Dual Citizenship Cases Raise Questions of Due Process

It seems the first wave of petitions alleging parliamentarians holding dual citizenship was just a testing of the waters, and having found a friendly Court, the floodgates are beginning to open. Media reports that more than 14 more lawmakers have been targeted in a new petition to the Supreme Court, with even more expected soon. I have written about substantive questions that are raised by the substance of the petitions as well as the political questions that arise from using a law added under a brutal military dictatorship to disqualify democratically-elected officials. Today, however, I want to explore some procedural questions raised by these petitions.

The first question is, what is required to bring such a case? When petitioners approach the Court claiming that a member of parliament is ineligible due to holding dual citizenship, what do they have to show for the Court to take their claim seriously? Is the mere suggestion by a barrister using flowery legal language sufficient to attract the Court’s attention? In the words of Newsweek editor David Frum, “Can you really stand up in front of a Pakistani tribunal and spout whatever fool nonsense pops into your head?”

In the case of MNA Farahnaz Ispahani, the petitioner may have presented as evidence media reports that a US State Department list included an asterisk next to her name, suggesting she was a US national. But is one punctuation mark sufficient to bring a case, or was the petitioner required to show more evidence backing his claim?

The case of Interior Minister Rehman Malik is even more interesting. What evidence was presented that the Minister was a British national? Bloggers at Cafe Pyala say that Malik was seen using a red passport recently, but later updated the post noting that cabinet members actually carry red – not green – Pakistani passports. Was a case brought on a mistake? The real question, though, is whether some proof is required beyond what someone claims to have seen. If someone tells the Court that they saw Chief Minister Sindh change his form into a cat, is the CM obliged to prove he is not a jinn?

That the Interior Minister did have British nationality at one point is irrelevant to the procedural question raised above, but it actually raises another more troubling question. In the case of Farahnaz Ispahani, media reports alleging her dual nationality are well known. But in the case of Rehman Malik, I don’t remember any media reports claiming to have found public documents suggesting his British citizenship. In that case, how did the petitioner come to know about it? If the petitioner has documentary evidence that some or all of the accused parliamentarians are dual citizens, where did he get these documents? Is it possible for private citizens to check the nationality of other private citizens in foreign countries? Could someone, for example, ask the UK to confirm or deny if Imran Khan is now or ever has been a UK national?

On Monday, The News published an image of a document from the petition that appears to include foreign passport numbers for certain lawmakers.

Image from The News - Alleged dual nationality holders

How did the petitioner get these alleged passport numbers? Has the Court asked this question?

These questions have nothing to do with whether or not dual citizens should be allowed to hold office. These are questions related to fundamental rights of due process and justice. Surely bringing a petition against anyone – regardless of whether they are a member of parliament or a chai wallah – should require more than just “standing up in front of a Pakistani tribunal and spouting whatever fool nonsense pops into your head”, and if documentary evidence is provided, surely the Court should ask where the documents came from. While the media is buzzing about whether or not this or that MNA has dual citizenship, the real question that should be asked is where this story came from in the first place.

Iftikhar Über Alles

By elections held last weekend were marred in the minds of the public by the unfortunate incident which took place in the competition for PS 53. I am writing, of course, of the infamous slap that was shown on TV in what seemed like an endless loop. This incident has already thrown the provincial seat into question as the accused Waheeda Shah evidently won the vote, but may lose the election based on her action as Election Commission Pakistan (ECP) is reviewing the incident. Of course, now not just the ECP but the Supreme Court too has taken notice! While no one denies that the incident should be properly investigated, it should be asked whether this is the proper use of the Supreme Court’s suo moto powers.

The infamous slap was not the only incident to take place. Who could have missed the footage of ANP supporters flouting the law with airial firing in Mardan that was broadcast all day?

Or what about the tragic crime in which PTI supporters of Shah Mehmood Qureshi fired at PPP workers and murdered poor Farhan Mughal in Multan?

While guns were brandished and arial firings used to intimidate voters – and in at least one case brutally murder a rival party supporter – the Chief Justice has taken notice of…a slap?

This raises two important questions. The first obvious question is why the Chief Justice takes notice of a slap while murders and firings go ignored?

Article 184(3) grants the Supreme Court suo moto powers to take notice of ‘a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II’. The Chief Justice has probably justified to himself by referring to Article 14 which protects ‘the dignity of man’.

But Chapter I of Part II of the Constitution also protects a right to education (Article 25A) and the right to profess, practise and propagate his religion (Article 20). Pakistan finds itself today facing a crisis on both fronts, where too many of our children are going without education, and our minorities are living in fear for their lives. Waheeda Shah’s slap may have insulted the dignity of one woman, but our failures in education and tolerance are insulting the dignity of over 1.5 crores. Why does the Chief Justice not take these issues as seriously?

And this is not the only issue. Chapter I of Part II also entitles every citizen to ‘a fair trial and due process’ (Article 10A). Why is the SC taking suo moto notice of an incident before it has the opportunity to go through due process? Waheeda Shah has already been called by District Returning Officer Ali Asghar Siyal to record her statement, and ECP has called the APO who suffered the slap to give her statement as well as DSP Tando Mohammad Khan Irfan Shah who was present at the time. ECP has also called Waheeda Shah on 6th March for hearing of the complaint against her actions.

Waheeda Shah’s action is a serious incident that should be investigated. The statements of those present should be taken and Waheeda Shah should be given the opportunity to explain herself also. She should not be judged before all the evidence is available, but she should not be given a free pass either. Whatever the ECP decides, then if it is not considered fair or just, it can be taken to court and work its way through the system.

This is the second problem. The incident took place on Saturday, and less than one week later already the Chief Justice is taking suo moto notice of the incident? For a justice who has repeatedly vowed to restore ‘rule of law’, he seems to forget that rule of law requires that due processes and procedures be allowed to run their proper course. The Supreme Court is not intended as the personal court of Iftikhar Chaudhry’s whims. It is the ‘Court of Last Resort’ – once all other institutions have judged an issue, if still it is not decided to the satisfaction of all parties, then they can appeal to the Supreme Court to hear their case.

Instead of using his suo moto powers in an arbitrary manner, the Chief Justice should observe proper restraint and allow due process and, indeed, the ‘rule of law’ to take its course. He should only take suo moto notice when there is no other option available – certainly not while other institutions are in the middle of proceedings on the same issue. Not only would this help to strengthen institutions, it would also give the Supreme Court the time necessary to actually close some of the cases it has already taken notice of. Pakistan needs a stronger rule of law. We do not need Iftikhar over all.