saiyan0321
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INTRODUCTION
The premier Imran Khan on his first visit to Karachi gave a fiery speech worthy of oratory skill which encompassed issues like dams to deforestation. Among those issues he brought forward another issue which is faced by Bengali and afghan migrants/refugees which is citizenship. In plain words he stated that their condition is worsening by the day and the law and order situation such poverty can create must be avoided and the constant limbo they find themselves in must be answered and for this, in bold words that raised many eyebrows, he stated that he would provide citizenship for all children born in Pakistan.
This brought forward an issue in limelight that has been in limbo. What is Pakistan going to do about these aliens which inhabit nearly every district of Pakistan? According to the premier his administration will look to make their children at least Pakistani citizens.
This had, of course, the expected reaction. Many condemned this move and many hailed this move. The Social media and media landscape is slowly filling itself with arguments detailing both pro and cons. However among these arguments many have taken to legal interpretations with many claiming that this will require a bill to amend the current laws of citizenship and many stating that such law already exists and all that awaits is its interpretation.
In this article I would like to bring to light the points and arguments of both sides and how both are wrong and right at the same. To do this we will look into the acts and the case laws that have passed their judgments upon such matters.
In my view citizenship is a grand step that must be taken with complete understanding of the social and economic conditions and requirements of the state yet we must also not forget the legal laws of the land and what they say upon the matter any step without first taking into account the laws that govern the state will lead to a legal crisis that all governments before Imran’s have passed through one way or the other be it containing the powers of a governor general or trying to pass land reform.
CITIZENSHIP
As the arguments heats up many provide example of US and UK. In plainest terms there are two concepts and maxims that run the concept of citizenship.
Jus soli
Jus soli is a Latin term that means ‘Law of the soil’ which is taken as citizenship of any person born into the soil of the state. This form of citizenship concept found itself in UK, an empire that spanned from Asia to the Americas. Thus the citizenship law of UK stated that any person born within the domain of the British Empire would be the citizen of the empire. This was attached to another maxim “protectionem trahit subjectionem, et subjection protectionem” which meant all persons born within the King’s allegiance and subject to his protection. This concept was also adopted by the US law of citizenship and enshrined within the 14th amendment. The principle of “jus soli” was recognized by the United States Supreme Court in the decision announced in 1898 in case 169 U.S. 649 (1898) (United States vs. Wong Kim Ark.), whereby the majority opinion authored by Justice Gray stated as under:-
“The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called “ligealty,” “obedience,” “faith,” or “power” of the King. The principle embraced all persons born within the King’s allegiance and subject to his protection. Such allegiance and protection were mutual—as expressed in the maxim protection trahit subjectionem, et subjection protectionem – and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King’s dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King…
The case of Dred Scott laid the foundations for such citizenship laws.
the 14th amendment is reproduced as under:-
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No State shall make or enforce any law which shall abridge [deprive] the privileges or immunities of citizens of the United States.”
It must be stated that in 1983 the UK parliament did away with the concept of “jus soli”.
India is another country which utilized this concept with its citizenship act of 1955 however with the amendment of 1986 it did away the principle.
Jus sanguine
The principle of jus sanguine means in literal translation as “law of the blood” which is basically citizenship through parental heritage. Meaning that any person born of the citizen of that state can apply for citizenship. Many states like France in early 19th and 20th century did away with jus soli and adopted this form of citizenship.
Pakistan Law
With the principles of citizenship stated let us turn to Pakistan and its law of citizenship.
Citizenship is governed by the Pakistan Citizenship Act 1951
The Act itself is placed on 23 sections which govern the citizenship of all citizens.
I will reproduce a few sections that will cover our discussion.
2.1 'Alien' means a person who is not citizen of Pakistan or a Commonwealth citizen
3.0 Citizenship at the date of commencement of this Act
.—
At the commencement of this
Act every person shall be deemed to be a citizen of Pakistan:-
(a)
who or any of whose parents or grandparents was born in the territory now included
in Pakistan and who after the fourteenth day of August, 1947, has not been
permanently resident in any country outside Pakistan; or
(b)
who or any of whose parents or grandparents was born in the territories included in
India on the thirty-first day of March, 1973, and who, except in the case of a person
who was in the service of Pakistan or of any Government or Administration in
Pakistan at the commencement of this Act, has or had his domicile within the
meaning of Part II of the Succession Act, 1925, as in force at the commencement of
this Act, in Pakistan or in the territories now included in Pakistan;
Or
(c)
Who is a person naturalized as a British subject in Pakistan; and who, if before the
date of the commencement of this Act he has acquired the citizenship of any foreign
State, has before that date renounced the same by depositing a declaration in
writing to that effect with an authority appointed or empowered to receive it; or
(d)
Who before the commencement of this Act migrated to the territories now Included
in Pakistan from any territory in the Indo-Pakistan sub-continent outside those
territories with the intention of residing permanently in those
territories.Provis
mitted
by the Pakistan Citizenship Act, V of 1952, and Section
3.
4.0 Citizenship by birth
.—
Every person born in Pakistan after the commencement of this Act
shall be a citizen of Pakistan by birth:
Provided that
a person shall not be such a citizen by virtue of this section if at the time of
his birth: --
(a)
his father possesses such immunity from suit and legal process as is accorded to an
every of an external sovereign power accredited in Pakistan and is not a citizen of
Pakistan; or
(b)
His father is an enemy alien and the birth occurs in a place then under occupation
by the enemy
Now Pakistan recognizes the following forms of naturalization and citizenship which are
· Section 4 which is citizenship by birth
· Section 5 which is citizenship by descent
· Section 6 which is citizenship by migration
· Section 9 through naturalization and section 10 through marriage of a Pakistani Male to a Pakistani women. Not vice versa.
Now section 3.a states that every person born on the soil of Pakistan or if his father or grandfather were born on the soil of Pakistan will be considered a citizens of Pakistan and in accordance to the constitution will be granted all rights of a citizen of Pakistan.
Now many would state that the Act states this and as such all Bengalis or Afghans or anybody born on the soil of Pakistan would automatically get citizenship since Pakistan follows JUS SOLI.
Yet then why have they been not given such citizenship. To know this we will look into the case laws which have interpreted this law and how this interpretation affects and how this law affects refugees.
I will first look into a case placed before Islamabad High Court in 2017 titled Saeed abidi mehmood vs NADRA
FACTS
The petitioner filed instant petition seeking relief stating that he was born in Pakistan and had studied in Pakistan and was studying Law in Pakistan and upon reaching the age of 18 years he had sought the national identity card which was denied by the respondents and thus was denied his constitutional rights as well the rights given to him in accordance to the citizenship act as well as in accordance to the NADRA Act section 10 which states that all citizens of Pakistan will be provided NIC. The respondent had denied the petitioner the NIC on the basis that his parents were Somalian nationals and were non-Pakistanis thus their son was not a Pakistani citizen.
JUDGMENT
The court looked into the matter and passed a judgment on the controversy which was based on the following:
· The court looked into the definition of section 4 where they placed reliance on PLD 2012 Supreme Court 501 (Ghulam Haider and others vs. Murad through Legal Representatives and others) and PLD 2012 Supreme Court 923 (Baz Muhammad Kakar and others vs. Federation of Pakistan through Ministry of Law and Justice and others) and interpreted the statute using the plain language in its simplest form. The interpretation was that the section states clearly that all persons born in Pakistan shall be deemed to be citizens of Pakistan with two exceptions i.e. when his father possesses such immunity, whereby he has not been declared citizen of Pakistan being envoy of an external sovereign power, second father is an enemy alien and birth of child occurs in place of enemy. The petitioner did not fall into the exceptions.
· The court pointed out that this Court while dealing with the question has gone through the process of determining the steps of debates and official reports of Constituent Assembly of Pakistan, in which The Pakistan Citizenship Act, 1951 was discussed and promulgated. The term Citizen has not been defined in any specific manner in the Constitution of Islamic Republic of Pakistan, 1973 although Article 260 of the Constitution provides that citizen means “a citizen of Pakistan as defined by Law”, however, Constituent Assembly of Pakistan as well as the committee at that time consciously did not provide definition of citizen in the Constitution leaving the matter to be decided by the said constitutional legislation, whereby the report of the Select Committee of the Pakistan Citizenship Bill 1950 recorded the following facts:-
“We have taken note of the following facts:
(a) that the Interim Report of the Basic Principles Committee recommends that citizenship, naturalization and aliens should be a subject matter of Laws to be made exclusively by the Central Legislature;
(b) that the Constituent Assembly, in adopting the report of the Committee on Fundamental Rights, accepted the recommendation of the Committee contained in paragraph 2 of Part 1 of the Report to the effect that, subject to their recommendation contained in paragraph 1 of Part 1 of the said Report regarding citizenship at the date of the commencement of the Constitution, acquisition and loss of the citizenship, and all other matters pertaining thereto should be within the competence of the future Legislature of Pakistan;
(c) that a Bill amending the Naturalization Act, 1926, has been introduced into the Constituent Assembly (Legislature) and will, in due course, be considered by the Assembly in that capacity;
And being of the opinion that the law relating to citizenship, naturalization and aliens should not be a part of the Constitution but should be capable of amendment in the same manner as Legislative measures which are not part of the Constitution,
Recommended that the Bill under consideration be not proceeded with in the Constituent Assembly but that a Bill to make provision for citizenship in Pakistan amended so as to conform with paragraph 1 of Part 1 of the Report of the Committee on Fundamental Rights be introduced into the Constituent Assembly (Legislature) as soon as possible.
2. The Bill was published in the Gazette of Pakistan, Extraordinary, dated the 28th September, 1950.”
9. Similarly, Khwaja Shahabuddin the then Minister for Interior, Information and Broadcasting in his speech on 09.04.1951 stated in the Constituent Assembly. Some extracts of the speech are reproduced as under:-
“Sir, the salient feature of the Bill is that citizenship at the commencement of the Bill extends to all persons who or whose parents or grandparents were born in the territories which now comprise Pakistan, but who have not migrated from it on the birth of Pakistan. This implies that persons born in this area who have since then left it, forego all claims to Pakistani citizenship. This loss of citizenship reciprocates the provisions of the Indian Constitution. The right to citizenship after the commencement of the Act shall accrue for reasons of birth, descent, migration and naturalization.
A person whose father is a Pakistani shall be a citizen of Pakistan, if his birth has occurred in a foreign country, he can be a Pakistani citizen only if his birth had been registered at a Pakistan Consulate in that country or at the nearest Pakistan Consulate, or if his father was in the service of the Government of Pakistan at the time of his birth abroad.
A person who has migrated to Pakistan from any of the territories of undivided India, shall become a citizen of Pakistan on his having a domicile of one year. The condition of domicile can be waived by the Central Government generally or in special cases. This acquisition of Citizenship extends to the wife and children of the immigrant.
Any person born in the Indo-Pakistan sub-continent but now living abroad can claim Pakistan citizenship, after a domicile of one year in Pakistan, but the Central Government have power to waive this condition of domicile in any case they deem fit. This privilege extends automatically to all those living abroad on Pakistan Passport irrespective of their period of domicile in Pakistan.
The Central Government can grant Pakistan citizenship to persons who have naturalized under the Naturalization Act of 1926. This relates to persons of foreign nationality who have ordinarily resided here for five years, have an adequate knowledge of any of the principal vernaculars notified by Government, are of good character and by taking an oath of allegiance have become naturalized.
Woman do not take after the nationality of their Pakistani husbands automatically, but only on application, except where they are themselves Commonwealth citizens. The reverse of this is also true, i.e., a Pakistani woman shall not lose her Pakistani status by marrying an alien.”
10. Similarly, on 10.04.1951 Tuesday the debate on the floor of the assembly was moved towards the final amendment of the bill in the following manner by the then Constituent Assembly:-
“Now Sir, under this Pakistani Citizenship Bill, several classes of people can acquire Pakistani citizenship by birth, by descent, by naturalization, by registration and so on and so forth.”
11. On the basis of these extracts, the Constituent Assembly passed by The Pakistan Citizenship Act, 1951, which provides five alternate paths to become citizen of Pakistan, however, a person shall be considered citizen of Pakistan upon meeting any one of the following conditions:-
1. he or she was born of Pakistani soil (Section 4); or
II. he or she was born to Pakistani parents (Section 5); or
III. he or she permanently migrated to Pakistan from any other part of Indo-Pakistan between 13th April, 1951 and 31st December, 1951 (Section 5); or
IV he or she has been granted a certificate of naturalization under Naturalization Act, 1926 (Section 9); or
V. She has married a Pakistani citizen (Section 10)
· The court was pointed to the issue of Afghan refugees where the court held that there existed a difference in its words as such that Court further confirms the said view taken in another case of Peshawar bench PLD 1999 Pesh 18 on an additional reason on the point that any person, who born in Pakistan becomes citizen of Pakistan on plain reading of section 4 of The Pakistan Citizenship Act, 1951 except the refugees, who have already taken up refuge temporarily in Pakistan and as such their stay is recognized under UNHCR. The status of refugees has to be considered under United Nations Convention 1951(came into force on 23.04.1954), which was prepared and debated in the aftermath of second world war mainly on the context of thousands of displaced people in Europe. In 1967 protocol was added to it extending definition of refugees to non-European and to people forced to seek refuge because of events took place after 1945, therefore, this Court has to go through the definition of refugees defined in the said convention, which is as follow:-
“A person who has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion and who is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence…is unable or, owing to such fear, is unwilling to return to it.” The above referred definition gives rise to certain important ingredients of term “well-founded fear of persecution”, therefore, the international convention recognized the status of refugees, although in Pakistan, there is no separate law in this regard but Pakistan being signatory to UN Convention, therefore, any person, who has been declared refugee under UNHCR in Pakistan, is entitled to equal treatment with national of the country vis-à-vis his other rights although some social services have been provided in Pakistan on government level but once a person has been declared refugee he cannot claim benefit under The Pakistan Citizenship Act, 1951 in any manner and his status cannot be converted to any other position except he has been granted freedom of movement, residence permit, protection of law and in some cases entitled for employment in private business and jobs except government authorities. He is also entitled to have medical services and right to education. Except the refugees (especially Afghan refugees) any other person who born in Pakistan shall be considered citizen of Pakistan in terms of section 4 of the act and his case has to be considered under rule 8 of The Pakistan Citizenship Rules, 1952, which reads as under:-
“8. Citizenship by birth.-(1) Any person claiming Citizenship under section 04 of the Act shall apply in form ‘B’ in duplicate to the Authorized Officer in the district where he was born or, if for any reason beyond his control, it is not possible for him to apply to such officer, to the authorized officer, in the District where he is residing at the time of making the application.
· And with that the court accepted the instant petition and ordered NADRA to provide him NIC.
COMMENTS
With the above we have come to know three things.
1. The definition of the statute in section 4 is plain and allows all citizens born in Pakistan on the principle of JUS SOLI which means if any person whose parents are non-Pakistanis is born in Pakistan then he is deemed a citizen of Pakistan.
2. That this Law cannot be applied on Afghan refugees since refugees are registered under the foreigner act and since the person as registered a refugee had attained the rights of a refugee as allotted by the state and UNHCR and the UN convention thus he is not entitled to citizenship as one seeking citizenship must either go through the process of naturalization or must be born within the soil of Pakistan.
3. The distinction was solidified by highlighting the rights of refugees and those of a citizens and how refugees by every definition are temporary of stay and this cannot be transferred into citizenship as well as the court laid down that a long stay of a foreigner in a foreign country does not automatically convert him to be a citizen of the said country unless he acquired nationality by process of law.
These three things laid down explain the law relating to citizenship as well as the right of a refugee and a foreigner.
I would like to bring forth another case law in Peshawar high court.
Ghulam Sanai vs. The Assistant Director, National Registration Office, Peshawar and another
FACTS
The petitioner contended that since his father and he himself have been living in Pakistan for a long time, proven with the provision of sale deeds of property purchased and seek to remain in Pakistan thus are entitled to citizenship and thus the revoked NIC should be reinstated. The respondent pointed out that to obtain NIC the petitioner had provided false information and when the falsity came to light, the NIC were revoked. The petitioners pointed out the section 3,4,5 of the citizenship act of 1951.
JUDGMENT
The court perused the record and afforded the judgment that Sections 4 and 5 of the Act ibid read together would provide that every person born in Pakistan after the commencement of the Act shall be a citizen of Pakistan by birth and subject to the provisions of section 3 a person born after the commencement of the Act shall be a citizen of Pakistan by descent, if his father is a citizen of Pakistan at the time of his birth. Haji Ghulam Sakhi father of the petitioner an Afghan refugee, on false information managed to obtain the National Identity Card and Pakistan Passport which have been cancelled. The petitioner and his father has also purchased immovable property at Peshawar. Their stance is that they have been living in Pakistan since long and intend to remain in Pakistan, therefore, they have become Pakistan national. Para. 2 of the rejoinder to the comments filed by the petitioner is reproduced below:-- "2. The corresponding para. 2 of the writ petition is correct. Copies of the sales deed are Annexure 'A' and 'B' to the writ petition is a proof of the fact that the father of the petitioner is living in Pakistan since long and they have the intention to remain in Pakistan." The long stay of a foreigner in a foreign country would not automatically convert him to be the citizen of that country unless he acquires the nationality by process of law. The Afghan refugees have been provided refuge in Pakistan temporarily and they being not the citizen of Pakistan are governed by the Foreigners Act, 1946 (Act XXXI of 1946) and not by the provisions of Citizenship Act which is not applicable to them. According to the definition of 'Foreigner' given in section 2(a) of the Act (XXXI of 1946), 'Foreigner means a person who is not a citizen of Pakistan' hence an Afghan refugee being a foreigner and not a citizen of Pakistan cannot be issued a National Identity Card under section 4 of the National Registration Act, 1973 (Act LVI of 1973) which can only be issued to Pakistani citizens.
COMMENTS
The court laid down the principle that in case of citizenship by descent his father must be a citizen of Pakistan and since the father was an afghan refugee and was under the law of refugees as well as the foreigners act rather than the citizenship laws and thus was not entitled to citizenship. The court also pointed out that simple longevity of stay of a foreigner does not allow him the right of citizenship unless he takes naturalization through proper legal channels.
CONCLUSION
With the above two case laws and the citizenship act it has been made clear what the Pakistan law states. Birth within the soil does indeed allow citizenship to the born but this does not extend to those registered as refugees or are defined as refugees.
With the premier statement many came to point out that the law already provides for such without taking into account that each child born of a registered refugee is also registered as such in UN and in the case of PLD1999 pesh 18 it was held that even if the father is refugee then the son cannot claim citizenship by simply an act of being born since the son too will be seen within the foreigners act this despite the fact that Pakistan citizenship does indeed work on JUS SOLI yet the refugees are not counted since they are governed by the Geneva laws of UNHCR and the foreigners act.
The premier indeed will have to pass legislation amending the citizenship laws stating that it applies to refugees yet this move will indeed lead to a greater web as such legislation will blanket all those that enter Pakistan and through birth ask for citizenship.
The case laws also bring to light that the 1.4 million registered Afghans cannot be granted citizenship through this law and thus new legislation needs to be passed changing the law.
And what of the unregistered ones. The illegal aliens. The foreigners act covers this that such illegal aliens who have not been provided with the permission to reside within Pakistan are deported as such unless they register themselves through the entity called the “alien registration authority” furthermore the federal government indeed has the power under section 3 to make orders but these orders are heavily defined with concerning time of stay or area of stay as such and not with citizenship.
With that the current scenario and laws the legal and registered refugees cannot be naturalized as citizens and the unregistered ones can either be deported or registered and allowed to stay where upon registration they will be seen as refugees and thus cannot be naturalized as citizens.
The premier has to pass a legislation for this to work which would require amendments which can open doors for refugees all over to naturalize themselves…
To make such bold statements and bold steps (whether wrong or right it is a bold step) one must understand the current laws that are in place and governing the refugees before such steps can be taken. The ripples of such legislation and steps will be felt all over Pakistan and so before we enter the stage of what can be done and what must be done, we must understand what is being done right now.
This article is meant to help many of us understand the way naturalization works in our country so that the discussion can begin with this basic understanding.
I apologize for any grammatical mistakes the article may include.
@That Guy @Slav Defence @Zibago @Indus Pakistan @Horus
The premier Imran Khan on his first visit to Karachi gave a fiery speech worthy of oratory skill which encompassed issues like dams to deforestation. Among those issues he brought forward another issue which is faced by Bengali and afghan migrants/refugees which is citizenship. In plain words he stated that their condition is worsening by the day and the law and order situation such poverty can create must be avoided and the constant limbo they find themselves in must be answered and for this, in bold words that raised many eyebrows, he stated that he would provide citizenship for all children born in Pakistan.
This brought forward an issue in limelight that has been in limbo. What is Pakistan going to do about these aliens which inhabit nearly every district of Pakistan? According to the premier his administration will look to make their children at least Pakistani citizens.
This had, of course, the expected reaction. Many condemned this move and many hailed this move. The Social media and media landscape is slowly filling itself with arguments detailing both pro and cons. However among these arguments many have taken to legal interpretations with many claiming that this will require a bill to amend the current laws of citizenship and many stating that such law already exists and all that awaits is its interpretation.
In this article I would like to bring to light the points and arguments of both sides and how both are wrong and right at the same. To do this we will look into the acts and the case laws that have passed their judgments upon such matters.
In my view citizenship is a grand step that must be taken with complete understanding of the social and economic conditions and requirements of the state yet we must also not forget the legal laws of the land and what they say upon the matter any step without first taking into account the laws that govern the state will lead to a legal crisis that all governments before Imran’s have passed through one way or the other be it containing the powers of a governor general or trying to pass land reform.
CITIZENSHIP
As the arguments heats up many provide example of US and UK. In plainest terms there are two concepts and maxims that run the concept of citizenship.
Jus soli
Jus soli is a Latin term that means ‘Law of the soil’ which is taken as citizenship of any person born into the soil of the state. This form of citizenship concept found itself in UK, an empire that spanned from Asia to the Americas. Thus the citizenship law of UK stated that any person born within the domain of the British Empire would be the citizen of the empire. This was attached to another maxim “protectionem trahit subjectionem, et subjection protectionem” which meant all persons born within the King’s allegiance and subject to his protection. This concept was also adopted by the US law of citizenship and enshrined within the 14th amendment. The principle of “jus soli” was recognized by the United States Supreme Court in the decision announced in 1898 in case 169 U.S. 649 (1898) (United States vs. Wong Kim Ark.), whereby the majority opinion authored by Justice Gray stated as under:-
“The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called “ligealty,” “obedience,” “faith,” or “power” of the King. The principle embraced all persons born within the King’s allegiance and subject to his protection. Such allegiance and protection were mutual—as expressed in the maxim protection trahit subjectionem, et subjection protectionem – and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King’s dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King…
The case of Dred Scott laid the foundations for such citizenship laws.
the 14th amendment is reproduced as under:-
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No State shall make or enforce any law which shall abridge [deprive] the privileges or immunities of citizens of the United States.”
It must be stated that in 1983 the UK parliament did away with the concept of “jus soli”.
India is another country which utilized this concept with its citizenship act of 1955 however with the amendment of 1986 it did away the principle.
Jus sanguine
The principle of jus sanguine means in literal translation as “law of the blood” which is basically citizenship through parental heritage. Meaning that any person born of the citizen of that state can apply for citizenship. Many states like France in early 19th and 20th century did away with jus soli and adopted this form of citizenship.
Pakistan Law
With the principles of citizenship stated let us turn to Pakistan and its law of citizenship.
Citizenship is governed by the Pakistan Citizenship Act 1951
The Act itself is placed on 23 sections which govern the citizenship of all citizens.
I will reproduce a few sections that will cover our discussion.
2.1 'Alien' means a person who is not citizen of Pakistan or a Commonwealth citizen
3.0 Citizenship at the date of commencement of this Act
.—
At the commencement of this
Act every person shall be deemed to be a citizen of Pakistan:-
(a)
who or any of whose parents or grandparents was born in the territory now included
in Pakistan and who after the fourteenth day of August, 1947, has not been
permanently resident in any country outside Pakistan; or
(b)
who or any of whose parents or grandparents was born in the territories included in
India on the thirty-first day of March, 1973, and who, except in the case of a person
who was in the service of Pakistan or of any Government or Administration in
Pakistan at the commencement of this Act, has or had his domicile within the
meaning of Part II of the Succession Act, 1925, as in force at the commencement of
this Act, in Pakistan or in the territories now included in Pakistan;
Or
(c)
Who is a person naturalized as a British subject in Pakistan; and who, if before the
date of the commencement of this Act he has acquired the citizenship of any foreign
State, has before that date renounced the same by depositing a declaration in
writing to that effect with an authority appointed or empowered to receive it; or
(d)
Who before the commencement of this Act migrated to the territories now Included
in Pakistan from any territory in the Indo-Pakistan sub-continent outside those
territories with the intention of residing permanently in those
territories.Provis
mittedby the Pakistan Citizenship Act, V of 1952, and Section
3.
4.0 Citizenship by birth
.—
Every person born in Pakistan after the commencement of this Act
shall be a citizen of Pakistan by birth:
Provided that
a person shall not be such a citizen by virtue of this section if at the time of
his birth: --
(a)
his father possesses such immunity from suit and legal process as is accorded to an
every of an external sovereign power accredited in Pakistan and is not a citizen of
Pakistan; or
(b)
His father is an enemy alien and the birth occurs in a place then under occupation
by the enemy
Now Pakistan recognizes the following forms of naturalization and citizenship which are
· Section 4 which is citizenship by birth
· Section 5 which is citizenship by descent
· Section 6 which is citizenship by migration
· Section 9 through naturalization and section 10 through marriage of a Pakistani Male to a Pakistani women. Not vice versa.
Now section 3.a states that every person born on the soil of Pakistan or if his father or grandfather were born on the soil of Pakistan will be considered a citizens of Pakistan and in accordance to the constitution will be granted all rights of a citizen of Pakistan.
Now many would state that the Act states this and as such all Bengalis or Afghans or anybody born on the soil of Pakistan would automatically get citizenship since Pakistan follows JUS SOLI.
Yet then why have they been not given such citizenship. To know this we will look into the case laws which have interpreted this law and how this interpretation affects and how this law affects refugees.
I will first look into a case placed before Islamabad High Court in 2017 titled Saeed abidi mehmood vs NADRA
FACTS
The petitioner filed instant petition seeking relief stating that he was born in Pakistan and had studied in Pakistan and was studying Law in Pakistan and upon reaching the age of 18 years he had sought the national identity card which was denied by the respondents and thus was denied his constitutional rights as well the rights given to him in accordance to the citizenship act as well as in accordance to the NADRA Act section 10 which states that all citizens of Pakistan will be provided NIC. The respondent had denied the petitioner the NIC on the basis that his parents were Somalian nationals and were non-Pakistanis thus their son was not a Pakistani citizen.
JUDGMENT
The court looked into the matter and passed a judgment on the controversy which was based on the following:
· The court looked into the definition of section 4 where they placed reliance on PLD 2012 Supreme Court 501 (Ghulam Haider and others vs. Murad through Legal Representatives and others) and PLD 2012 Supreme Court 923 (Baz Muhammad Kakar and others vs. Federation of Pakistan through Ministry of Law and Justice and others) and interpreted the statute using the plain language in its simplest form. The interpretation was that the section states clearly that all persons born in Pakistan shall be deemed to be citizens of Pakistan with two exceptions i.e. when his father possesses such immunity, whereby he has not been declared citizen of Pakistan being envoy of an external sovereign power, second father is an enemy alien and birth of child occurs in place of enemy. The petitioner did not fall into the exceptions.
· The court pointed out that this Court while dealing with the question has gone through the process of determining the steps of debates and official reports of Constituent Assembly of Pakistan, in which The Pakistan Citizenship Act, 1951 was discussed and promulgated. The term Citizen has not been defined in any specific manner in the Constitution of Islamic Republic of Pakistan, 1973 although Article 260 of the Constitution provides that citizen means “a citizen of Pakistan as defined by Law”, however, Constituent Assembly of Pakistan as well as the committee at that time consciously did not provide definition of citizen in the Constitution leaving the matter to be decided by the said constitutional legislation, whereby the report of the Select Committee of the Pakistan Citizenship Bill 1950 recorded the following facts:-
“We have taken note of the following facts:
(a) that the Interim Report of the Basic Principles Committee recommends that citizenship, naturalization and aliens should be a subject matter of Laws to be made exclusively by the Central Legislature;
(b) that the Constituent Assembly, in adopting the report of the Committee on Fundamental Rights, accepted the recommendation of the Committee contained in paragraph 2 of Part 1 of the Report to the effect that, subject to their recommendation contained in paragraph 1 of Part 1 of the said Report regarding citizenship at the date of the commencement of the Constitution, acquisition and loss of the citizenship, and all other matters pertaining thereto should be within the competence of the future Legislature of Pakistan;
(c) that a Bill amending the Naturalization Act, 1926, has been introduced into the Constituent Assembly (Legislature) and will, in due course, be considered by the Assembly in that capacity;
And being of the opinion that the law relating to citizenship, naturalization and aliens should not be a part of the Constitution but should be capable of amendment in the same manner as Legislative measures which are not part of the Constitution,
Recommended that the Bill under consideration be not proceeded with in the Constituent Assembly but that a Bill to make provision for citizenship in Pakistan amended so as to conform with paragraph 1 of Part 1 of the Report of the Committee on Fundamental Rights be introduced into the Constituent Assembly (Legislature) as soon as possible.
2. The Bill was published in the Gazette of Pakistan, Extraordinary, dated the 28th September, 1950.”
9. Similarly, Khwaja Shahabuddin the then Minister for Interior, Information and Broadcasting in his speech on 09.04.1951 stated in the Constituent Assembly. Some extracts of the speech are reproduced as under:-
“Sir, the salient feature of the Bill is that citizenship at the commencement of the Bill extends to all persons who or whose parents or grandparents were born in the territories which now comprise Pakistan, but who have not migrated from it on the birth of Pakistan. This implies that persons born in this area who have since then left it, forego all claims to Pakistani citizenship. This loss of citizenship reciprocates the provisions of the Indian Constitution. The right to citizenship after the commencement of the Act shall accrue for reasons of birth, descent, migration and naturalization.
A person whose father is a Pakistani shall be a citizen of Pakistan, if his birth has occurred in a foreign country, he can be a Pakistani citizen only if his birth had been registered at a Pakistan Consulate in that country or at the nearest Pakistan Consulate, or if his father was in the service of the Government of Pakistan at the time of his birth abroad.
A person who has migrated to Pakistan from any of the territories of undivided India, shall become a citizen of Pakistan on his having a domicile of one year. The condition of domicile can be waived by the Central Government generally or in special cases. This acquisition of Citizenship extends to the wife and children of the immigrant.
Any person born in the Indo-Pakistan sub-continent but now living abroad can claim Pakistan citizenship, after a domicile of one year in Pakistan, but the Central Government have power to waive this condition of domicile in any case they deem fit. This privilege extends automatically to all those living abroad on Pakistan Passport irrespective of their period of domicile in Pakistan.
The Central Government can grant Pakistan citizenship to persons who have naturalized under the Naturalization Act of 1926. This relates to persons of foreign nationality who have ordinarily resided here for five years, have an adequate knowledge of any of the principal vernaculars notified by Government, are of good character and by taking an oath of allegiance have become naturalized.
Woman do not take after the nationality of their Pakistani husbands automatically, but only on application, except where they are themselves Commonwealth citizens. The reverse of this is also true, i.e., a Pakistani woman shall not lose her Pakistani status by marrying an alien.”
10. Similarly, on 10.04.1951 Tuesday the debate on the floor of the assembly was moved towards the final amendment of the bill in the following manner by the then Constituent Assembly:-
“Now Sir, under this Pakistani Citizenship Bill, several classes of people can acquire Pakistani citizenship by birth, by descent, by naturalization, by registration and so on and so forth.”
11. On the basis of these extracts, the Constituent Assembly passed by The Pakistan Citizenship Act, 1951, which provides five alternate paths to become citizen of Pakistan, however, a person shall be considered citizen of Pakistan upon meeting any one of the following conditions:-
1. he or she was born of Pakistani soil (Section 4); or
II. he or she was born to Pakistani parents (Section 5); or
III. he or she permanently migrated to Pakistan from any other part of Indo-Pakistan between 13th April, 1951 and 31st December, 1951 (Section 5); or
IV he or she has been granted a certificate of naturalization under Naturalization Act, 1926 (Section 9); or
V. She has married a Pakistani citizen (Section 10)
· The court was pointed to the issue of Afghan refugees where the court held that there existed a difference in its words as such that Court further confirms the said view taken in another case of Peshawar bench PLD 1999 Pesh 18 on an additional reason on the point that any person, who born in Pakistan becomes citizen of Pakistan on plain reading of section 4 of The Pakistan Citizenship Act, 1951 except the refugees, who have already taken up refuge temporarily in Pakistan and as such their stay is recognized under UNHCR. The status of refugees has to be considered under United Nations Convention 1951(came into force on 23.04.1954), which was prepared and debated in the aftermath of second world war mainly on the context of thousands of displaced people in Europe. In 1967 protocol was added to it extending definition of refugees to non-European and to people forced to seek refuge because of events took place after 1945, therefore, this Court has to go through the definition of refugees defined in the said convention, which is as follow:-
“A person who has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion and who is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence…is unable or, owing to such fear, is unwilling to return to it.” The above referred definition gives rise to certain important ingredients of term “well-founded fear of persecution”, therefore, the international convention recognized the status of refugees, although in Pakistan, there is no separate law in this regard but Pakistan being signatory to UN Convention, therefore, any person, who has been declared refugee under UNHCR in Pakistan, is entitled to equal treatment with national of the country vis-à-vis his other rights although some social services have been provided in Pakistan on government level but once a person has been declared refugee he cannot claim benefit under The Pakistan Citizenship Act, 1951 in any manner and his status cannot be converted to any other position except he has been granted freedom of movement, residence permit, protection of law and in some cases entitled for employment in private business and jobs except government authorities. He is also entitled to have medical services and right to education. Except the refugees (especially Afghan refugees) any other person who born in Pakistan shall be considered citizen of Pakistan in terms of section 4 of the act and his case has to be considered under rule 8 of The Pakistan Citizenship Rules, 1952, which reads as under:-
“8. Citizenship by birth.-(1) Any person claiming Citizenship under section 04 of the Act shall apply in form ‘B’ in duplicate to the Authorized Officer in the district where he was born or, if for any reason beyond his control, it is not possible for him to apply to such officer, to the authorized officer, in the District where he is residing at the time of making the application.
· And with that the court accepted the instant petition and ordered NADRA to provide him NIC.
COMMENTS
With the above we have come to know three things.
1. The definition of the statute in section 4 is plain and allows all citizens born in Pakistan on the principle of JUS SOLI which means if any person whose parents are non-Pakistanis is born in Pakistan then he is deemed a citizen of Pakistan.
2. That this Law cannot be applied on Afghan refugees since refugees are registered under the foreigner act and since the person as registered a refugee had attained the rights of a refugee as allotted by the state and UNHCR and the UN convention thus he is not entitled to citizenship as one seeking citizenship must either go through the process of naturalization or must be born within the soil of Pakistan.
3. The distinction was solidified by highlighting the rights of refugees and those of a citizens and how refugees by every definition are temporary of stay and this cannot be transferred into citizenship as well as the court laid down that a long stay of a foreigner in a foreign country does not automatically convert him to be a citizen of the said country unless he acquired nationality by process of law.
These three things laid down explain the law relating to citizenship as well as the right of a refugee and a foreigner.
I would like to bring forth another case law in Peshawar high court.
Ghulam Sanai vs. The Assistant Director, National Registration Office, Peshawar and another
FACTS
The petitioner contended that since his father and he himself have been living in Pakistan for a long time, proven with the provision of sale deeds of property purchased and seek to remain in Pakistan thus are entitled to citizenship and thus the revoked NIC should be reinstated. The respondent pointed out that to obtain NIC the petitioner had provided false information and when the falsity came to light, the NIC were revoked. The petitioners pointed out the section 3,4,5 of the citizenship act of 1951.
JUDGMENT
The court perused the record and afforded the judgment that Sections 4 and 5 of the Act ibid read together would provide that every person born in Pakistan after the commencement of the Act shall be a citizen of Pakistan by birth and subject to the provisions of section 3 a person born after the commencement of the Act shall be a citizen of Pakistan by descent, if his father is a citizen of Pakistan at the time of his birth. Haji Ghulam Sakhi father of the petitioner an Afghan refugee, on false information managed to obtain the National Identity Card and Pakistan Passport which have been cancelled. The petitioner and his father has also purchased immovable property at Peshawar. Their stance is that they have been living in Pakistan since long and intend to remain in Pakistan, therefore, they have become Pakistan national. Para. 2 of the rejoinder to the comments filed by the petitioner is reproduced below:-- "2. The corresponding para. 2 of the writ petition is correct. Copies of the sales deed are Annexure 'A' and 'B' to the writ petition is a proof of the fact that the father of the petitioner is living in Pakistan since long and they have the intention to remain in Pakistan." The long stay of a foreigner in a foreign country would not automatically convert him to be the citizen of that country unless he acquires the nationality by process of law. The Afghan refugees have been provided refuge in Pakistan temporarily and they being not the citizen of Pakistan are governed by the Foreigners Act, 1946 (Act XXXI of 1946) and not by the provisions of Citizenship Act which is not applicable to them. According to the definition of 'Foreigner' given in section 2(a) of the Act (XXXI of 1946), 'Foreigner means a person who is not a citizen of Pakistan' hence an Afghan refugee being a foreigner and not a citizen of Pakistan cannot be issued a National Identity Card under section 4 of the National Registration Act, 1973 (Act LVI of 1973) which can only be issued to Pakistani citizens.
COMMENTS
The court laid down the principle that in case of citizenship by descent his father must be a citizen of Pakistan and since the father was an afghan refugee and was under the law of refugees as well as the foreigners act rather than the citizenship laws and thus was not entitled to citizenship. The court also pointed out that simple longevity of stay of a foreigner does not allow him the right of citizenship unless he takes naturalization through proper legal channels.
CONCLUSION
With the above two case laws and the citizenship act it has been made clear what the Pakistan law states. Birth within the soil does indeed allow citizenship to the born but this does not extend to those registered as refugees or are defined as refugees.
With the premier statement many came to point out that the law already provides for such without taking into account that each child born of a registered refugee is also registered as such in UN and in the case of PLD1999 pesh 18 it was held that even if the father is refugee then the son cannot claim citizenship by simply an act of being born since the son too will be seen within the foreigners act this despite the fact that Pakistan citizenship does indeed work on JUS SOLI yet the refugees are not counted since they are governed by the Geneva laws of UNHCR and the foreigners act.
The premier indeed will have to pass legislation amending the citizenship laws stating that it applies to refugees yet this move will indeed lead to a greater web as such legislation will blanket all those that enter Pakistan and through birth ask for citizenship.
The case laws also bring to light that the 1.4 million registered Afghans cannot be granted citizenship through this law and thus new legislation needs to be passed changing the law.
And what of the unregistered ones. The illegal aliens. The foreigners act covers this that such illegal aliens who have not been provided with the permission to reside within Pakistan are deported as such unless they register themselves through the entity called the “alien registration authority” furthermore the federal government indeed has the power under section 3 to make orders but these orders are heavily defined with concerning time of stay or area of stay as such and not with citizenship.
With that the current scenario and laws the legal and registered refugees cannot be naturalized as citizens and the unregistered ones can either be deported or registered and allowed to stay where upon registration they will be seen as refugees and thus cannot be naturalized as citizens.
The premier has to pass a legislation for this to work which would require amendments which can open doors for refugees all over to naturalize themselves…
To make such bold statements and bold steps (whether wrong or right it is a bold step) one must understand the current laws that are in place and governing the refugees before such steps can be taken. The ripples of such legislation and steps will be felt all over Pakistan and so before we enter the stage of what can be done and what must be done, we must understand what is being done right now.
This article is meant to help many of us understand the way naturalization works in our country so that the discussion can begin with this basic understanding.
I apologize for any grammatical mistakes the article may include.
@That Guy @Slav Defence @Zibago @Indus Pakistan @Horus
