P L D 2002 Lahore 521 (PLP)

INDIA BULGARIA JORDON JORDAN IRAN BURKINA FASO LATVIA LEBANON JAPAN COMBODIA LEBANON MALTA KENYA CANADA LESOTHO NETHERLANDS KIRIBATI CAPE VERDE LIECHTENSETIN NEW ZZEALAND KOREA NORTHERN PORTUGAL PORTUGAL LATVIA IRELAND ROMANIA SOUTH AFRICA? LITHUANIA PANAMA RUSSIA SPAIN MALAYSIA PARAGUAY SAINT KITTS SWITZERLAND MAURITUS PERU AND NEVIS SYRIA MAXICO PITCAIRN SAINT VINCENT TONGA PAKISTAN PHILIPPINES SERBIA(YUGO?SLAVIA) TURKEY PAPUA NEW GUINEA POLAND SLOVENIA TONGA PERU SOUTH AFRICA UNITED KINGDOM PHILIPPINES SRI LANKA UNITED STATES POLAND WESTERN SAMOA ROMANIA SINGAPORE SOLOMON ISLANDS SWEDEN THAILAND VIETNAM As per Stanely Renshon, the number of county' where dual rationality has been made permissible is now 93.

16. Propositions No.(ii), with regard to the vires of subsection (3) of section 14 of the Pakistan Citizenship Act, No.(iii) with regard to the act of the Federal Government in confining dual nationality arrangement to thirteen countries only and No.(iv) as to whether a Pakistani citizen by birth who acquires US nationality subsequently can be deprived of his nationality, are inter‑related and they are being discussed and commented upon accordingly.

17. Part II, Chapter I of the Constitution of Islamic Republic of Pakistan 1973 relates to the Fundamental Rights. Article 25(1) inter alia mandates as under:‑‑ "(1) All citizens are equal before law and are entitled to equal protection of law." The concept embodied in this Article is analogous to `Article 7 of the Universal Declaration of Human Rights which stipulates that "all persons are equal before the law and are entitled without any discrimination to the equal protection of law". Article 20 of the Convenant of Human Rights 1950 conveys the same message and this right is reflected in Fourteenth Amendment in US Constitution and Article 14 of the Indian Constitution.

18. This widely accepted principle propounds that among equals the law should be equal, that it should be administered equally and that all like f should be treated alike. The concepts "equality before law" and "equal protection before law" appear to be synonymous terms but it would be an over simplification. The former is a negative concept whereas the latter conveys a positive connotation. One discourages and negates all special privileges to any citizen or class and subjects them to ordinary law of the land. The other declares that all citizens must have equal protection if placed in the same circumstance and situation. The importance of this equality provision of the U.S. Constitution is highlighted in Corpus Juris Secundum, Volume 16‑A Article 502) which reads as under:‑‑ "Equal protection to all is the basic principle on which rests justice under the law. By virtue of a clause in the Fourteenth Amendment of the Constitution of the United States expressly forbidding it to do so, State may not a deny to any person within its jurisdiction the equal protection of the laws. This clause is a pledge of equal protection of laws or protection of equal laws; and it means, and is guaranty, that all persons subjected to state legislation shall be treated alike, under like circumstances and conditions, both in privileges conferred and in liabilities imposed; but it guarantees only the protection enjoyed by other persons or classes in the same place and under like circumstances, in pursuit of their lawful occupation, and it is not a guaranty of equality of operation or application of State legislation on all citizens of a State". In Ram Krishna Dalmia v. Justice Tendolkar (AIR 1958 SC 538), the Indian Supreme Court was called upon to comment on the validity of a certain statutory provision with reference to Article 14 of the Constitution of India and after an exhaustive survey of the precedent case‑law on the point in issue it observed as under:‑? "A statute may not make any classification of the persons or things for the purpose of applying its provisions but may leave it to the discretion of the Government to select and classify persons or things to whom its provisions are to apply. In determining the question of or otherwise of such a statute the Court will not strike down the law out of hand only because no classification appears on its face or because a discretion is given to the Government to make' the selection or classification but will go on to examine and ascertain if the statute has laid down any principle or policy for the guidance of the exercise of discretion by the Government in the matter of the selection or classification. After such scrutiny the Court will strike down the statute if it does not lay down any principle or policy for guiding the exercise of discretion by the Government in the matter of selection of classification, on the ground that the statute provides for the delegation of arbitrary and uncontrolled power to the Government so as to enable it to discriminate between persons or things similarly situate and that, therefore, the discrimination is inherent in the statute itself. In such a case the Court will strike down both the law as well as the executive action taken under such law." In Miss Benazir Bhutto v. Federation of Pakistan and another (PL 1988 Supreme Court 416), the vires of the various provisions of the Political Parties Act were challenged before the august Supreme Court and it held that under Article 199 of the Constitution, the High Court while enforcing the fundamental rights can declare a law to be void if it is inconsistent with the fundamental rights guarantees by the Constitution. In Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 Supreme Court 1445) various provisions of special law i.e. the Anti‑Terrorism Act, 1997 were challenged. The august Supreme Court rendered a rather instructive judgment which inter alia dilated on the ambit of Article 25 of the Constitution and held that only reasonable classification is permissible under this provision parameters of which were reiterated as under:‑‑ "(i) That equal protection of law does not envisage that every citizen is treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike; (ii) that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis; (iii) that different laws can validly be enacted for different sexes, persons of different age groups, persons having different financial standard and persons accused of heinous crimes; (iv) that no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable classification in the other set of circumstances; (v) that a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25; (vi) that in order to make a classification reasonable, it should be based‑‑ (a) on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out; (b) that the differentia must have rationale nexus to the object sought to be achieved by such classification."

19. Before examining the vires of the impugned provisions a brief over view of the Pakistan Citizenship Act would be in order. It 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 talks 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 oil 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 commonwealth countries and .section 23 enables the Federal Government to frame rules for carrying into effect the provision of this Act. The provisions of the Act relevant for the points in issue, are as under: "

14. Dual citizenship or nationality not permitted.‑(1) Subject to the provisions of this section if any person is a citizen of Pakistan under the provisions of this Act, and is at the same time a citizen or national of any other country, he shall, unless within one year of the commencement of this Act or within six months of attaining twenty‑one years of his age, whichever is later, he makes a declaration according to the laws of that other country renouncing his status as citizen or national thereof, case to be a citizen of Pakistan. (2) Nothing in this section shall apply to any person who is a subject of any acceding State se far as concerns his being a subject of that State. "14(3). Nothing in subsection (1) shall apply, or shall be deemed to have applied at any stage, to a person who, being, or having at any time been, a citizen of Pakistan, is also the citizen of the United Kingdom and Colonies or of such other country as the Federal Government may, by notification in the official Gazette, specify in this behalf." "14‑A. Renunciation of citizen?ship.‑‑‑(1) If any citizen of Pakistan residing outside Pakistan, who is not a minor and ‑‑‑‑‑ (a) is also a citizen or national of another country, or (b) 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, makes in the prescribed manner a declaration renouncing his citizenship of Pakistan, the declaration shall be registered by the prescribed authority; and upon such registration that person shall cease to be a citizen of Pakistan: Provided that, if any such declaration is made during any war in which Pakistan may be engaged, registration thereof shall be withheld until the Federal Government otherwise directs. (2) Where a male person ceases to be a citizen of Pakistan under subsection (1)‑‑‑ (a) every such minor child of that person as is residing .outside Pakistan shall thereupon cease to be a citizen of Pakistan: Provided that any such child may, within one year of his completing the age of twenty‑one years, make a declaration that he wishes to resume the citizenship of Pakistan and shall upon the making of such declaration become a citizen of Pakistan; and (b) every such minor child of that person as it residing in Pakistan shall continue to be a citizen of Pakistan."

20. A bare reading of section 14, as enacted in 1951, makes it clear that the dual nationality was not permissible in the original Act. This was understandable as Pakistan was a Nascent State, millions had migrated from India to Pakistan, there was a concern of presence of individuals of divided loyalties within the country and the law maker intended to ensure that citizenship is confined to those who were committed to the new State alone. The second factor was the international climate. In the early 1950's the cold war was at its peek, nations were divided into camps, those were the days when countries talked in terms of the free world and the iron curtain of communism and democracy. No wonder .the concept of dual nationality was disfavoured. But the international climate gradually changed, there was easing of tensions between the polarized world, iron curtain was slowly lifted, the Burlen Wall collapsed, the East and West Germany got united, the clouds of cold war, disappeared, the market forces and the multi‑nationals attained ascendancy, individuals went beyond their geographical frontiers in pursuit of education and livelihood and this transnational movement of people made the world more tolerant. Those who left their home and hearth for a better deal still wanted to retain their contact with their roots i.e. their countries of origin. This emerging culture generated a new interest, a new outlook and greater acceptability of the concept of dual nationality. Various countries amended their laws and Courts of Constitutional jurisdiction interpreted the law liberally and dynamically with a view not to exclude the citizens who wished to retain the nationality of the country of their origin.

21. In the backdrop of the afore‑referred change, Pakistan did not remain uninfluenced. Subsection (3) to section 14 of the Pakistan Citizenship Act was added in 1972. The amending Act made the dual nationality permissible, but confined it to the countries mentioned in the amending section or which the Federal Government may notify Amending Act itself is silent about the purpose of this amendment but an examination of the history of the Act and the speech of the Minister of. Interior in the Parliamentary debate (when the amending Act was passed) would indicate that the law maker wanted to facilitate the Pakistani citizens living abroad to retain their contact with Pakistan. A reference to the speech here would be in order. Mr. Abdul Qayyum Khan was the Interior Minister who introduced the amending bill and his address to the Parliament is being reproduced below:‑‑

"The Pakistan Citizenship Act was passed in 1951. It was amended in April, 1952, and so far there has been no provision for dual nationality provided for in this Bill. The object of this Bill is to confer' dual nationality on those Pakistanis who are residing in the United Kingdom; the colonies or such other countries as are notified by the Central Government. In this connection, Sir I would like to mention that the Pakistanis residing in the United Kingdom wish to retain their social and spiritual ties with Pakistan and they are conscious of the fact that there is a growing feeling against Pakistanis in the United Kingdom and also in some of the colonies, which. is the result of a movement which has been‑ described as Powel Movement. And, therefore, they are very anxious. They have approached our Ambassadors that they should be allowed to retain their Pakistani nationality besides the other nationality which they have adopted. In this connection, the number of Pakistani nationals or those with Pakistan origin is 2,45,

300. Of these 1,80,700 belong to West Pakistan. The President in view of the demands of the Pakistani nationals in the United Kingdom and the colonies, promulgated an Ordinance on the 30th of June, 1972, the Pakistan Citizenship (Amendment) Ordinance. This enabled the citizens of Pakistan to retain their nationality even if they have become the citizens of the United Kingdom and the colonies and may be of such other countries as are notified by the Government of Pakistan. But in this ordinance, one thing was left out. There were 35,000 to 40,000 Pakistanis who, before the promulgation of this Ordinance, had adopted UK nationality and they 1Aould not have benefited from this new law conferring dual nationality on Pakistan nationals which is before the House. Therefore, suitable provision has been made in the Bill that those who had adopted UK nationality or the nationality of the United Kingdom and colonies earlier, namely, the 35,000 or 40,000 Pakistanis, they can also derive the benefit of dual nationality. Then, one thing more we have done in this. It is that Pakistani women, who are married to foreigners, are enable to retain Pakistani citizenship. To this certain exception was taken in the Committee meeting, out it must be realized that there is, under Article 22 of the Constitution. I will read Article 22 of the Interim Constitution of the Islamic Republic of Pakistan which says, '(1) All citizens are equal before law and are entitled to equal protection of law'. (2) There shall be no discrimination on the basis of sex alone. (3) Nothing in this Article shall prevent the State from enacting and special provision for the protection of women."

22. Notwithstanding the purpose of the amending Act as reflected in the speech of the Minister of Interior on the floor of the house, the Federal Government has so far notified thirteen countries with whom dual nationality is permissible. Those are the following countries:‑‑ (i) United Kingdom; (ii) France; (iii) Italy; (iv) Belgium; (v) Iceland;. (vi) Australia; (vii) Newzeland; (viii) Canada; (ix) Egypt; (x) Jordan (xi) Syria; (xii) Switzerland;' (xiii) Netherlands.

23. Now if the purpose of the Act was to facilitate the Pakistani citizens living abroad to maintain their links with the country of their origin then why this facility has been confined only to thirteen countries? What was the intelligible differentia? How can Pakistani citizens, living in the afore?referred countries, be differentiated from those living in United States or some other European countries to whom the facility of dual nationality has not been extended? A classification is permissible under Article 25 of 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 area which are distinct as compared to the remaining i.e. those who have been excluded. 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 M 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 we glance at the countries with whom the dual nationality has been made permissible and those which have been left out.

24. 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 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. About this valuable right, the Chief Justice of the United States Supreme Court, in Perez v. Brownell [(356 US 44, 64 (1958)], observed as under:‑‑ "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. "

25. The loss of citizenship entails deprivation of the afore‑mentioned rights and privileges. As Homer remarked, 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".(A Commentary on The Constitution of the United States by BERNARD SCHWARTZ, page 714). 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 un-amended section 1.4, 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 Abrahams vs. MacFisheries Ltd. (1925 2 KB 18) it was observed as under:‑‑

"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. "

26. 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. Explaining this principle Crawford, in Interpretation of Laws (Statutory Construction), in section 178 says as under:‑‑ "

178. The spirit and reason of the law.‑‑‑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 statutes, 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."

27. 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 this 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(1)(b) 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". .

28. Examined in the light of the discussion in the preceding paragraphs, the effect of the afore‑referred two sections 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 dual nationality:

29. A study of U.S. citizenship laws would show that although there is provision of renunciation (Section 337, 84 U.S.C. 1448 of the Immigration and Nationality Act) of the existing foreign citizenship if someone acquires U.S. citizenship through naturalization, but in case of non‑compliance no penalty or consequence is stipulated. The provision appears to be directory and not mandatory. It is 'not being enforced strictly. There is no specific prohibition of dual nationality in US law. Rather the precedent case‑law has accorded it recognition. The exclusion of USA from the list of countries with whom Pakistan may have dual nationality and the reason given by the Federal Government reflects a view of US Municipal Law and practice (on dual nationality) which is outdated. Stanely A.Renshon, in a recent article, Dual Citizenship and American National Identity (downloaded from inter net, report in pdf format) has explained the concept and the incidence of dual nationality under US law. According to him:‑‑ "A person in the United States may acquire multiple citizenship in any one of five ways (Aleinikoff; 1998a, 26, 27; see also O'Brien, 1999, 575). He or she may be born in the United States to immigrant parents. All children born in the United States are U.S. citizens regardless of the status of their parents (jus soli). Second, a person may be born outside the United States to one parent who is a U.S. citizen and another who is' not (jus sanguinis). A child born to an American citizen and British citizen in the United Kingdom for example, would be a citizen of both countries. Third, a person becomes a naturalized citizen in the United States and that act is ignored by his or her country of origin. This is true even if the country of naturalization requires as the United States does, those naturalizing to 'renounce' former citizenship/nationality ties. In the case of the United States, failure to take action consistent with the renunciation carries no penalties, and other countries can, and often do, simply ignore that oath of allegiance.. Fourth, a person can become a naturalized citizen of the United States and in doing so lose her citizenship in her country of origin, but can regain it at any time, and still retain her U.S. citizenship. There is also a fifth and in some ways newly emerging vehicle for developing multiple citizenships unremarked upon by either Aleinikoff or O'Brien. Citizens of a country like the United States that does not formally recognize dual citizenship, but does not discourage it either, may have citizens whose countries of origin have dual citizenship agreements with third, fourth, and even fifth countries. For example a number of Latin American countries recognize dual nationality with Spain, as Guatemala does with other Central American nations (Jones‑Correa, 2000, 2). The common citizenship status towards which the European Union is moving is another example of what might be called block multiple citizenships. The United States does not formally recognize dual citizenship, but neither does it take any stand, politically 'or legally, against it. No American citizen can lose their citizenship by undertaking the responsibilities of citizenship in one or more other countries. This is true even if those responsibilities include obtaining a second or even a third citizenship; swearing allegiance to a foreign State, voting in another country's election, serving in the armed forces (even in combat positions, and even if the State is a 'hostile' one), running for office, and .if successful, serving. Informed Constitutional judgment suggests Congress could legislatively address any of these, or other, issues arising out of these multiple, perhaps conflicting responsibilities. Yet, todate, it has chosen not to do so."

30. The statutory provision of renunciation in law has been a subject of criticism in. U.S.A. According to Peter J.Spiro, in an article on DUAL NATIONALITY AND THE MEANING OF CITIZENSHIP, he said:‑‑ "The renunciation, oath adds little, from society's perspective, to the value of a would‑be citizen. The oath (even though it is unenforced) may move some to cut home‑country ties, the retention of which would on balance benefit the United States. Others will ignore the oath and maintain such ties, an act which, if not perjurious, at least compromises the solemnity of the naturalization rite. Some, finally, will be deterred from naturalizing altogether, either because they are misinformed about the oath's enforcement or because they take oaths seriously. Such deterred naturalizations deprive individuals of the full rights of citizenship while society suffers their incomplete political and social participation. Continued imposition of the oath of renunciation as a threshold to naturalization thus appears unjustifiable .........From a purist's perspective, I am not convinced that a citizen owes any core political loyalties to the United States beyond those covered elsewhere in the oath (including, most notably, the undertaking 'to support and defend the Constitution and laws of the United States'. An oath of primary loyalty might at least at the margins continue to deter some from naturalizing. One might also expect such an oath to assume some of the false symbolism of the existing renunciation requirement, as other countries came to require the same of their naturalizing citizens. I thus believe that the renunciation oath should not merely be diluted but rather eliminated altogether."

31. As discussed above there is no bar in US Laws to retain dual nationality and renunciation provision is not being strictly followed. In any case 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 lose 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 affidavit placed on record by the petitioner to the effect that he never renounced his Pakistani citizenship lends credence to the view that renunciation is not a mandatory provision and individuals have acquired U.S. nationality without prior renunciation.

32. The act of the Federal Government in not notifying USA 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. According to De Smith, Woolf and Jowell, judicial review would be justified in two situations:‑‑ " ...first, where the existence of a set of facts is a condition) precedent 1to 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." [(JUDICIAL REVIEW OF ADMINISTRATIVE ACTION, FIFTH EDITION, CHAPTER 13, PAGE 561(13-022)]

33. The powers of this 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 and circumstances of a case. Article 199(1)(c) of the Constitution mandates as under:‑‑

"

199. Jurisdiction of High Court.‑‑‑(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,‑‑ (a)

(b)

On the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II. " The expression "as may be appropriate for the enforcement of any of the fundamental rights" appearing in the afore‑referred provision confers upon the Constitutional Court a discretion to provide relief under the law to a citizen which may be necessary. The ambit of these powers was commented upon by the august Supreme Court in Darshan Masih v. The State (PLD 1990 Supreme Court 513) and it was held as under:‑‑ "The nature of the orders which can be passed in such cases is also indicated in Article 184(3); that is such as can be passed under Article

199. Even if for the time being it be assumed that the 'nature' of the order is confined only to the orders under sub?clause (c) of Article 199(1) and not to the other orders under 'Article 199' it would be seen that any conceivable just and proper order can be passed in a case like the present one. The principle of extension involved in the relevant phrase used in Article 199(1)(c); 'an order giving such directions to any person or authority‑‑as may be appropriate for the enforcement of the‑‑I cannot be abridged or curtailed by the law. As to how far it cannot be extended, will depend upon each case."

34. For reasons given in the preceding paragraphs, 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 orders 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 un-certainty and vagueness which are antithesis of the concept of Rule of Law. The exclusion of the kind under consideration is the price that the citizens have to pay for such a dispensation.

35. The Pakistani citizens residing in USA are as much loyal to this country as those living in UK or in countries qua which the Federal Government has issued notification in terms of section 14(3). USA has been an open society with democratic traditions. It has assimilated people from all over the world. As somebody aptly remarked "it is a nation of immigrants". Pakistani expatriates residing there are hardworking and have made their mark in various fields. Some of the success stories have brought a good name to this country and we should be proud of them. If we want them to play any role for the promotion of national interests we have to accord them a status of respect as citizens.

36. There was no justifiable reason to, deprive them of their citizenship and make them aliens in their own country. In these circumstances and having found the effect of the impugned provisions to be discriminatory it is declared that those Pakistanis who have not renounced Pakistani citizenship shall continue to be the citizens of this country 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 USA 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 or the original citizenship. It is, therefore, directed that till such time the law and rules are suitably amended, Rule l9‑B of the 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 declarent shall be treated as a citizen of Pakistan.

37. This brings us to the last proposition i.e. whether a dual national can contest election for membership of the Parliament. Article 63(1) (c) of the Constitution of Islamic Republic of Pakistan, 1973 reads as under:‑‑ "

63. Disqualification for Membership of [Mailis‑e‑Shoora (Parliament)].‑‑‑‑(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) ............. he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State."

38. The contention of the petitioner's learned counsel was that the petitioner is qualified to contest the general election for the membership of the Parliament in terms of Article 62 of the Constitution which pertains to qualification, for a member of the Parliament. According to learned counsel for the petitioner, in absence of any bar tier a dual national prescribed in Article 62 of the Constitution, petitioner is qualified to contest the elections and that the disqualification enumerated in Article 63(1) (c) of the Constitution comes into force only when a person has been elected as Member of the Parliament.

39. The above interpretation of the Constitutional provisions is a rather over simplification and would lead to anomalous results. Article 63(l) (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. This Court has declared petitioner to be a citizen of Pakistan but 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. Since the petitioner has admittedly acquired citizenship of a foreign country he is hit by the afore‑referred provision and cannot contest elections unless, of course, he removes this disqualification in terms of rule 19 of the Pakistan Citizenship Rules, 1952.

40. Before parting with the judgment I would like to place on record appreciation for the able assistance rendered by the learned counsel for the petitioner as also the learned Deputy Attorney‑General Khawaja Saeed‑uz-?Lafar. The valuable assistance rendered by the learned Advocates appearing as amicus curiae i.e. Mr. Umar Atta Bundial, Syed Mansoor Ali Shah and Syed Shabbar Raza Rizvi warrants a special mention as they laboured hard to make their presentations on the issues raised in this petition.

41. This petition is partly allowed and is being disposed of in terms noted above. A copy of this judgment shall be sent to the Secretary Law, Government of Pakistan, Islamabad to examine the desirability of amending the Pakistan Citizenship Act in the light of the observations made above. M.B.A./U‑32/L ?????????????????????????????????????????????????????????????????????????????????? Order accordingly.