Dual nationality: a conflict of interest for bureaucrats?

In 2012, the Supreme Court, while disqualifying parliamentarians who held dual nationality, said that it did not doubt the patriotism of Pakistani citizens holding dual nationality and that the case was simply related to enforcement of Article 63(1)(c) of the constitution. The said article prohibits parliamentarians from holding dual nationality. The debate has gone a step further now. The Supreme Court of Pakistan as well as the Islamabad High Court are inquiring into how many people in different branches of bureaucracy hold dual nationality.

The general rule under Pakistani law is that no Pakistani can hold the additional nationality of any state except those notified by the federal government. Currently, 19 states feature on that list. Under the 1956 and 1962 constitutions, there was no law envisaging dual nationality. But in 1972 an exception was crafted by amending Section 14(3) of the Pakistan Citizenship Act, 1951.

Should there be a bar on dual nationals from serving in senior positions in bureaucracy? The law prescribes none. In the case of parliamentarians, there was an express bar prescribed by the constitution. And public notices about recruitment to the armed forces make it clear that you are ineligible to be selected if you are a dual national. That much is fair. However, if a new bar for bureaucracy is created in ongoing cases it will have to be judicially invented. The logic will at least partly hinge on some notion of a conflict of interest. Would the judiciary’s crafting of a bar where legislature has not prescribed one be fair? This writer answers this question in the negative.

Strengthening disclosure requirements would make sense — creating an absolute bar would not. And if disclosure requirements have to come in, these should be prescribed by Parliament and not the courts. Even Parliament should desist from imposing a bar, mostly because the bar will be inefficacious and unduly ostracise a segment of the population. A suitable compromise could be to instill disclosure requirements for clearly identified sensitive positions.

Doubting a citizen’s ability to fairly answer her call of duty only because that individual holds a passport of another state – as allowed at present by the law of the land – would be deeply unfair. Obtaining a second nationality is not always a conviction-driven decision for everyone; it is one often driven by economics and convenience — of educating kids and freedom to travel. If the law of the land allows it, then it should not be held against those who have committed a significant portion of their lives to serving the public and state. Summoning lists of individuals who are acting completely within the bounds of the law, as it stands, has already in many ways cast dual nationals in an unfair light. Of course, there may be instances where the due disclosures required by relevant service regulations (or even tax laws) were not made; those making false declarations should be held accountable. But a blanket rule targeting bureaucrats or any other group of public servants, unless appropriately tailored by Parliament, would raise troubling questions.

At what point does it become legitimate to become suspicious of someone’s commitment to their country? When they hold a particular office? If so, what office and how senior? How do we distinguish this from businessmen who make investments in important segments of the economy and then own, run or shape banks, large companies, etc?

One’s position on this issue is bound to be shaped by the view one takes of nationalism, whether it is a threatened, ever-shrinking circle that must be closely guarded or one which is open, trusts people to make decisions and requires no interference from state institutions until one crosses a clearly articulated line.
The bureaucrats in Pakistan who, by virtue of birth or later acquisition, procured nationality of a country other than Pakistan have violated no law. Unless they made any false declarations, their commitment to this country should not be questioned. Taking ownership as a Pakistani should not be predicated on disowning other life choices one has made.

The writer is a Lahore-based lawyer.

This was originally published in the April 2018 issue of the Herald. To read more subscribe to the Herald in print.