Thursday, September 20, 2012

Supreme Court Decision in Dual Nationality Case


Supreme Court Decision in Dual Nationality Case


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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

‏Photo: سپريم کورٹ نے دہري شہريت کے حال اراکين پارليمنٹ کو نا اہل قرار دے ديا ہے ? کيس کي سماعت چيف جسٹس کي سربراہي ميں تين رکني بينچ نے کي-عدالتي فيصلے ميں کہا گيا کہ رحمان ملک نے غلط بياني کي، وہ صادق امين نہيں رہے، آئين کے تحت صادق اور امين ہونا لازمي شرط ہے، رحمان ملک نے 2008 ميں ڈيکلريشن دينے ميں غلط بياني کي? عدالتي فيصلے ميں کہا گيا کہ نااہل ارکان سے 2 ہفتوں ميں تمام مالي فوائداورمراعات واپس لي جائيں اور اليکشن کميشن اراکين اسمبلي سے دوبارہ حلف لے کہ انکے پاس دہري شہريت نہيں ہے?فيصلے ميں کہا گيا کہ ارکان پارليمنٹ کو اليکشن سے قبل آرٹيکل 62 اور 63 کا حلف دينا ہوتا ہے، اس حلف ميں کہنا ہوتا ہے کہ وہ اليکشن لڑنے کيلئے اہل ہے اور حلف ميں غلط بياني کرنيوالے کيخلاف تعزيرات پاکستان کے تحت کارروائي ہوگي? عدالتي آرڈر ميں کہا گيا کہ نااہل ارکان اسمبلي کا معاملہ براہ راست اليکشن کميشن کو بھيجا جائيگا- سپريم کورٹ کے اس فيصلے کي روشني ميں ايم پي ايز محمد اخلاق اشرف چوہان، ناديہ گبول، وسيم قادر، نديم خادم، آمنہ بٹر اور ايم اين ايز زاہد اقبال، فرح ناز، فرحت محمود، جميل ملک نااہل قرار پائے ہيں?‏

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








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