December 1, 2023
ISLAMABAD – A group of academics on Thursday filed a petition in the Supreme Court challenging the government’s campaign to “en masse deport Afghans” and seeking orders to restrain law enforcement agencies from implementing the decision.
The plea, filed by six faculty members of the Lahore University of Management Sciences under Article 184(3) of the Constitution, has been fixed for hearing on Dec 1.
Article 184 (3) empowers the Supreme Court to hear cases from individuals who believe their fundamental rights have been violated and the issue is of public importance or take suo motu action (act on its own initiative).
In November, the government initiated a nationwide campaign to deport illegal foreign nationals, the majority of whom are Afghans. While the decision had prompted criticism from Afghanistan and several other quarters, the caretakers refused to budge, insisting the move was not aimed at any particular ethnic group.
Of the more than four million Afghans living in Pakistan, the government estimates 1.7m are undocumented. So far, thousands of Afghans have returned home from the Torkham and Chaman border crossings.
Earlier this month, a similar application was filed by former PPP Senator Farhatullah Babar in the apex court seeking restraining orders against the expulsion of Afghans. A three-member SC bench will decide on the maintainability of the petition tomorrow.
The latest plea filed in the SC today, a copy of which is available with Dawn.com, named the federation, all four provinces, the Islamabad chief commissioner, the chief commissioner for Afghan refugees, the National Database and Registration Authority (Nadra), the director general of Immigration and Passports and the United National High Commissioner for Afghan refugees as respondents.
It stated that the petitioners, as concerned citizens, were compelled to file the plea in the interest of underprivileged and destitute 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 government and other government authorities in the name of Pakistan.”
The application raised a number of questions of law including the principle of refoulment under international law, violation of international law and violation of fundamental rights enshrined in the Constitution.
It recalled 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 pointed 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.
“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,” the petition stated.
It highlighted that Afghans did not obtain documentation because there was no such legal requirement previously and a “proof of registration card” was introduced in 2006. However, the card had to be extended from time to time due to its temporary validity period.
The plea went on to state that the current situation of Afghan refugees persisted due to the “lack of asylum/refugee law in Pakistan”.
It 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.”
The petition highlighted that during the process of expulsion, Rs50,000 were taken from Afghan nationals at the borders while many of them were forced to abandon their homes, properties and businesses in Pakistan.
It further stated that reports showed law enforcement agencies were targeting all Afghan nations and deporting them, adding that even undocumented Afghans with confirmed refugee status would be expelled from Dec 2023.
“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,” the plea said, adding that various organisations had highlighted the same.
It also pointed out various international laws that prohibit the expulsion of aliens in circumstances where their lives would be under threat.
Highlighting the deportation of Afghan children born in Pakistan, the petition said the decision was a violation of the Citizenship Act. It added 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 said the caretaker government could not take such a decision and hence violated Section 230 of the Elections Act, 2017.
“The impugned decision is vague and arbitrary, with no rational reasons to support it. Every individual Afghan refugee, asylum seeker and alien has the right to the grounds on which they are subject to expulsion/deportation. It is apparent that the impugned decision not only lacks cogent reasons but is arbitrary and vague and should be set aside,” it said.
The plea subsequently prayed that the government’s decision to expel Afghans was “null and void” and of no legal effect for being constitutional. It added that Sections 3, 4, 9 and 14(2) of the Foreigners Act should be declared ultra vires the Constitution.
It also sought 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.
The petition added that a commission should also be formed to oversee and ensure the process was carried out fairly and justly.