The state of statelessness: Why Pakistan’s move to expel refugees is unjust

“No one leaves home,” the British-Somali poet Warsan Shire recently wrote, “unless home is the mouth of a shark.” Such words spoke to the time — of migrants washing up on beaches, as richer capitals looked away. It was also why Shire’s poem became a rallying cry for refugees, for émigrés, and for those that continue to seek sanctuary elsewhere.

For nearly half a century now, one of those sanctuaries has been Pakistan — a country that hosts among the largest refugee populations in the world.

In early October, however, the caretaker government laid down an ultimatum to change that — by November 1, all “illegal immigrants” were to voluntarily leave the country. After that date, they were to be deported, their businesses and properties confiscated, and any locals facilitating them to face the law — all via a new task force.

What this meant was immediately obvious to the local press — that millions of Afghan refugees had been handed their marching orders.

In making a case for the most drastic change to immigration policy in memory, the caretakers linked Afghan nationals to the terror spike over the past year, alleging involvement in 14 of 24 attacks — from Peshawar to Qila Saifullah. Less direct accusations, but mentioned as part of the same press statements, were smuggling, black marketeering, and the drug trade.

Another reason, if left unsaid at the time, was the chill in the neighbourhood — Pakistan’s growing bitterness with a Taliban-led Kabul, which had neither cracked down on a resurgent TTP, nor arrested the wave in attacks.

Over the next several weeks, Pakistan’s state machinery roared to life — police roundups of Afghan migrants, some resident in the country for decades, ensued across the country; convoy after convoy of refugees trailed its way to Torkham, the border crossing to Afghanistan; and a staggering 3,000 to 4,000 refugees were processed per day, with over 250,000 ‘voluntary returns’ claimed so far.

Such numbers hid hurt and heartbreak. “I came to this country when I was four years old with my father,” head of the family Abdul Rasul told Al Jazeera journalist Abid Hussain at Torkham recently. “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?”

Birthright law

Abdul Rasul has every right to ask that question. From the very start, Pakistan’s founding fathers took a fairly liberal view of citizenship — as a right conferred by birth. 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 was the ageless tenet of jus soli, Latin for ‘by right of the soil’, from English common law. While moving the bill in the first Constituent Assembly, Khawaja Shahabuddin — brother of Pakistan’s governor-general Nazimuddin — went as far as to stress the point: as long as a person hadn’t migrated out of the country at Partition, “the salient feature … is that citizenship … extends to all persons who, or whose parents or grandparents, were born in the territories which now comprise Pakistan”.

It was a law that had taken some time to deliberate — the bill was mulled over in select committees, incurred legal advice, and passed from the constitution-making side of the assembly to its legislative session — a process much unlike the steamroller of more recent parliaments.

As is often with any question of citizenship, it was marked by intense debates involving Liaquat-era Muslim Leaguers, Sattar Pirzada (who fleshed out its purpose) and Mahmud Husain (who amended it line by line during passage), up against the Pakistan National Congress opposition like Dhirendra Nath Datta, who spoke up for a more generous bill.

Pricked by Datta’s criticism during the debate’s early days in 1948, prime minister Liaquat Ali Khan responded on the floor of the house: his colleagues had “made it easier for people to become citizens of Pakistan than is provided in any other country”, pointing to India’s red tape by contrast. (While the Indian comparison was technically correct, Datta’s violent end in 1971 would come to raise more profound questions about what citizenship implied.)

When the bill was passed by the assembly on April 10, 1951, it was keen on throwing the widest net possible over migrants that had made it past Partition, more or less automatically recognising all permanent residents of Pakistani territory as citizens by the end of 1951.

Others that merited the same recognition were those married to Pakistani spouses, or born to Pakistani parents (albeit, ridiculously, not just the mother, until an amendment in 2000). As for citizenship by birth, it was excluded only for children of foreign diplomats, or those of enemy aliens in occupied territory. “Pakistan welcomes everyone who wants to come and make Pakistan his home,” said Liaquat, “but at the same time it lays down the condition that he must owe allegiance to Pakistan, and Pakistan alone.”

Citizenship wars

Save for some pushes and pulls, this system stayed in place until the 1970s — a decade bookended by wars that would spell vast changes for what it meant to be Pakistani — the secession of Bangladesh in 1971, and the Soviet invasion of Afghanistan in 1979.

With the end of a united country, state lawyers tasked with cleaning up East Pakistan’s blood-sodden exit from the federation put in a curt amendment in the PCA in 1978: all those that had chosen to stay on after December 16, 1971 — the day Dhaka fell — “shall cease to be citizens of Pakistan”. Thus, the country’s onetime majority was erased from the books of law for good.

And not without vast human consequences: hundreds of thousands of Urdu-speaking Biharis, loyal to Pakistan, were left stranded in Bangladesh. Strikingly, these included those Biharis who had rejected the offer of Bangladeshi citizenship, registering instead with the International Committee of the Red Cross, and holding out for return — they remain camped in sickening conditions to this day.

“Our only crime was to side with Pakistan during its darkest hours,” one 80-year-old told Refugees International in 2006. It was two years later, decades after the civil war, that a landmark ruling of the Supreme Court of Bangladesh ended the statelessness of some 300,000 Biharis.

Though their rehabilitation inches forward at a snail’s pace today, a new generation of Biharis has also come of age — one far more comfortable with the Bengali language, as well as identifying as Bangladeshi. Their loyalist parents, on the other hand, continue awaiting a winged horse from Pakistan.

All this serves to underscore Islamabad’s apathy since at least the turn of the century — the bulk of much-needed Bihari repatriations that did take place was between the tenures of archenemies Zulfikar Ali Bhutto and Ziaul Haq.

In sour contrast to Bangladesh, which was prepared to receive all 128,000 registered Bengalis left in Pakistan, Islamabad sighed it couldn’t take in the entire Bihari population. It nonetheless brought in those that qualified in three categories: that they were either previously domiciled in West Pakistan, were government employees, or belonged to divided families. Yet others arrived illegally, for a rough total of 178,069 repatriations by 1993 per the International Journal of Refugee Law — in sum, a minority of the minority.

Other premiers were less sympathetic — Benazir Bhutto referred to the issue of ‘stranded Biharis’ — and not ‘stranded Pakistanis’ — as a complicated one, amid reports of her shrugging them off to Dhaka for resettlement; Shaukat Aziz echoed the same words in his day.

Finally, the Nawaz Sharif government washed its hands of the whole affair in its third stint: submitting to the Supreme Court that the Biharis had become citizens of Bangladesh anyway, while also citing the 1978 amendment to the PCA that meant all those Biharis that hadn’t migrated to Pakistan after Dhaka’s fall (even if involuntarily so) ceased to be Pakistanis. Justice Saqib Nisar didn’t disagree.

The double jeopardy was plain — while Pakistan said they had become citizens of Bangladesh, it was Bangladesh that had originally dubbed the Biharis ‘alien enemies’ aligned with Pakistan, seizing nearly all their homes, decorating them with Awami League banners, and allowing the Mukti Bahini to visit “assaults, looting, rapes, evictions, kidnappings, and killings” on their camps.

Today, Biharis remain stateless in two separate nations — considered enemy collaborators in the first, and forgotten ghosts in the second.

Afghan maze

The Bihari tragedy, an indictment of the Pakistani state, should have been lesson enough — of the need for a more humane compact with those that chose to make Pakistan their home, as well as a legal mechanism that honoured, rather than upended, such sacrifices.

That wasn’t to be. As Soviet tanks rolled into Kabul on Christmas Eve in 1979, the eyeball-melting brutality of Brezhnev’s invasion resulted in millions of refugees fleeing to Pakistan. As is well-known, the Zia regime saw the war as both the Russian bear pawing at its borders, as well as a conduit for billions of dollars from the US on the other end of the Great Game.

And yet, as declassified reports would later make apparent, Zia was more doctrinaire than initially believed — he had thrown his lot in with the jihadis well before American support was assured. “In their freedom is our freedom,” said Zia. “ … If, God forbid, the Afghans are defeated somehow, Pakistan is next.“

War, civil war, and yet another war followed next door, met at home with Soviet subversion, American drone strikes, and an all-out insurgency. Over the same decades, two generations of Afghan-origin citizens came of age in Pakistan, yet they still remain stateless today.

That so many are offered so little goes against the grain of the law itself — the PCA provides a generous regimen for naturalisation, as well as for citizenship by birth. Yet most refugee cases can avail neither.

Some of this has a history, beginning with red Kabul in the 1980s. As millions fled to Pakistan and Iran, the communist regime decided to make life more difficult for the Afghans that were voting with their feet — it enacted a new set of citizenship laws in the spring of 1986, abolishing dual nationality for the first time. This meant renouncing one’s Afghan status on taking up a green passport, which, in Afghan law stretching back to the days of the monarchy, also meant parting with one’s property.

Meanwhile, Pakistan had its own problems — as the Soviet occupation started unravelling under a hail of Stinger missiles, Islamabad reluctantly signed the Geneva Accords in 1988, long thought key to the Russian withdrawal. These included a vague bilateral agreement between the Zia junta and the communist regime in Kabul for the repatriation of around 3.5 million Afghan refugees, children too. Even here, however, the core requirement was that it be voluntary — no language was lent to those cases where a refugee just didn’t want to go back.

Yet those cases were likely in the majority. As Foreign Affairs wrote that summer, “It is not clear how millions of refugees are to be persuaded to return to live under a government they detest, reject and have fled, particularly when the most likely alternatives they would be returning to face are are either continuation of the present regime…or a state of insurrection and continuing warfare.”

This diagnosis would hold true even after the Soviets withdrew and the murderous Najibullah fell; it would hold true when the civil war between jihadis Hekmatyar and Massoud reduced Kabul to a pile of ash (with Pakistan’s military establishment backing the former); it would hold true when the Taliban seized power after lynching its enemies; and it would hold true during a wild and pointless American occupation, ending with the CIA’s child-molesting warlords surrendering to the Taliban with lightning speed all over again two decades later.

Some refugees returned. Most stayed.

Rather than meet this new reality with open arms — whether for a chance at soothing the old Pak-Afghan animus, or to just lift up those in search of a better life — Islamabad and Rawalpindi stood right where they were. Surely, all those refugees would go back to their violent homeland now, as per the Geneva Accords.

Thus the PCA fell by the wayside, however open-ended its birthright provisions. Such was the case of Ghulam Sanai, born in Peshawar to an Afghan refugee. When Sanai moved the Peshawar High Court for a National Identification Card, Justice Mian Ajmal (not to be confused with Ajmal Mian, chief justice of Pakistan), held that the provision of ‘citizenship by birth’ could not be read independently of ‘citizenship by descent’. Whether or not he was born in Peshawar, Sania had a father who was a refugee, and refugees fell under the Refugee Act of 1946, not the PCA — this exclusion somehow also knocked out his son. “The petitioner is neither a citizen,” held Justice Ajmal, “nor deemed to be a citizen under the [PCA]; therefore, he is not entitled to the issuance of [a] National Identification Card.”

This depressing outcome seems to only apply to refugees: in the case of a person born to Somali parents, Justice Mohsin Akhtar Kayani of the Islamabad High Court found for the petitioner in Saeed Abdi Mahmud vs Nadra, delinking — and correctly so — the birth provision from the descent provision.

It’s high time those of Afghan origin merit the same logic. One needn’t be a lawyer or human rights expert to see how clear Section 4 of the PCA is; given the language and plain meaning of the provision, most are free to make up their own minds.

You are indeed Pakistani if born in Pakistan.

Unless you’re a foreign diplomat’s child (who might not want it), or you’re an enemy alien’s child in occupied territory. Afghans are not ‘enemy aliens’, nor do they occupy Pakistani territory. The reason they are not extended citizenship is because of policy, not law.

Rather than apply the latter, the Peshawar High Court has legalised the former.

But for change to happen, both state and society, in addition to the courts, would have to lead the charge — nativist fears must be put in place, especially those spiced with absurd, anti-immigrant identity politics sweeping the West (where old white men rage against virile Pakistanis swarming their lawns).

As it is, though, the mood remains surly — per a recent Gallup Pakistan poll, a stunning 84 per cent of Pakistanis expressed support for the deportation policy. This is accented by local coverage, with caricatures of gun-running, drug-smuggling, sword-swinging aliens.

Nor are they accurate — the TTP’s most prominent bosses, from Baitullah to Hakimullah to Fazlullah, were all Pakistanis, born and bred. And while the insurgency was fuelled by George W Bush’s crusades in Afghanistan, its major spark was Pervez Musharraf’s siege of Lal Masjid in 2007, very much in the heart of Islamabad. As this contributor has written elsewhere, in the year since Lal Masjid, the TTP announced its formation, seven FATA agencies fell, Swat was consumed, and military and intel installations attacked for the first time.

None of this is to say that Afghans, whether residents abroad or refugees at home, can’t commit crimes in Pakistan. Nor is it to say that the Taliban takeover hasn’t worsened security this side of the Durand Line. But even the hard fact of such violence — an article of faith for some of our caretakers — doesn’t merit such an astonishing response: no punishment can be collective and just at the same time.

The right to have rights

Pakistan’s 3.7 million Afghans fall in four rough categories: there are those that hold the government’s own Proof of Registration Card (PoR); those who hold Afghan Citizen cards; a fresh spate of refugees following the Taliban’s takeover; and the unregistered.

Though it’s this fourth category that finds itself the most vulnerable, a PoR cardholder can do little more than open a bank account, and no card allows for running a business. As Mutee-ur-Rehman and Jamaima Afridi’s piece in Dawn Prism attests, such lack of status means being left completely exposed to the deportation drive — locals are refusing to repay loans to cash businesses, and refugees are having to sell off their assets at throwaway prices. Extorting an unsecured community also comes easy, given that any complaints to the police may open up the complainant to landing in jail instead — as a paperless Afghan.

Yet even those with papers are in the caretakers’ crosshairs — the Balochistan government recently revealed it would begin deporting registered refugees as well in the second phase. This curtain-opener pointed to a much more radical, and ethnocentric, set of steps than had been initially let on (though more jaded observers warned of precisely such a slippery slope from the first day).

What’s needed is the exact opposite — ensuring a dignified path to citizenship, something the PCA already provides for, and for the state to protect the most vulnerable until they are processed. This would also be in keeping with non-refoulement: the core principle of international law that forbids states from returning asylum-seekers to a country where persecution likely awaits.

Until then, the caretaker government would do well to abide by its own laws, and not drift 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. “Afghans whose children have been raised and born in Pakistan will be granted citizenship Inshallah,” said Imran. (They were not by the time his term was over.)

Then there are also progressive decisions by the superior courts — on a petition filed by Umer Ijaz Gilani, Justice Babar Sattar held that in the case of an Afghan woman fleeing for her life from the oncoming Taliban, foreigners with a claim to refugee status were entitled to the protection of fundamental rights, as well as to not be deported.

The same untiring counsel has now also filed a petition before the Supreme Court. Moved by citizens including Jibran Nasir and Farhatullah Babar, the petition aims to stop the mass deportation drive in its tracks, as well as enable the UNHCR to process all applications for asylum. The ball is now, as ever, with the Supreme Court, although it hasn’t gotten off to a very promising start.

However it decides, one fact is painfully evident — the PCA confers full rights of citizenship on those born in Pakistan. That’s how it was always meant to be, from the days of Liaquat Ali Khan. But both state policy, and judgments like the Peshawar High Court’s Sanai, actively defeat the law. Deporting those who have known no other home, and have none to go to, is cruel and unjust.

Pakistan’s treatment of the Biharis, who staked their entire lives on a sanctuary that never showed up, is now acknowledged as a historic failure. To do the same to children of Afghan origin, including those who have only ever known Pakistan, is to have learned little — the kids born here deserve better.

Per that old liberal judge Earl Warren, who knew a thing or two about the terrors of identity, “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.”

More specific to a nation, it also goes against the entire spirit of why Pakistan was born — a place where a minority, once under threat of persecution, could live and be free. How is that not exemplified by 47-year-old Khair Muhammad, stuck at Torkham, who first fled to Pakistan two years after the Soviets blasted their way out, returned to Karzai’s Afghanistan, then fled the Taliban? “Pakistan has given me a lot and shielded me twice,” he told Abid Hussain, formerly of these pages.

It must now shield him again — such has always been the promise of Pakistan, and the stakes of so many that escape to it.