The interim government’s decision to expel all refugees from its territory also goes against the very spirit of why Pakistan came into being – a place where residents once under threat of persecution could live and be free, Dawn reports.
British-Somali poet Warsan Shire recently said:
No one leaves home unless home is the mouth of a shark.
This poem by Shire has become an appeal to refugees, emigrants and those who continue to seek refuge in other countries. Pakistan is one such haven – a country that hosts one of the largest refugee populations in the world.
However, in early October, an unexpected ultimatum was issued: the interim government of Pakistan demanded that all “illegal immigrants” leave the country by 1 November. After that date, they are to be deported, their businesses and property confiscated, and any locals who assisted them must face the law – all with the help of a new task force.
In order to justify such drastic immigration policies in the country’s history, the caretaker authorities blamed Afghan nationals for the surge in terrorism last year, accusing them of involvement in 14 of 24 terrorist attacks – from Peshawar to Kila Saifullah. Less direct accusations, but mentioned in the same press statements, were smuggling, black market trade and drug trafficking.
Another reason was the chilling atmosphere in the neighbourhood – Pakistan’s growing discontent with Taliban-led Kabul, which had failed to either quell the resurgent TTP or stem the tide of terrorist attacks.
Over the next few weeks, police round-ups of Afghan migrants, some of whom had been living in the country for decades, began across the country. Convoy after convoy of refugees made their way to Torkham, the border crossing into Afghanistan; between 3,000 and 4,000 refugees a day were being processed, and more than 250,000 “voluntary returns” have been claimed so far. Head of the family Abdul Rasul told Al Jazeera journalist Abid Hussain at Torkham recently:
I came to this country when I was four years old with my father. I still have my Afghan identification document from when I used to live there. My siblings were born in Pakistan. My parents and grandparents are buried in Pakistan. Please tell me, why am I being sent back?
Abdul Rasool has every right to ask this question. From the very beginning, Pakistan’s founding fathers took a rather liberal view of citizenship – as a birthright. Section 4 of the Pakistan Citizenship Act of 1951 is clear:
Every person born in Pakistan after the commencement of this Act shall be a citizen of Pakistan by birth …
This is the eternal tenet of jus soli, which means “by right of the soil” in Latin. In proposing the bill in the first Constituent Assembly, Khawaja Shahabuddin – brother of Pakistan’s Governor General Nazimuddin – emphasised: if a person did not leave the country at the time of partition, “the basic feature … is that citizenship … extends to all persons who, or whose parents or grandparents, were born in the territories that now constitute Pakistan.”
The bill was considered in special committees, received legal advice and moved from the constitutional part of the assembly to the legislative part – a process very different from the ‘steamrolling’ of later parliaments.
As is often the case with citizenship issues, its passage was hotly debated with the Muslim Leaguers of the Liaquat era, Sattar Pirzada (who detailed its purpose) and Mahmood Husain (who introduced it line by line during its passage), against opposition from the Pakistan National Congress, such as Dhirendra Nath Datta, who favoured a more generous bill.
Faced with Datta’s harsh criticism in the early days of the debate in 1948, Prime Minister Liaquat Ali Khan responded on the floor: his colleagues had “made it easier for people to become citizens of Pakistan than in any other country,” pointing to the Indian bureaucracy. (While the comparison with India was technically correct, Datta’s violent end in 1971 should have raised deeper questions about what citizenship entails.)
When the assembly passed the bill on 10 April 1951, it intended to cover migrants who had survived partition as widely as possible by automatically recognising as citizens all those permanently resident in Pakistani territory by the end of 1951, Dawn reports.
Citizenship was also automatically granted to those who were married to Pakistani spouses or born of Pakistani parents. As for citizenship by birth, it was excluded only for children of foreign diplomats or children of enemy aliens in occupied territory. Liaquat said:
Pakistan welcomes everyone who wants to come and make Pakistan his home but at the same time it lays down the condition that he must owe allegiance to Pakistan, and Pakistan alone.
This system functioned successfully until the 1970s, a decade marked by wars that heralded huge changes in the understanding of what it meant to be Pakistani: the secession of Bangladesh in 1971 and the Soviet entry into Afghanistan in 1979.
With the end of the unified country, the government lawyers tasked with dealing with the aftermath of East Pakistan’s bloody secession from the federation made a drastic amendment to the POCSOA in 1978: all those who chose to remain in the country after 16 December 1971, the day Dhaka fell, “cease to be citizens of Pakistan”. Thus, a one-time majority of the country’s population was permanently removed from the law books.
Among more than 3.7 million Afghans living in Pakistan are those with an Afghan citizen card, those with a Public Registration Card (PoR), refugees after the Taliban came to power and the unregistered, according to Dawn.
Though it is this fourth category that proves to be the most vulnerable: a PoR card holder can do little more than open a bank account, no card allows one to do business. As Muti-ur-Rehman and Jamaima Afridi’s articles in Dawn Prism demonstrate, lack of status means complete insecurity from deportation – locals refuse to repay cash loans to businesses and refugees are forced to sell off their property at throwaway prices. Extortion of the unprotected population is also easy, as any report to the police can land the applicant in jail – like an Afghan without a piece of paper.
As it turns out, even registration may not save from deportation: the Balochistan government recently announced that the next stage would be the deportation of registered refugees. This opening of the curtain points to a much more radical and ethnocentric set of steps than first envisaged.
The government needs to move in the exact opposite direction – to provide a decent pathway to citizenship, which is already envisaged in the JRP, as well as state protection for the most vulnerable until they are processed. This would also be in line with the principle of non-refoulement, a basic principle of international law that prohibits states from returning asylum seekers to a country where they are likely to face persecution.
Until then, the interim government should stick to its own laws and not stray so far from its elected predecessors – in early 2017, Nawaz Sharif’s cabinet ordered:
Till such time the documentation process by Narda is completed, harassment of unregistered Afghan refugees and application of … the Foreigners Act, 1946, should be avoided.
A year later, the Imran Khan government went as far as to promise citizenship. He said:
Afghans whose children have been raised and born in Pakistan will be granted citizenship Inshallah.
There are also progressive judgements from the higher courts – on a petition filed by Umer Ijaz Gilani, Justice Babar Sattar ruled that in the case of an Afghan woman fleeing the advancing Taliban, foreigners claiming refugee status are entitled to protection of fundamental rights and are not subject to deportation.
Now the same lawyer has filed a petition in the Supreme Court. The petition, filed by citizens Jibran Nasir and Farhatullah Babar, seeks to stop mass deportation and allow UNHCR to process all asylum claims. The case is now in the Supreme Court, though its start is not promising, Dawn reports.
However it decides, one fact is painfully obvious: the PCA gives full citizenship rights to those born in Pakistan. It should have always been so, since the days of Liaquat Ali Khan. But both government policy and decisions like the Peshawar High Court’s ruling in the Sanaya case actively violate the law. Deporting those who have no other home and nowhere to return is unjust and cruel.
As liberal Justice Earl Warren, who knew a thing or two about the horrors of identity, said:
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. He has no lawful claim to protection from any nation, and no nation may assert rights on his behalf.
Specifically about the nation, it goes against the whole spirit of why Pakistan came into being, a place where people once under threat of persecution could live and be free. What is not the example of 47-year-old Khair Muhammad, stuck in Torkham, who first fled to Pakistan two years after the Soviets had their way, returned to Afghanistan to Karzai, and then fled the Taliban? He said:
Pakistan has given me a lot and shielded me twice.
Now he must give him protection again – that was always the promise of Pakistan and the stakes for many who fled to it.”
