LUMS teachers move SC against ‘en masse’ deportation of Afghans

ISLAMABAD: The Supreme Court has been petitioned for directions to revert to the previous procedure adopted for the registration and processing of asylum applications in collaboration with the UNHCR under previous agreements. This, says the petition, can last until such time as parliament enacts appropriate asylum and refugee legislation consistent with Pakistan’s international obligations.

Six faculty members of the Lahore University of Management Sciences (LUMS) -- Prof Uzair J Kayani, Prof Sadaf Aziz, Prof Ali Raza, Prof Angbeen Mirza, Prof Madiha Talat and Prof Aisha Ahmad -- filed a plea on Thursday under Article 184(3) of the constitution, challenging the interim drive to “en masse deport Afghans” and seeking orders to restrain law-enforcement agencies from implementing the decision. The plea has been fixed for hearing today (December 1).

The petition -- drawn by Supreme Court advocate Mian Sami ud-Din -- has asked for an independent commission to oversee and ensure that the federal government takes necessary measures to reverse the harm done by virtue of the decision to expel Afghans.

The plea has made the federation, all the four provinces, Islamabad chief commissioner, chief commissioner for Afghan refugees, National Database and Registration Authority (Nadra), director general of Immigration and Passports and the United Nations High Commissioner for Afghan refugees as respondents.

The petition states that the petitioners, as concerned citizens, were compelled to file the plea in the interest of the underprivileged Afghans living in Pakistan, “whether refugees, asylum seekers, so-called illegal foreigners or Pakistani citizens of Afghan origin”.

“This petition is necessitated due to the serious human rights abuses and blatant violation of the constitution and international law being committed by the federal government, the provincial governments and other government authorities in the name of Pakistan.”

The petition also recalls that Pakistan has been a “generous host” to approximately five million Afghan refugees for the past 40 years and the current situation in Afghanistan is a “real threat and danger” for refugees to return.

It points out that as per the Ministry of States and Frontier Regions, there were 1.3m registered Afghans, 0.8m newly registered Afghans and 0.7m undocumented Afghans in Pakistan. Says the petition: “Among the undocumented is an influx of an estimated 600,000 new Afghan arrivals since Aug 2021 after the takeover of the Taliban government in Afghanistan. An estimated 300,000 of those have tried to approach the UNHCR to register as refugees but UNHCR has not permitted to do so".

It highlights that Afghans did not obtain documentation because previously there was no such legal requirement and a “proof of registration card” was only introduced in 2006. However, the card had to be extended from time to time due to its temporary validity period. The current situation of Afghan refugees persists due to the “lack of asylum/refugee law in Pakistan”.

The petitioners have also added that the caretaker government’s decision to expel Afghans “is not contained in any formal written letter” and does not “appear to have been passed under any legal authority such as the Foreigners Act 1946 or any other statute.”

During the expulsion, Afghan nationals were allowed to carry Rs50,000 each from the country, while many of them were forced to abandon their homes, properties and businesses in Pakistan. The plea further states that reports have shown how law-enforcement agencies were targeting all Afghan nationals and deporting them, adding that even undocumented Afghans with confirmed refugee status would be expelled.

According to the petition, “Since the impugned decision was made and the expiry of the deadline was given, Afghans are being subjected to forced expulsion, harassment, extortion, physical abuse, racial discrimination, separation from family members, and inhumane treatment in violation of their fundamental rights guaranteed by the constitution and international law", adding that various organisations had highlighted the same .It also points out various international laws that prohibit the expulsion of aliens in circumstances where their lives could be under threat.

Highlighting the deportation of Afghan children born in Pakistan, the petition says the decision was a violation of the Citizenship Act. It adds that Sections 3 (power to make orders), 4 (internees) and 9 (burden of proof) of the Foreigners Act were also ultra vires Article 10 of the constitution — which related to the right of fair trial.

Moreover, the petition says that the caretaker government cannot not take such a decision and hence this is also a violation of Section 230 of the Elections Act, 2017.

The plea subsequently says that the government’s decision to expel Afghans was “null and void” and of no legal effect, that Sections 3, 4, 9 and 14(2) of the Foreigners Act should be declared ultra vires the constitution, and that Afghan children born in Pakistan should be entitled to Pakistani citizenship and the government should take all measures to reverse the harm done by facilitating the return of Afghans to their homes in Pakistan.