, therefore, dropped.
14. Learned Attorney General appeared on Court notice in
terms of Order XXVIIA CPC and did not support the contentions of
either the petitioner or of the intervenors.
15. It has been emphasized by Mr. Waseem Sajjad, Sr. ASC
appearing for Ms. Farah Naz Isfahani and learned Attorney General
that under Article 63(1)(c) of the Constitution, the phrases, namely,
"… … ceases to be a citizen of Pakistan", or "acquires the citizenship of
a foreign State" are to be read conjunctively and not disjunctively and
the word 'or' appearing in between those phrases is to be read as 'and'
because in such a situation, according to them, the Members of
Senate, National Assembly and Provincial Assemblies having dual
citizenship could continue in their offices without suffering from any
such disqualification.
16. After hearing the petitioner, learned Attorney General,
learned counsel for the respondents and others, taking into
consideration the relevant provisions of the Constitution reproduced
hereinabove and the material available on record, we are persuaded to
hold that if a candidate suffers from pre or post disqualification under
Article 63(1)(c) of the Constitution, no sooner such disqualification as
envisaged under the said Article is attracted, becomes and is
disqualified from being elected or chosen, and from being a Member of
the Malis-e-Shoora (Parliament). These provisions have to be
construed strictly by interpreting the same in view of the established
Constitution Petition No.05/2012
9
principle of interpretation by assigning plain and simple meanings to
the words and phrases used therein and avoiding any substitution
thereof as the same is not within the ambit of this Court.
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
1. 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 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
Constitution Petition No.05/2012
10
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 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.05/2012
11
from being a member of the Majlis-e-Shoora w.e.f.
26.4.2012."
20. Thus, for the reasons to be recorded later, 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 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
Constitution Petition No.05/2012
12
of Section 78 of Representation of Peoples Act, 1976,
therefore, the Election Commission is directed to 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 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
Constitution Petition No.05/2012
13
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 non-profligate 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 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
Constitution Petition No.05/2012
14
legal proceedings against him as it has been directed in
the case of above said parliamentarians.
21. The Election Commission of Pakistan is also directed to
examine the cases of the Parliamentarians and the members of
Provincial Assemblies, individually, by obtaining fresh declaration on
oath from all of them that they are not disqualified under Article
63(1)(c) of the Constitution.
22. The titled Constitution Petition is disposed of in the above
terms. However, the Criminal Original Petitions are adjourned to a
date in office.
Chief Justice
Judge
Judge
Announced on 20
th September, 2012
at Islamabad.
APPROVED FOR REPORTING
