Case Commentary On Citizenship Registration Laws in Pakistan

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Issuance of passport-Refusal tantamounts to restrictions on ability to travel causing Adverse affects on citizen-Right to exit depends on ability to secure passport-Even if issue of passport is privilege conferred by Government and not right of citizen then refusal to confer privilege does result in adversely affecting a national -Exercise of power to grant or refuse issuance of passport is an exercise of public power such public power cannot be exercised arbitrarily to disadvantage of citizen in such context import of Art. 4(2) (b) of Constitution of Pakistan (1973) is to be considered-Public power to be exercised fairly and reasonably in consonance with objects of law under which it is granted-Rules of Naimal Justice not excluded expressly, would govern the exercise of public power refusing to grant privilege of passport. P L J 1981 Karachi 162

Grant of passport cannot be compared with grant of licence simpliciter in view of restrictive provisions of S. 3. P L J 1981 Karachi 162

Refusal of application for issuance of passport-Notice of refusal. not envisaged Appeal against refusal allowed by concerned Department and Rule of Natural Justice would be satisfied if petitioner avails opportunity to appeal-Writ petition against refusal, dismissed. P L J 1981 Karachi 162

Person having admittedly acquired citizenship of a foreign country was hit by Art.63(1)(c) of the Constitution of Pakistan and could not contest elections unless of course he removed such disqualification in terms of Rule 19 of the Pakistan Citizenship Rules, 1952. 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. 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. Person having admittedly acquired citizenship of a foreign country, was hit by the Article 63(1)(c) of the Constitution and could not contest elections unless, of course, he removed this disqualification in terms of Rule 19 of the Pakistan Citizenship Rules. 1952. PLJ 2005 SC 360

Declaration of intention to resume citizenship of Pakistan—Permissible dual nationality confining to the countries mentioned in S-14(3) of the Pakistan Citizenship Act, 1951 or which the Federal Government may notify—Validity—Power given in S. 14(3) of Pakistan Citizenship Act, 1951 is not uniform; if has been left out to the entire discretion of the Federal Government rather to its wisdom and caprice to decide whether to issue a notification specifying a country with whom dual nationality arrangement is permissible—Neither Pakistan Citizenship Act, 1951 nor the Rules thereunder provide any guideline and the provisions are not only arbitrary on the face of it but have been proved to be so on glance of the countries with whom nationality has been made permissible and those which have been left out—Effect of provisions of Ss.14 & 14-A, Pakistan Citizenship Act, 1951 is that the citizens of Pakistan can retain their citizenship provided the Municipal Law of the other country, nationality of which is sought, does not prohibit dual nationality—If, however, a Pakistani citizen voluntarily renounces his citizenship of origin to acquire a foreign nationality that is his choice but no one, who is a citizen of Pakistan under Pakistan Citizenship Act, 1951 can be made to loose his citizenship unless the acquisition of foreign citizenship makes it a condition precedent and he does so or his conduct falls within the mischief of S.16, Pakistan Citizenship Act, 1951— Intention of the Legislature is to facilitate the Pakistan citizens living abroad to retain their contact with Pakistan but the language of the said provisions reflects discrimination, arbitrariness and is not in accord with the intent of the law-makers—Act of the Federal Government in not notifying a country (U.S.A.) in terms of S.14(3) of the Pakistan Citizenship Act, 1951 and thereby depriving the Pakistani expatriates of equal protection of law is discriminatory, violative of Fundamental Rights and therefore, cannot be sustained—Section 14(3) of the Pakistan Citizenship Act, 1951, insofar as same vests in the Federal Government, in absence of any guideline, the power to notify the country where citizens of Pakistan could retain their citizenship of origin notwithstanding the acquisition of foreign citizenship amounts to excessive delegation and its exercise has led to discrimination between citizens of Pakistan living in one country and the other—High Court declared S.14(3) to be violative of Arts.4 & 25 of the Constitution of Pakistan and directed that orders passed and notification issued so far shall, however, be deemed to have been issued validly and shall remain intact—High Court observed that Federal Government may have power but the law must lay down guidelines i.e. parameter within, which Government may exercise its discretionary power to satisfy the considerations of due process and equality before law—Absence of such element tends to uncertainty and vagueness which are antithesis of the concept of Rule of law and citizens do not have to pay the price for such a dispensation—Pakistanis who have not renounced Pakistani citizenship shall continue to be the citizens of Pakistan and entitled to rights and liabilities accordingly—As regards Pakistani citizens who have renounced their citizenship of origin and would like to have the same resumed, law is not explicit—Facility of dual nationality is being extended to the Pakistani expatriates in U.S.A. for the first time, those Pakistanis who have renounced their original nationality under the impression that they had no option but to do that also deserve the benefit of the new deal by facilitation of resumption of the original citizenship—High Court, therefore, further directed that till such time the law and rules are suitably amended, R.19-B, Pakistani Citizenship Rules, 1952 shall be applicable mutatis mutandis and a declaration in Form Y prescribed under the said rule shall be sufficient proof of the intent of resumption of citizenship and the declarant shall be treated as a citizen of Pakistan—Principles. The power given in subsection (3) to section 14 of the Pakistan Citizenship Act is obviously not uniform. It has been left out to the entire discretion of the Federal Government rather to its whim and caprice to decide whether to issue a notification specifying a country with whom dual nationality arrangement is permissible. Neither the Act nor the Rules framed thereunder provide any guideline. These provisions are not only arbitrary on the face of it but have been proved to be so if one glances at the countries with whom the dual nationality has been made permissible and those which have been left out. A classification is permissible under Article 25 or the Constitution but it must be based on intelligible differentia which distinguishes persons grouped together from those, who are left out and it should have nexus with the object of the statute. Even a geographical distinction/classification is permissible provided it is based on the particular interest of the geographical areas which are distinct as compared to the remaining i.e. those areas which have been excluded. The right of citizenship is not an ordinary right. A study of the Constitution of Islamic Republic of Pakistan would indicate that certain rights have been granted to all ‘persons’ residing in the State while some rights are available to only ‘citizens’. For instance the right to be treated in accordance with law (Article 4), right of freedom of movement (Article 15), right of freedom of Assembly (Article 16), of freedom of Association (Article 17), of Trade (Article 18), of speech (Article 19) and to profess religion and of equality before law and equal protection of law (Article 25) are available to citizens alone. On the other hand right to life (Article 9), right to safeguard against illegal detention (Article 10) and of inviolability of dignity of man (Article 14) are available to all persons irrespective of their nationality or citizenship. The citizen under the Constitution enjoys a special status. The right to be a citizen is, therefore, a precious right. It is the most valuable right that an individual may have in a State. Citizenship is man’s basic right for it is nothing less than the right to have rights. Remove this priceless possession and there remains a stateless person, disgraced and degraded in the eyes of his countrymen. The loss of citizenship entails deprivation of the aforementioned rights and privileges. Any one who is deprived of this right would be ‘like some dishonoured stranger, he who is excluded, from the honours of the State is no better than an alien’. It was in recognition of the afore-referred basic right which persuaded the Legislature to remedy, the mischief of the statutory loss of nationality originally contemplated in the unamended section 14, and subsection (3) was added unfortunately whoever framed or drafted the amended provision did it in a slovenly manner and demonstrated want of care. The net result has been a language which reflects discrimination, arbitrariness and is not in accord with the intent of the law maker. But the Court has to ascertain the said intent while construing the statute. In order to ascertain the true meaning [of the Legislature] it is necessary to ascertain the circumstances with reference to which the words were used and what was the object appearing from those circumstances which the Legislature had in view. One of the fundamental principles of interpretation of statutes is the principle of equitable construction. It mandates that in construction of law both the purpose and the spirit of law should be kept in view. Since the intention of the Legislature constitutes the law of its enactments, it is the intention rather than the literal meaning of the statute which controls, or, as is generally said, the spirit of the statute will prevail over the strict letter. Consequently, cases which do not come within the strict letter of the statues, if within the spirit, will fall within the scope of the statute, and cases within the letter of the statute, if without its spirit, will not come within its operation. But this principle is not applicable if the statute is clear and unambiguous, so that there is no doubt concerning the legislative intent. Numerous factors may, however, raise such a doubt. It may be raised where a literal meaning leads to absurdity, contradiction, or any other effect which is contrary to the legislative objects of legislation. As a result, the Court may consider the spirit and reason of a statute where a literal meaning would lead to absurdity, contradiction, injustice, or would defeat the clear purpose of the law-makers. It may also be used where the statute is inaccurate in the use of words or phrases, or contains provisions inserted unintentionally. Even words may be modified, changed, rejected, or transposed by virtue of the application of this principle. The legislative intent that citizens of Pakistan were allowed to retain their original nationality notwithstanding the acquisition of citizenship in another country is manifest not only from the Parliamentary debate referred to in the preceding paragraphs, the reading of subsection (3) to section 14 of the Pakistan Citizenship Act, but also from the content of section 14-A as also from the comments submitted by the Ministry of Interior and the statement made by its official while appearing before the Court. A careful reading of section 14-A would indicate that a citizen of Pakistan living abroad was required to renounce Pakistani citizenship only in case it was a condition precedent for acquisition of citizenship of a foreign country concerned and not otherwise. Subsection (1)(b) to section 14-A provides that a citizen of Pakistan shall cease to be a citizen of Pakistan if he ‘has been given by the competent Authority of another country any valid document assuring him of the grant of the citizenship or nationality of that other country, upon renouncing his citizenship of Pakistan’. The effect of sections 14 and 14-A of the Act would be that the citizens of Pakistan can retain their citizenship provided the Municipal Law of the other country, nationality of which is sought, does not prohibit duel nationality. If a Pakistani citizen voluntarily renounces his citizenship of origin to acquire a foreign nationality that is his choice but no one, who is a citizen of Pakistan under the Act, can be made to loose his citizenship unless the acquisition of foreign citizenship makes it a condition precedent and he does so or his conduct falls within the mischief of section 16 of the Act. The act of the Federal Government in not notifying U.S.A. as a country in terms of section 14(3) of the Act and thereby depriving Pakistani expatriates of equal protection of law is discriminatory, violative of Fundamental Rights, and therefore, cannot be sustained. An executive action or inaction based on an incorrect premise could be made subject of judicial review. Judicial review would be justified in two situations: first, where the existence of a set of facts is a condition precedent to the exercise of a power, and second, when the decision-maker has taken into account as a fact something which is wrong or where he has misunderstood the facts upon which the decision depends. The lowers of High Court for enforcement of Fundamental Rights guaranteed under the Constitution arc wide and in terms of Article 199 of the Constitution it can pass any order which would be appropriate in the facts arid circumstances of a case. The expression ‘as may be appropriate for the enforcement of any of the fundamental rights’ appearing in Article 199(1)(c) in the Constitution confers upon the Constitutional Court a discretion to provide relief under the law to a citizen which may be necessary. Subsection (3) to section 14 of the Pakistan Citizenship Act, 1951, insofar as it vests in the Federal Government in absence of any guideline the power to notify the country where citizens of Pakistan could retain their citizenship of origin notwithstanding the acquisition of foreign citizenship amounts to excessive delegation and its exercise has led to discrimination between citizens (of Pakistan) living in one country and the other. This is violative of Articles 4 and 25 of the Constitution and it is so declared. All others passed and notifications issued so far shall, however, be deemed to have been issued validly and shall remain intact. The Federal Government may have power but the law must lay down broad guidelines i.e. parameter within which it may exercise, this discretionary power to satisfy the considerations of due process and equality before law. Absence of this element leads to uncertainty and vagueness which are antithesis of the concept of Rule of taw. The exclusion of the kind under consideration is the price that the citizens have to pay for such a dispensation. Those Pakistanis who have not renounced Pakistani Citizenship shall continue to be the citizens of Pakistan and entitled to rights and liabilities accordingly. However, for Pakistani citizens who have renounced their citizenship of origin and would like to have it resumed, the law is not explicit. The facility of dual nationality is being extended to the Pakistani expatriates in U.S.A. for the first time. Those who had renounced their original nationality under the impression that they had no option but to do that also deserve the benefit of this new deal by facilitation of resumption of the original citizenship. It is, therefore, directed that till such time the law and rules are suitably amended. Rule 19-B of me Pakistan Citizenship Rules, 1952 shall be applicable mutatis mutandis and a declaration in Form Y prescribed under the said rule shall be a sufficient proof of the intent of resumption of citizenship and the declarant shall be treated as a citizen of Pakistan, Perez v. Brownell (1958) 356 US 44, 64; Commentary on The Constitution of United Stated by Bernard Schwartz, p.714; Abrahams v. MacFisheries Ltd. (1925) 2 KB 18; Crawford, on Interpretation of Laws (Statutory Construction), S.178; Dual Citizenship and American National Identity by Stanely A. Renshon; Dual Nationality and the Meaning of Citizenship by Peter J. Spiro and Judicial Review of Administrative Action, 5th Edn., Chap. 13, p.561 ref. PLJ 2005 SC 360

 

Dual nationality—Declaration of intention to resume citizenship of Pakistan—Permissible dual nationality confining to the countries mentioned in S-14(3) of the Pakistan Citizenship Act, 1951 or which the Federal Government may notify—Validity—Power given in S. 14(3) of Pakistan Citizenship Act, 1951 is not uniform; if has been left out to the entire discretion of the Federal Government rather to its wisdom and caprice to decide whether to issue a notification specifying a country with whom dual nationality arrangement is permissible—Neither Pakistan Citizenship Act, 1951 nor the Rules thereunder provide any guideline and the provisions are not only arbitrary on the face of it but have been proved to be so on glance of the countries with whom nationality has been made permissible and those which have been left out—Effect of provisions of Ss.14 & 14-A, Pakistan Citizenship Act, 1951 is that the citizens of Pakistan can retain their citizenship provided the Municipal Law of the other country, nationality of which is sought, does not prohibit dual nationality—If, however, a Pakistani citizen voluntarily renounces his citizenship of origin to acquire a foreign nationality that is his choice but no one, who is a citizen of Pakistan under Pakistan Citizenship Act, 1951 can be made to loose his citizenship unless the acquisition of foreign citizenship makes it a condition precedent and he does so or his conduct falls within the mischief of S.16, Pakistan Citizenship Act, 1951— Intention of the Legislature is to facilitate the Pakistan citizens living abroad to retain their contact with Pakistan but the language of the said provisions reflects discrimination, arbitrariness and is not in accord with the intent of the law-makers—Act of the Federal Government in not notifying a country (U.S.A.) in terms of S.14(3) of the Pakistan Citizenship Act, 1951 and thereby depriving the Pakistani expatriates of equal protection of law is discriminatory, violative of Fundamental Rights and therefore, cannot be sustained—Section 14(3) of the Pakistan Citizenship Act, 1951, insofar as same vests in the Federal Government, in absence of any guideline, the power to notify the country where citizens of Pakistan could retain their citizenship of origin notwithstanding the acquisition of foreign citizenship amounts to excessive delegation and its exercise has led to discrimination between citizens of Pakistan living in one country and the other—High Court declared S.14(3) to be violative of Arts.4 & 25 of the Constitution of Pakistan and directed that orders passed and notification issued so far shall, however, be deemed to have been issued validly and shall remain intact—High Court observed that Federal Government may have power but the law must lay down guidelines i.e. parameter within, which Government may exercise its discretionary power to satisfy the considerations of due process and equality before law—Absence of such element tends to uncertainty and vagueness which are antithesis of the concept of Rule of law and citizens do not have to pay the price for such a dispensation—Pakistanis who have not renounced Pakistani citizenship shall continue to be the citizens of Pakistan and entitled to rights and liabilities accordingly—As regards Pakistani citizens who have renounced their citizenship of origin and would like to have the same resumed, law is not explicit—Facility of dual nationality is being extended to the Pakistani expatriates in U.S.A. for the first time, those Pakistanis who have renounced their original nationality under the impression that they had no option but to do that also deserve the benefit of the new deal by facilitation of resumption of the original citizenship—High Court, therefore, further directed that till such time the law and rules are suitably amended, R.19-B, Pakistani Citizenship Rules, 1952 shall be applicable mutatis mutandis and a declaration in Form Y prescribed under the said rule shall be sufficient proof of the intent of resumption of citizenship and the declarant shall be treated as a citizen of Pakistan—Principles. The power given in subsection (3) to section 14 of the Pakistan Citizenship Act is obviously not uniform. It has been left out to the entire discretion of the Federal Government rather to its whim and caprice to decide whether to issue a notification specifying a country with whom dual nationality arrangement is permissible. Neither the Act nor the Rules framed thereunder provide any guideline. These provisions are not only arbitrary on the face of it but have been proved to be so if one glances at the countries with whom the dual nationality has been made permissible and those which have been left out. A classification is permissible under Article 25 or the Constitution but it must be based on intelligible differentia which distinguishes persons grouped together from those, who are left out and it should have nexus with the object of the statute. Even a geographical distinction/classification is permissible provided it is based on the particular interest of the geographical areas which are distinct as compared to the remaining i.e. those areas which have been excluded. The right of citizenship is not an ordinary right. A study of the Constitution of Islamic Republic of Pakistan would indicate that certain rights have been granted to all ‘persons’ residing in the State while some rights are available to only ‘citizens’. For instance the right to be treated in accordance with law (Article 4), right of freedom of movement (Article 15), right of freedom of Assembly (Article 16), of freedom of Association (Article 17), of Trade (Article 18), of speech (Article 19) and to profess religion and of equality before law and equal protection of law (Article 25) are available to citizens alone. On the other hand right to life (Article 9), right to safeguard against illegal detention (Article 10) and of inviolability of dignity of man (Article 14) are available to all persons irrespective of their nationality or citizenship. The citizen under the Constitution enjoys a special status. The right to be a citizen is, therefore, a precious right. It is the most valuable right that an individual may have in a State. Citizenship is man’s basic right for it is nothing less than the right to have rights. Remove this priceless possession and there remains a stateless person, disgraced and degraded in the eyes of his countrymen. The loss of citizenship entails deprivation of the aforementioned rights and privileges. Any one who is deprived of this right would be ‘like some dishonoured stranger, he who is excluded, from the honours of the State is no better than an alien’. It was in recognition of the afore-referred basic right which persuaded the Legislature to remedy, the mischief of the statutory loss of nationality originally contemplated in the unamended section 14, and subsection (3) was added unfortunately whoever framed or drafted the amended provision did it in a slovenly manner and demonstrated want of care. The net result has been a language which reflects discrimination, arbitrariness and is not in accord with the intent of the law maker. But the Court has to ascertain the said intent while construing the statute. In order to ascertain the true meaning [of the Legislature] it is necessary to ascertain the circumstances with reference to which the words were used and what was the object appearing from those circumstances which the Legislature had in view. One of the fundamental principles of interpretation of statutes is the principle of equitable construction. It mandates that in construction of law both the purpose and the spirit of law should be kept in view. Since the intention of the Legislature constitutes the law of its enactments, it is the intention rather than the literal meaning of the statute which controls, or, as is generally said, the spirit of the statute will prevail over the strict letter. Consequently, cases which do not come within the strict letter of the statues, if within the spirit, will fall within the scope of the statute, and cases within the letter of the statute, if without its spirit, will not come within its operation. But this principle is not applicable if the statute is clear and unambiguous, so that there is no doubt concerning the legislative intent. Numerous factors may, however, raise such a doubt. It may be raised where a literal meaning leads to absurdity, contradiction, or any other effect which is contrary to the legislative objects of legislation. As a result, the Court may consider the spirit and reason of a statute where a literal meaning would lead to absurdity, contradiction, injustice, or would defeat the clear purpose of the law-makers. It may also be used where the statute is inaccurate in the use of words or phrases, or contains provisions inserted unintentionally. Even words may be modified, changed, rejected, or transposed by virtue of the application of this principle. The legislative intent that citizens of Pakistan were allowed to retain their original nationality notwithstanding the acquisition of citizenship in another country is manifest not only from the Parliamentary debate referred to in the preceding paragraphs, the reading of subsection (3) to section 14 of the Pakistan Citizenship Act, but also from the content of section 14-A as also from the comments submitted by the Ministry of Interior and the statement made by its official while appearing before the Court. A careful reading of section 14-A would indicate that a citizen of Pakistan living abroad was required to renounce Pakistani citizenship only in case it was a condition precedent for acquisition of citizenship of a foreign country concerned and not otherwise. Subsection (1)(b) to section 14-A provides that a citizen of Pakistan shall cease to be a citizen of Pakistan if he ‘has been given by the competent Authority of another country any valid document assuring him of the grant of the citizenship or nationality of that other country, upon renouncing his citizenship of Pakistan’. The effect of sections 14 and 14-A of the Act would be that the citizens of Pakistan can retain their citizenship provided the Municipal Law of the other country, nationality of which is sought, does not prohibit duel nationality. If a Pakistani citizen voluntarily renounces his citizenship of origin to acquire a foreign nationality that is his choice but no one, who is a citizen of Pakistan under the Act, can be made to loose his citizenship unless the acquisition of foreign citizenship makes it a condition precedent and he does so or his conduct falls within the mischief of section 16 of the Act. The act of the Federal Government in not notifying U.S.A. as a country in terms of section 14(3) of the Act and thereby depriving Pakistani expatriates of equal protection of law is discriminatory, violative of Fundamental Rights, and therefore, cannot be sustained. An executive action or inaction based on an incorrect premise could be made subject of judicial review. Judicial review would be justified in two situations: first, where the existence of a set of facts is a condition precedent to the exercise of a power, and second, when the decision-maker has taken into account as a fact something which is wrong or where he has misunderstood the facts upon which the decision depends. The views of the High Court for enforcement of Fundamental Rights guaranteed under the Constitution are wide and in terms of Article 199 of the Constitution it can pass any order which would be appropriate in the facts arid circumstances of a case. The expression ‘as may be appropriate for the enforcement of any of the fundamental rights’ appearing in Article 199(1)(c) in the Constitution confers upon the Constitutional Court a discretion to provide relief under the law to a citizen which may be necessary. Subsection (3) to section 14 of the Pakistan Citizenship Act, 1951, insofar as it vests in the Federal Government in absence of any guideline the power to notify the country where citizens of Pakistan could retain their citizenship of origin notwithstanding the acquisition of foreign citizenship amounts to excessive delegation and its exercise has led to discrimination between citizens (of Pakistan) living in one country and the other. This is violative of Articles 4 and 25 of the Constitution and it is so declared. All others passed and notifications issued so far shall, however, be deemed to have been issued validly and shall remain intact. The Federal Government may have power but the law must lay down broad guidelines i.e. parameter within which it may exercise, this discretionary power to satisfy the considerations of due process and equality before law. Absence of this element leads to uncertainty and vagueness which are antithesis of the concept of Rule of taw. The exclusion of the kind under consideration is the price that the citizens have to pay for such a dispensation. Those Pakistanis who have not renounced Pakistani Citizenship shall continue to be the citizens of Pakistan and entitled to rights and liabilities accordingly. However, for Pakistani citizens who have renounced their citizenship of origin and would like to have it resumed, the law is not explicit. The facility of dual nationality is being extended to the Pakistani expatriates in U.S.A. for the first time. Those who had renounced their original nationality under the impression that they had no option but to do that also deserve the benefit of this new deal by facilitation of resumption of the original citizenship. It is, therefore, directed that till such time the law and rules are suitably amended. Rule 19-B of me Pakistan Citizenship Rules, 1952 shall be applicable mutatis mutandis and a declaration in Form Y prescribed under the said rule shall be a sufficient proof of the intent of resumption of citizenship and the declarant shall be treated as a citizen of Pakistan, Perez v. Brownell (1958) 356 US 44, 64; Commentary on The Constitution of United Stated by Bernard Schwartz, p.714; Abrahams v. MacFisheries Ltd. (1925) 2 KB 18; Crawford, on Interpretation of Laws (Statutory Construction), S.178; Dual Citizenship and American National Identity by Stanely A. Renshon; Dual Nationality and the Meaning of Citizenship by Peter J. Spiro and Judicial Review of Administrative Action, 5th Edn., Chap. 13, p.561 ref PLJ 2005 SC 360

 

Dual nationality—Disqualification to contest election of Parliament in Pakistan—Person having admittedly acquired citizenship of a foreign country was hit by Art.63(1)(c) of the Constitution of Pakistan and could not contest elections unless of course he removed such disqualification in terms of Rule 19 of the Pakistan Citizenship Rules, 1952. 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. 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. Person having admittedly acquired citizenship of a foreign country, was hit by the Article 63(1)(c) of the Constitution and could not contest elections unless, of course, he removed this disqualification in terms of Rule 19 of the Pakistan Citizenship Rules. 1952. PLJ 2005 SC 360

 

 

Cancellation of domicile certificate:– Certificate availed for admission Engineering College :– Subsequently withdrawal from roll of Engineering College and admission in Medical College:– Contention that matter qua certificate was not a live, issue, held. not tenable and District Magistrate had jurisdiction to cancel domicile certificate. PLJ 1980 S.C. 300

Analysis of provision:– Domicile and permanent residence are two distinct and separate concepts although a person has to show that he was living in Pakistan with intention of permanent residence before grant of domicile certificate:– Domicile certificate denotes domicile of Pakistan and not of any part thereof :– Fact that applicant for domicile certification had lived in Pakistan with intention to reside permanently can become basis for persuasion for grant of certificate-Citizen of Pakistan by birth is essentially a domicile of Pakistan unless said domicile is lost by acquiring another domicile. PLJ 1980 S.C. 300

Citizenship is the most valuable right that an individual may have in a State—Due process and equality before law—Classification—Judicial review—Scope—Dual nationality—Declaration of intention to resume citizenship of Pakistan—Permissible dual nationality confining to the countries mentioned in S-14(3) of the Pakistan Citizenship Act, 1951 or which the Federal Government may notify—Validity—Power given in S. 14(3) of Pakistan Citizenship Act, 1951 is not uniform; if has been left out to the entire discretion of the Federal Government rather to its wisdom and caprice to decide whether to issue a notification specifying a country with whom dual nationality arrangement is permissible—Neither Pakistan Citizenship Act, 1951 nor the Rules thereunder provide any guideline and the provisions are not only arbitrary on the face of it but have been proved to be so on glance of the countries with whom nationality has been made permissible and those which have been left out—Effect of provisions of Ss.14 & 14-A, Pakistan Citizenship Act, 1951 is that the citizens of Pakistan can retain their citizenship provided the Municipal Law of the other country, nationality of which is sought, does not prohibit dual nationality—If, however, a Pakistani citizen voluntarily renounces his citizenship of origin to acquire a foreign nationality that is his choice but no one, who is a citizen of Pakistan under Pakistan Citizenship Act, 1951 can be made to loose his citizenship unless the acquisition of foreign citizenship makes it a condition precedent and he does so or his conduct falls within the mischief of S.16, Pakistan Citizenship Act, 1951— Intention of the Legislature is to facilitate the Pakistan citizens living abroad to retain their contact with Pakistan but the language of the said provisions reflects discrimination, arbitrariness and is not in accord with the intent of the law-makers—Act of the Federal Government in not notifying a country (U.S.A.) in terms of S.14(3) of the Pakistan Citizenship Act, 1951 and thereby depriving the Pakistani expatriates of equal protection of law is discriminatory, violative of Fundamental Rights and therefore, cannot be sustained—Section 14(3) of the Pakistan Citizenship Act, 1951, insofar as same vests in the Federal Government, in absence of any guideline, the power to notify the country where citizens of Pakistan could retain their citizenship of origin notwithstanding the acquisition of foreign citizenship amounts to excessive delegation and its exercise has led to discrimination between citizens of Pakistan living in one country and the other—High Court declared S.14(3) to be violative of Arts.4 & 25 of the Constitution of Pakistan and directed that orders passed and notification issued so far shall, however, be deemed to have been issued validly and shall remain intact—High Court observed that Federal Government may have power but the law must lay down guidelines i.e. parameter within, which Government may exercise its discretionary power to satisfy the considerations of due process and equality before law—Absence of such element tends to uncertainty and vagueness which are antithesis of the concept of Rule of law and citizens do not have to pay the price for such a dispensation—Pakistanis who have not renounced Pakistani citizenship shall continue to be the citizens of Pakistan and entitled to rights and liabilities accordingly—As regards Pakistani citizens who have renounced their citizenship of origin and would like to have the same resumed, law is not explicit—Facility of dual nationality is being extended to the Pakistani expatriates in U.S.A. for the first time, those Pakistanis who have renounced their original nationality under the impression that they had no option but to do that also deserve the benefit of the new deal by facilitation of resumption of the original citizenship—High Court, therefore, further directed that till such time the law and rules are suitably amended, R.19-B, Pakistani Citizenship Rules, 1952 shall be applicable mutatis mutandis and a declaration in Form Y prescribed under the said rule shall be sufficient proof of the intent of resumption of citizenship and the declarant shall be treated as a citizen of Pakistan—Principles. The power given in subsection (3) to section 14 of the Pakistan Citizenship Act is obviously not uniform. It has been left out to the entire discretion of the Federal Government rather to its whim and caprice to decide whether to issue a notification specifying a country with whom dual nationality arrangement is permissible. Neither the Act nor the Rules framed thereunder provide any guideline. These provisions are not only arbitrary on the face of it but have been proved to be so if one glances at the countries with whom the dual nationality has been made permissible and those which have been left out. A classification is permissible under Article 25 or the Constitution but it must be based on intelligible differentia which distinguishes persons grouped together from those, who are left out and it should have nexus with the object of the statute. Even a geographical distinction/classification is permissible provided it is based on the particular interest of the geographical areas which are distinct as compared to the remaining i.e. those areas which have been excluded. The right of citizenship is not an ordinary right. A study of the Constitution of Islamic Republic of Pakistan would indicate that certain rights have been granted to all ‘persons’ residing in the State while some rights are available to only ‘citizens’. For instance the right to be treated in accordance with law (Article 4), right of freedom of movement (Article 15), right of freedom of Assembly (Article 16), of freedom of Association (Article 17), of Trade (Article 18), of speech (Article 19) and to profess religion and of equality before law and equal protection of law (Article 25) are available to citizens alone. On the other hand right to life (Article 9), right to safeguard against illegal detention (Article 10) and of inviolability of dignity of man (Article 14) are available to all persons irrespective of their nationality or citizenship. The citizen under the Constitution enjoys a special status. The right to be a citizen is, therefore, a precious right. It is the most valuable right that an individual may have in a State. Citizenship is man’s basic right for it is nothing less than the right to have rights. Remove this priceless possession and there remains a stateless person, disgraced and degraded in the eyes of his countrymen. The loss of citizenship entails deprivation of the aforementioned rights and privileges. Any one who is deprived of this right would be ‘like some dishonoured stranger, he who is excluded, from the honours of the State is no better than an alien’. It was in recognition of the afore-referred basic right which persuaded the Legislature to remedy, the mischief of the statutory loss of nationality originally contemplated in the unamended section 14, and subsection (3) was added unfortunately whoever framed or drafted the amended provision did it in a slovenly manner and demonstrated want of care. The net result has been a language which reflects discrimination, arbitrariness and is not in accord with the intent of the law maker. But the Court has to ascertain the said intent while construing the statute. In order to ascertain the true meaning [of the Legislature] it is necessary to ascertain the circumstances with reference to which the words were used and what was the object appearing from those circumstances which the Legislature had in view. One of the fundamental principles of interpretation of statutes is the principle of equitable construction. It mandates that in construction of law both the purpose and the spirit of law should be kept in view. Since the intention of the Legislature constitutes the law of its enactments, it is the intention rather than the literal meaning of the statute which controls, or, as is generally said, the spirit of the statute will prevail over the strict letter. Consequently, cases which do not come within the strict letter of the statues, if within the spirit, will fall within the scope of the statute, and cases within the letter of the statute, if without its spirit, will not come within its operation. But this principle is not applicable if the statute is clear and unambiguous, so that there is no doubt concerning the legislative intent. Numerous factors may, however, raise such a doubt. It may be raised where a literal meaning leads to absurdity, contradiction, or any other effect which is contrary to the legislative objects of legislation. As a result, the Court may consider the spirit and reason of a statute where a literal meaning would lead to absurdity, contradiction, injustice, or would defeat the clear purpose of the law-makers. It may also be used where the statute is inaccurate in the use of words or phrases, or contains provisions inserted unintentionally. Even words may be modified, changed, rejected, or transposed by virtue of the application of this principle. The legislative intent that citizens of Pakistan were allowed to retain their original nationality notwithstanding the acquisition of citizenship in another country is manifest not only from the Parliamentary debate referred to in the preceding paragraphs, the reading of subsection (3) to section 14 of the Pakistan Citizenship Act, but also from the content of section 14-A as also from the comments submitted by the Ministry of Interior and the statement made by its official while appearing before the Court. A careful reading of section 14-A would indicate that a citizen of Pakistan living abroad was required to renounce Pakistani citizenship only in case it was a condition precedent for acquisition of citizenship of a foreign country concerned and not otherwise. Subsection (1)(b) to section 14-A provides that a citizen of Pakistan shall cease to be a citizen of Pakistan if he ‘has been given by the competent Authority of another country any valid document assuring him of the grant of the citizenship or nationality of that other country, upon renouncing his citizenship of Pakistan’. The effect of sections 14 and 14-A of the Act would be that the citizens of Pakistan can retain their citizenship provided the Municipal Law of the other country, nationality of which is sought, does not prohibit duel nationality. If a Pakistani citizen voluntarily renounces his citizenship of origin to acquire a foreign nationality that is his choice but no one, who is a citizen of Pakistan under the Act, can be made to loose his citizenship unless the acquisition of foreign citizenship makes it a condition precedent and he does so or his conduct falls within the mischief of section 16 of the Act. The act of the Federal Government in not notifying U.S.A. as a country in terms of section 14(3) of the Act and thereby depriving Pakistani expatriates of equal protection of law is discriminatory, violative of Fundamental Rights, and therefore, cannot be sustained. An executive action or inaction based on an incorrect premise could be made subject of judicial review. Judicial review would be justified in two situations: first, where the existence of a set of facts is a condition precedent to the exercise of a power, and second, when the decision-maker has taken into account as a fact something which is wrong or where he has misunderstood the facts upon which the decision depends. The lowers of High Court for enforcement of Fundamental Rights guaranteed under the Constitution arc wide and in terms of Article 199 of the Constitution it can pass any order which would be appropriate in the facts arid circumstances of a case. The expression ‘as may be appropriate for the enforcement of any of the fundamental rights’ appearing in Article 199(1)(c) in the Constitution confers upon the Constitutional Court a discretion to provide relief under the law to a citizen which may be necessary. Subsection (3) to section 14 of the Pakistan Citizenship Act, 1951, insofar as it vests in the Federal Government in absence of any guideline the power to notify the country where citizens of Pakistan could retain their citizenship of origin notwithstanding the acquisition of foreign citizenship amounts to excessive delegation and its exercise has led to discrimination between citizens (of Pakistan) living in one country and the other. This is violative of Articles 4 and 25 of the Constitution and it is so declared. All others passed and notifications issued so far shall, however, be deemed to have been issued validly and shall remain intact. The Federal Government may have power but the law must lay down broad guidelines i.e. parameter within which it may exercise, this discretionary power to satisfy the considerations of due process and equality before law. Absence of this element leads to uncertainty and vagueness which are antithesis of the concept of Rule of taw. The exclusion of the kind under consideration is the price that the citizens have to pay for such a dispensation. Those Pakistanis who have not renounced Pakistani Citizenship shall continue to be the citizens of Pakistan and entitled to rights and liabilities accordingly. However, for Pakistani citizens who have renounced their citizenship of origin and would like to have it resumed, the law is not explicit. The facility of dual nationality is being extended to the Pakistani expatriates in U.S.A. for the first time. Those who had renounced their original nationality under the impression that they had no option but to do that also deserve the benefit of this new deal by facilitation of resumption of the original citizenship. It is, therefore, directed that till such time the law and rules are suitably amended. Rule 19-B of me Pakistan Citizenship Rules, 1952 shall be applicable mutatis mutandis and a declaration in Form Y prescribed under the said rule shall be a sufficient proof of the intent of resumption of citizenship and the declarant shall be treated as a citizen of Pakistan, Perez v. Brownell (1958) 356 US 44, 64; Commentary on The Constitution of United Stated by Bernard Schwartz, p.714; Abrahams v. MacFisheries Ltd. (1925) 2 KB 18; Crawford, on Interpretation of Laws (Statutory Construction), S.178; Dual Citizenship and American National Identity by Stanely A. Renshon; Dual Nationality and the Meaning of Citizenship by Peter J. Spiro and Judicial Review of Administrative Action, 5th Edn., Chap. 13, p.561 ref. PLJ 2005 SC 360

Expression “and has acquired a domicile therein”:– Word, ‘domicile’ not defined in the Act:– Meanings of word, domicile”, according to Private International Law, narrated. PLJ 1980 S.C. 300

 

Domicile and permanent residence are two distinct and separate concepts although a person has to show that he was living in Pakistan with intention of permanent residence before grant of domicile certificate:– Domicile certificate denotes domicile of Pakistan and not of any part thereof :– Fact that applicant for domicile certification had lived in Pakistan with intention to reside permanently can become basis for persuasion for grant of certificate-Citizen of Pakistan by birth is essentially a domicile of Pakistan unless said domicile is lost by acquiring another domicile. PLJ 1980 S.C. 300

Cancellation of domicile certificate:– Certificate availed for admission Engineering College :– Subsequently withdrawal from roll of Engineering College and admission in Medical College:– Contention that matter qua certificate was not a live, issue, held. not tenable and District Magistrate had jurisdiction to cancel domicile certificate. PLJ 1980 S.C. 300

 

The Pakistan Citizenship Act Preamble—Overview of the Pakistan Citizenship Act, 1951. The Pakistan Citizenship Act is a small Act consisting of 23 sections (promulgated on 13th April, 1951). Some of the important provisions of the Act are i.e. section 3 which stipulates as to who would be citizen of Pakistan at the commencement of the Act, 4 relates to citizenship by birth, 5 takes to citizenship by descent, 6 talks of citizenship by migration, 7 excludes those persons migrated from Pakistan in 1947 from the ambit of citizenship, section 8 makes a special provision for rights of citizenship of certain persons residing abroad to be registered as citizens of Pakistan in circumstances mentioned therein. Section 9 provides for citizenship by naturalization, 14 originally did not permit dual nationality but it was subsequently amended by adding subsection which made dual nationality permissible for Pakistani citizens residing in certain countries, section 14-A provided for renouncement of Pakistani citizenship by a citizen residing abroad if the same is required for his acquisition of a foreign citizenship, section 16 enumerates situations wherein a citizen of Pakistan can be deprived of his citizenship, 20 makes a provision for acquisition of Pakistani citizenship by common wealth countries and section 23 enables the Federal Government to frame rules for carrying into effect the provision of this Act. PLJ 2005 SC 360

 

Section 3(d) of the Citizenship Act, 1951 also stipulates that any person who before 13.4.1951 migrated to Pakistan from the sub-continent would be a Pakistani as good as one who was born in the territories that came to constitute Pakistan after 14.8.1947

Cancellation of domicile certificate:– Certificate availed for admission Engineering College :– Subsequently withdrawal from roll of Engineering College and admission in Medical College:– Contention that matter qua certificate was not a live, issue, held. not tenable and District Magistrate had jurisdiction to cancel domicile certificate. PLJ 1980 S.C. 300

 

Domicile by birth:– Person born in any part of Pakistan and not losing domicile of his origin subsequently, deemed to be domicile of Pakistan by birth. PLJ 1980 S.C. 300

Issuance of National Identity Card–Petitioner claiming to be a citizen of Pakistan while in fact, he was Afghan Refugee–Petitioner claimed that be and his father have been living in Pakistan since long and intend to stay in Pakistan therefore, they have become Citizens of Pakistan–Entitlement–Long stay of a foreigner in Foreign Country would not automatically convert him to be citizen of that country unless he acquires nationality by process of law–Afghan Refugees having been provided refugee in Pakistan temporarily and they being not Citizens of Pakistan were governed by Foreigners Act, 1946, and not by provisions of Pakistan Citizenship Act, 1951 which was not applicable to them–Any person who being not Citizen of Pakistan, if obtains National Identity Card on furnishing false information and/or contrivance, any other provision of Citizenship Act or rules and the person who attests or certifies such statement could be punished under National Registration Act 1973–Petitioner was neither citizen nor deemed to be Citizen of Pakistan, therefore, he was not entitled to the issuance of National Identity Card. PLJ 1999 Peshawar 46

 

Petitioner claiming to be a citizen of Pakistan while in fact, he was Afghan Refugee–Petitioner claimed that be and his father have been living in Pakistan since long and intend to stay in Pakistan therefore, they have become Citizens of Pakistan–Entitlement–Long stay of a foreigner in Foreign Country would not automatically convert him to be citizen of that country unless he acquires nationality by process of law–Afghan Refugees having been provided refugee in Pakistan temporarily and they being not Citizens of Pakistan were governed by Foreigners Act, 1946, and not by provisions of Pakistan Citizenship Act, 1951 which was not applicable to them–Any person who being not Citizen of Pakistan, if obtains National Identity Card on furnishing false information and/or contravence, any other provision of Citizenship Act or rules and the person who attests or certifies such statement could be punished under National Registration Act 1973–Petitioner was neither citizen nor deemed to be Citizen of Pakistan, therefore, he was not entitled to the issuance of National Identity Card. PLJ 1999 Peshawar 46

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