Article 25 of our Constitution underlines the equality of all citizens. It holds that ‘all citizens are equal before the law and are entitled to equal protection of law; there shall be no discrimination on the basis of sex’.
Since February 1996, Pakistan is also a state party to the Convention on the Elimination of all forms of Discrimination against Women (CEDAW). Cedaw stresses the need for all state parties ‘to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women’.
Similarly, Pakistan which ratified the United Nations Convention on the Rights of Child (UNCRC) on November 12, 1990, is obliged to respect and ensure the rights set forth by the Convention.
Pakistani citizenship laws allow a foreign woman to get Pakistani citizenship after marrying a Pakistani man but not vice versa. These laws provided a special procedure for a man who is a Pakistani national to apply for his foreign national wife’s citizenship, but it does not explicitly recognise the same right for a Pakistani woman to apply for the citizenship of her foreign national husband.
The Government of Pakistan failed to amend Section 10 of the Pakistan Citizenship Act 1951 which has been declared discriminatory, unconstitutional and repugnant to the injunctions of Islam by the Federal Shariat Court.
This biased law has also been widely criticised by human rights organisations and activists, because it is discriminatory in nature and contradictory to the spirit of ‘equality’ protected by the Constitution.
Many Afghan nationals who lived in Pakistan married Pakistani nationals. Now that the repatriation phase has begun, issues over citizenship and identity have emerged. The affected also include Pakistani women who are married to Afghan nationals.
Ms Seemi Khan, a resident of District Charsadda, is the mother of three children and her husband is an Afghan national. She does not enjoy the right to apply for the citizenship of her husband due to the discriminatory nature of our laws. Her husband has been repatriated to Afghanistan, and he does not have the legal documents required to visit his family in Pakistan. Seemi has been forced to abandon her country to meet her husband in Afghanistan.
On April 18, 2000, through Ordinance No. xiii the Pakistan Citizenship Act 1951 was amended. After the amendment in Section 5, a person whose either parent is a Pakistan national is eligible to apply for Pakistani Citizenship. The same is the requirement for NADRA’s Child Registration Certificate (CRC).
NADRA is issuing CRC to all children born after 18.04.2000with one parent who is a Pakistani citizen, but is declining CRC to all children born before this date. This happens because NADRA assumes that there is no clear cut provision for retrospective enforcement in the ‘Ordinance’.
The Government of Pakistan should not associate the issue of citizenship of foreign men married to Pakistani women with its irrational, repugnant, repulsive and discriminatory policies
NADRAofficialsclaimed that they have written to their Headquarters and the concerned ministry for the “interpretation of the Ordinance’ but still they have not heard back, which is why they are interpreting this amendment’proactively’.
Some other victims of these vague laws are Mr Wahidullah and his family, who live in Peshawar. Their deceased father was an Afghan national and their mother is a Pakistani citizen. Wahidullah, his six sisters, and three brothers are facing problems in acquiring their legal documents. Among their 9 brothers and sisters, only the youngest brother’s birth is after April 18, 2000. Here the questionover the fate of the family arises.
The government must have a policy for such cases. We do not have exact figures of the number of children born before April 18, 2000whohave one parent of Pakistani citizenship.
The country’s apex courts have ruled in several judgments that ‘remedial and curative legislation would always be retrospective in effect unless made prospective by law in clear and unambiguous terms’.
The registration of undocumented Afghan refugees will begin from July 20. NADRA, the KP Commissionerate for Afghan Refugees and the Ministry of State and Frontier Regions (Safron) are the key stakeholders in this documentation process.
This is the time for the Government to resolve this issue by involving concerned bodies including the Ministry of Interior, Ministry of Law and Justice, Ministry of Human Rights and the National Commission for Human Rights. Children born with one of their parents as a Pakistani national should be issued CRC.
The Government of Pakistan should not associate the issue of the citizenship of foreign men married to Pakistani women with its irrational, repugnant, repulsive and discriminatory policies.
It should fulfil its constitutional, legal and international obligations by amending Section 10 of the Pakistan Citizenship Act 1951 and should also clarify the ‘operation’ of the ‘Pakistan Citizenship (Amendment) Ordinance 2000’ to treat women, men and children equally, fairly and equitably.
The writer is a Peshawar-based lawyer. He tweets at s_irshadahmad.
Email: [email protected]
Published in Daily Times, July 19th , 2017.