Afghan ‘refugees’

October 27,2016

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For many months now, the interior ministry has been repeatedly vowing to throw out two million human beings – an inhumane policy that is euphemistically referred to as voluntary repatriation of Afghan refugees. While the rhetoric surrounding the repatriation policy has grown more vitriolic of late, the policy itself is nothing new.

Power players in the Great Game all seem to agree that sooner or later the Afghans living in Pakistan will have to be uprooted from their present habitats and sent to their ancestral lands. The governments of Pakistan and Afghanistan and the UNHCR signed an agreement to this effect in August 2007 and renewed their resolve in June 2016. The Proof of Registration Cards issued to around 1.4 documented refugees by the government of Pakistan under the Foreigners Act contain a deadline. Through a mixture of cajoling and coercing, several hundred thousand people have already been ‘repatriated’. It is as if they were moveable pawns, not people and communities.

Whatever its policy merits might be, I want to point out that the repatriation policy is illegal. Totally illegal. Forget the fancy, fluffy stuff called international law. Forget the Geneva Convention on Refugees of 1951 which we haven’t ratified. And forget the issue of whether any particular case of repatriation is voluntary or forced. Just read Pakistan’s domestic law. According to our domestic law perspective, the two million Afghan ‘refugees’ who face the threat of repatriation are not refugees at all; they are Pakistani citizens. Compelling Pakistani citizens to leave their country is not only illegal, it is criminal.

It wasn’t always like this. When these people first fled Afghanistan, they did enter Pakistan with the statue of ‘refugees’. But that was years and decades ago. As time flew by and these millions of ‘refugees’ continued to reside in Pakistan, they began to accrue certain rights under Pakistan’s citizenship law. Pakistan’s citizenship law, which few bother to study, is unusually generous and welcoming to stranger– just like our people. By now, most Afghans living in Pakistan have become legally entitled to citizenship through any of these four different channels: birth-place, naturalisation, blood and marriage.

First, there is Section 4 of the Pakistan Citizenship Act, 1951 which codifies in an undiluted form the common law principle of jus soli, ie birth-place citizenship. It says, in simple words, that anyone born on Pakistani territory is a Pakistani citizen with two exceptions only: the children of diplomats and the children of occupying enemy soldiers. Bear in mind that our founding fathers, who promulgated this statute after extensive debate back in 1951, made no exception for the children of refugees.

Around 73 percent of the so-called registered Afghan ‘refugees’ fall in this category: they were born on Pakistani soil. Like it or not, by virtue of Section 4, these people are as Pakistani as you and I. In the years since 1978, parliament could have amended Section 4 to narrow its scope – like India did, thorough amendments passed in 1986 and 2003. But, in line with our general national ethos of embracing refugees, we did not exclude the children of refugees from the ambit of birth-place citizenship. Now we cannot just expel them arbitrarily.

Second, there is Section 3 of the Naturalization Act, 1926 which recognises the right to citizenship by naturalisation. It says that, roughly speaking, if you spend eight years in Pakistan, you become entitled to citizenship. There are three other requirements: knowledge of at least one Pakistani language, good character, and, in the case of citizens of certain states which deny naturalisation to Pakistani citizens, a willingness to give up existing citizenship. Most Afghans ‘refugees’ living in Pakistan meet all of the above criteria: they have lived here for decades, are fluent in Urdu and/or Pashto, have earned no criminal convictions and are willing to trade anything else in the world for a Pakistani citizenship.

Despite the clear text of the Naturalisation Act, the Ministry of Interior has a long-standing policy of denying the benefit of naturalisation to Afghan applicants. The ministry might fancy that the phrase “may grant” used in Section 3 vests it with unchecked discretion in naturalisation matters. This is wishful thinking. Any lawyer acquainted with our constitutional law will tell you that wherever governmental discretion has a direct effect on the rights of people, it has to be exercised in a right-protective and structured way.

If Afghan applicants meet the criteria laid down in law, the government has no choice but to naturalise them. If the government ‘may’ deny naturalisation to whomsoever it wishes, what’s the point in having a Naturalisation Act in the first place?

Third, there is Section 5 of the Citizenship Act according to which citizenship can be passed on through blood. So the children of such Afghan refugees, men and women, who have a Pakistani spouse, are also Pakistanis.

Fourth, there is Section 10 of the Citizenship Act, according to which non-Pakistani women who have married Pakistani men get citizenship by virtue of marriage alone. The converse, ie non-Pakistani men automatically getting the citizenship of their Pakistani wives, was not true until 2007. But in 2007, the Federal Shariat Court, in Suo Motu Case 1/K of 2006, extended the this right to women too. The government’s appeal against that decision is still pending in the Supreme Court but has little merit.

To sum up, the government’s repatriation policy is illegal because it seeks to expel from Pakistan a group of people most of whom are not refugees, to begin with. In the eyes of the law, they are entitled to citizenship either because they were born here, have lived here long enough, have one Pakistani parent or have a Pakistani spouse. Petitions raising some these issue have already been filed before the Supreme Court of Pakistan and in the Peshawar High Court. As the March 31, 2017 repatriation deadline approaches, more petitions are likely to crop up.

Given this legal backdrop, our government and the international community would be well-advised to shift their focus from repatriation to integration. These two million citizens of Afghan origin can become a unique asset to Pakistan– in economic as well as strategic and diplomatic terms. But for this to happen, we would first have to invest in developing their human potential and bringing them into our national mainstream.

The writer is a partner at The Law and Policy Chamber.


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