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May 26, 2019

Citizens or refugees?


May 26, 2019

One of the 20th century’s most widely-loved pieces of literature is a song from the 1960s titled ‘Blowing in the Wind’. Authored by Bob Dylan, poet of the hippies, now also a Nobel laureate, it asks a few simple, rhetorical questions: “How many years can some people exist/ Before they’re allowed to be free?” Dylan’s questions are so pinching and the song so moving because it is the simplest, most obvious questions that those in power always try to evade.

There is a similarly simple question which, for forty years, been staring the Pakistan state in its face: How many years must the children of refugees live here before they are allowed to be citizens? For over 40 years, the state has evaded this question, which affects the destiny of millions. How much longer can it do so?

It is worth reflecting on the fact that a vast majority of those whom our state calls Afghan ‘refugees’ (or ‘Bengalis’, for that matter) are not ‘refugees’. They are either the children of refugees or the grandchildren of refugees. Their forefathers may have come to Pakistan fleeing war and persecution, but they themselves were either born here or have lived here for decades. Pakistan is the only country they really know.

It is a fact that under Pakistan’s citizenship laws, all such people are entitled to be considered citizens of Pakistan. The law already recognizes this right; it has only to be implemented. I first made this argument in an op-ed published in this paper back in October, 2016. Almost two and a half later, as Pakistan’s government officially celebrates 40 years of hosting ‘refugees’, I think it is worthwhile to repeat the argument.

The mainstay of my claim is the Citizenship Act, 1951, the primary law governing citizenship in Pakistan. Section 4 of this Act 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. There is no exception in the rule of jus soli for the children of refugees.

One might ask, why did our founding fathers adopt such a generous, inclusive law? I don’t think it could be attributed to oversight. The Citizenship Act was adopted, after much debate, by the founding fathers of our republic, a vast majority of whom were lawyers. They knew what they were signing up for. I think the law was designed to reflect the generous and hospitable spirit of our people which no traveller to this country fails to notice. In addition, the law was deeply informed by the personal experience of the members of our Constituent Assembly. A good number of them, prime minister Liaquat Ali Khan amongst them, were refugees. In fact, Pakistan in 1951 was a country teeming with refugees.

Beside birth-place citizenship, there are at least three other legally guaranteed routes to citizenship which are open to persons of Afghan origin: citizenship by marriage, citizenship by descent and citizenship by naturalization.

The Naturalization Act, 1926 recognizes the right to citizenship of any person who continuously spends above five years in Pakistan. 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 Afghan ‘refugees’ living in Pakistan meet these 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.

Section 5 of the Citizenship Act recognizes that Pakistani citizenship can be passed on through blood. So if any Afghan refugee, man or woman, marries a Pakistani spouse, the children are all Pakistanis. In addition, there is Section 10 of the Citizenship Act, according to which any non-Pakistani woman who has married a Pakistani man gets citizenship by virtue of marriage alone.

To sum up, most of those whom our state refers to as ‘Afghan refugees’ have by now become legally entitled to Pakistan citizenship – either because they were born here, have lived here long enough, or have a Pakistani spouse or have one Pakistani parent.

When I first started articulating this argument, about three year ago, it was widely greeted with scepticism. But things changed in September, 2018 when the head of the executive branch of our government officially endorsed this interpretation of the law. In a speech made on the floor of parliament, Prime Minister Imran Khan accepted that the children of Afghan refugees who were born in Pakistan are our citizens. He referred to the example of other countries in today’s world where the principle of jus soli continues to be valid law – the most prominent being the United States of America. During the ensuing parliamentary debate, Dr Shireen Mazari, minister for human rights, categorically stated: “Whether you like it or not, it is the law that those born in Pakistan are Pakistani nationals.”

In the wake of these admissions by the highest state functionaries, how can officials continue to treat these millions of Pakistani-born persons as ‘refugees’. How much longer can we continue operating by the cruel assumption: ‘once a refugee, always a refugee’, which runs contrary to our religion, culture and law. “How many times can a man turn his head/ And pretend that he just doesn’t see?”

Accepting the citizenship status of persons of Afghan origin is not only the legally correct thing, it is also the wise thing. It would go a long way to help the state win over their undivided loyalty. There are also political advantages to be gained from it. The beneficiaries of this policy may only comprise one percent or so of the population but they are concentrated in a few constituencies in Karachi and northern Balochistan. If they are allowed to vote, their vote would count heavily for whichever political party takes the credit.

Last, but not the least, accepting ‘Afghan refugees’ as citizens is likely to contribute positively to the economy. Whatever economic shock the refugees created has long since been absorbed. Today, giving citizenship right to this community, which is by no means economically insignificant, would encourage it to invest in Pakistan.

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

Email: [email protected]

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