SC reticence on dual nationality judges vexes Senate
06 March, 2013
ISLAMABAD: The legislators in the Upper House of parliament on Tuesday came down hard on the Supreme Court for not responding to the Senate's questions regarding presence of any judges in the superior judiciary having dual nationality.
The senators regretted that the Supreme Court neither responds to the Public Accounts Committee of the National Assembly nor gives proper answers to the Senate and considers itself 'above' parliament.
Senator Farhatullah Babar sought and secured approval of the Senate to discuss a matter of 'sufficient public importance' arising out of the replies given by the Supreme Court to the questions raised by the parliament. The PPP senator submitted a written motion on the subject, also signed by Barrister Aitzaz Ahsan, for a parliamentary discussion on the issue within three days.
The issue arose out of the reply given to a question asked twice by Farhatullah Babar that whether there were any judges in the superior courts who held dual nationality, and their names if any. Senator Farhatullah Babar, through the Senate Secretariat, had asked about the dual nationality judges on December 20, 2012. The reply was that neither the constitution nor the code of conduct prescribed any bar in this regard for the judges of the superior courts.
The senator, not satisfied with the answer, sent the same question again, only to receive the same reply. Reacting over the apex court's second reply, Senator Babar said that regardless of whether the constitution placed any embargo, he wanted to know whether there indeed were any dual national judges in the superior judiciary. He wondered as to why an 'evasive' reply had been given to his simple and straight forward question.
Farhatullah Babar said he did not believe that any judge had taken oath of allegiance to the constitution and monarch of any foreign country, but the reply given had created doubts that needed to be dispelled for the sake of the majesty of the law and the prestige of the honorable judges.
He said that Article 63 (1) of the constitution forbade dual nationality holders from becoming members of the parliament and that several parliamentarians had been disqualified and ordered to return pays and perks for holding dual nationality. Similarly dual nationality holders were not eligible for appointment in the armed forces and a candidate having dual nationality must surrender his nationality before joining the civil services academy.
Farhatullah Babar said that he was concerned if any judge actually held dual nationality because in the case of Dr Tahirul Qadri it was held that there might be a conflict between the oath of allegiance to Canada and to the constitution of Pakistan. He said that by the same logic, it would be strange if an honorable judge sought to impose adherence to the constitution when his own loyalty was divided because of possible dual nationality. He also quoted from the remarks of the judges published at the time of hearing of Dr Qadri's case to substantiate his point that a dual national judge would be a strange oddity.
Farhatullah Babar said that it was important that a categorical assurance be given that there were no judge held dual nationality regardless of whether the constitution permitted it or not.
He said that judges exercised extraordinary powers over elected institutions or constitutional functionaries of the state. "I cannot imagine that there will be judges who may have sworn allegiance to the monarchs and constitutions of other states and were torn between divided loyalties and yet could exercise powers like sacking an elected prime minister of Pakistan, overturning the ruling of the speaker and calling for the record of parliamentary proceedings."
He said that he believed in the majesty of law and dignity of judges that was why he wanted the judges to show due respect to the parliament by giving serious attention to the issues raised.
Farhatullah Babar said he was not satisfied with the answer given by the Supreme Court through the Ministry of Law and Justice and wanted to invoke Rule 60 and discuss the matter in detail.
Senate Chairman Nayyer Hussain Bokhari noted that if a member is not satisfied with an answer of a ministry or department, he can invoke Rule 60 and the matter would be discussed in detail. However, PML-N's Zafar Ali Shah was of the view that Rule 60 could not be invoked in this case because the final authority for appointment of judges is the president of Pakistan and details about judges' appointment may be asked from the Presidency. He claimed that registrar of the Supreme Court was not in a position to tell the House about the number of judges having dual nationality.
Senator Babar Awan said that in the 18th Amendment, 19A was inserted in the constitution, which stated that access to information is a right of every citizen. He said that after the Supreme Court judgement on Qadri's petition, a litigant must have single nationality if he wants to move the court. Senator Aitizaz Ahmad remarked that since the Supreme Court has made hectic efforts to clear parliament of dual nationals, similar efforts should be made to clear the Supreme Court of dual nationals.
He said there are multiple problems in appointing judges of the higher courts and the issue may be discussed in detail in the Senate after invoking Rule 60. Federal Minister for Law and Justice Farooq H Naek told the House that the Federal Shariat Court has given a clear response that it has no dual national judges.
PPP Senator Saeed Ghani said the SC registrar considers himself as Chief Justice of Pakistan and has refused to attend PAC meetings. He said the SC always directed the government to take decision on ethical grounds but is totally silent now.
Senator Karim Khawaja regretted that the SC and high courts registrars could not provide details about pending cases during the last five years. On suo motu cases during the last five years, the House was informed that total 86 suo motu notices were taken, out of which 53 were disposed of while 33 still pending.