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Citizenship Laws of Pakistan: A Critical Review
Abstract
Citizenship is considered a fundamental right that guarantees every other right. Citizenship law of Pakistan was enacted in 1951 and took care of the situations that could presumably arise with respect to this right. The changes in geography, technology and demography as well as the evolution of international law on citizenship during almost seven decades have created certain gaps that may have implications for individuals and their rights might be at stake. Varying interpretations of the courts on certain dimensions of law as well as the failure to introduce the modifications suggested by superior judiciary are among the factors that cause concerns. Along with the Citizenship Act and the law for naturalization, the treatment of foreigners in the country too has certain serious shortcomings that may have severe implications. This paper focuses more on the statutes and their current interpretation. It underscores the significance of the right to citizenship and analyzes various scenarios for acquisition of citizenship, its loss, the status of foreigners and judgements under Pakistani citizenship laws.
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Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge: Cambridge University Press, 2004), 1-6.
For a contemporary discussion on citizenship right, theories, and transforming concepts see: Herman R. Van Gunsteren, A Theory of Citizenship: Organizing Plurality in Contemporary Democracies (New York: Routledge, 2018).
In some contexts, citizenship and nationality can be two different legal concepts. In the former Soviet Union for example, while citizenship reflected a political status, the term nationality referred to membership of the same ethnic or linguistic group. Despite these differences in certain contexts, the terms nationality and citizenship are commonly used to denote a legal bond between a state and an individual and are therefore used interchangeably.
Nottebohm Case (Liechtenstein v. Guatemala) (second phase), [1955], I.C.J. 4, http://www.icj-cij.org/docket/files/18/2674.pdf.
Pakistan is a state party to all major international human rights instruments, including the International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR), Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (CAT), Convention on the Rights of the Child (CRC), Convention on the Rights of Persons with Disabilities (CRPD), International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Pakistan is also a party to the Covenant on the Rights of the Child in Islam (CRCI).
‘Withdrawal of nationality’ is used in this paper in a broad sense to refer to both automatic ex lege (by operation of law) and non-automatic (withdrawal initiated by the State authorities) loss and deprivation of nationality.
Nationality Decrees Issued in Tunis and Morocco, Advisory Opinion 4, [1923], PCIJ, http://www.refworld.org/docid/44e5c9fc4.html.
Article 260 of the Constitution of Pakistan, 1973 states, ‘citizen means a citizen of Pakistan as defined by law.‘
Umar Ahmad Ghumman v. Government of Pakistan and Others, [2002] PLD 521 (Lah.).
Pakistan has not acceded to the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness. However, it is a Party to The Hague Convention on Certain Questions relating to the Conflict of Nationality Laws, 1930 and the Protocol relating to a Certain Case of Statelessness of 1930 by succession from British India. Pakistan has also signed the 1957 Convention on the Nationality of Married Women in 1958, but has not ratified it.
Automatic modes are those where a change in nationality status takes place by operation of law (ex lege). According to automatic modes, nationality is acquired as soon as criteria set forth by law are met, such as birth on a territory or birth to nationals of a State. By contrast, in non-automatic modes an act of the individual or a State authority is required before the change in nationality status takes place.
National Database and Registration Authority Ordinance of 2000, No. Vlll, Sec. 10 (2000).
See the original wording of the law for more details.
Muhammad Umar v. Federation of Pakistan, PLD [2017] 585 (Sindh); and ICTA, “Activation of Blocked CNIC,” Islamabad Capital Territory Administration, accessed December 23, 2019, https://ictadministration.gov.pk/services/information-desk-block-cnic/.
Sardar Muhammad Ali v. Pakistan, [1961] PLD 88 (Kar.).
The term ‘enemy alien’ has been defined in section 2(d) of the Protection of Pakistan Act 2014 as a person who fails to establish his citizenship of Pakistan and is suspected to be involved in waging of war or insurrection against Pakistan or depredation on its territory by virtue of involvement in scheduled offences.
Ghulam Sanai v. Assistant Director, National Registration Office, [1999] PLD 18 (Pesh.).
Saeed Abdi Mehmud v. NADRA, [2018] CLC 1588 (Pak.).
Muhammad Munir, Precedent in Pakistani Law (Karachi: Oxford University Press, 2014), 154.
Directorate General of Immigration & Passport, Ministry of Interior, GoP, “Immigration” (Government of Pakistan, n.d.), accessed December 15, 2019, http://www.dgip.gov.pk/Files/Immigration.aspx.
Ibid.
Section 5, proviso (a) of PCA 1951 does not specifically refer to the rule 21 of PCR 1952, and vice versa. However, it is assumed that as rule 21 provides for rules for birth registration abroad in general, it is applicable to birth registration under section 5 proviso (a). Second generation children automatically acquire citizenship at birth by descent, regardless of whether their birth is registered with a Pakistani Mission or Consulate. However, failure to register birth for these second generation children can also lead to loss of Pakistan's citizenship.
Pakistan Citizenship Rules of 1952, Rule 21 (aa), (1952).
Directorate General of Immigration & Passport, Ministry of Interior, GoP, “Citizenship by Descent” (Government of Pakistan, n.d.), accessed December 15, 2019, http://www.dgip.gov.pk/files/Immigration.aspx.
Section 2 of PCA 1951, ‘Indo-Pak subcontinent’ means India as defined in the Government of India Act, 1935 as originally enacted. According to the said Act, India means British India together with all territories of any Indian ruler under the suzerainty of His Majesty, all territories under the suzerainty of such Indian ruler, the tribal areas and any other territories, which his majesty in council may declare to be part of India.
Abdul Majeed and another v. S.H.O Police Station Naulakha, [1989] PLD 223, (Lah.).
While section 3 of NA 1926 clearly states that ‘The Federal Government may grant a certificate of naturalization to any person…,‘ officials of the DGIP maintained that only citizens of non-Commonwealth countries could apply for a certificate of naturalization. Citizens of Commonwealth countries are not eligible to apply for a certificate of naturalization under NA 1926, rather they are covered under PCA 1951.
Any person who has not reached the age of 21 years is a minor as per section 2(c) of NA 1926.
Principal vernaculars of Pakistan are: Urdu as National language, English for official purposes until arrangements are made for its replacement by Urdu (Article 251 of the 1973 Constitution).
Naturalization Act of 1926, No. VII, Sec. 3 (1926).
Naturalization Act of 1926, No. VII, Sec. 5(3), (1926).
Naturalization Act of 1926, No. VII, Sec. 5(1), (1926).
Section 2 (j) of the Registration of Foreigners Rules, 1966 defines residence as ‘… ordinary dwelling place in Pakistan.‘
Ghulam Sanai v. Assistant Director, National Registration Office, Peshawar, [1999] PLD 18 (Pesh.).; and Saeed Abdi Mehmud v. NADRA, [2018] CLC 1588 (Pak.).
Glossary on Migration, IOM International Organization for Migration. Irregular migration has been defined as: ‘Movement that takes place outside the regulatory norms of the sending, transit and receiving countries. There is no clear or universally accepted definition of irregular migration. From the perspective of destination countries, it is illegal entry, stay or work in a country, meaning that the migrant does not have the necessary authorization or documents required under immigration regulations to enter, reside or work in a given country. From the perspective of the sending country, the irregularity is for example seen in cases in which a person crosses an international boundary without a valid passport or travel document or does not fulfil the administrative requirements for leaving the country. There is, however, a tendency to restrict the use of the term “illegal migration” to cases of smuggling of migrants and trafficking in persons.‘
According to DGIP, this provision applies to any foreign woman who is married to a Pakistani national irrespective of whether she is his only wife or one of multiple wives.
Directorate General of Immigration & Passport, Ministry of Interior, GoP, “Grant of Citizenship” (Government of Pakistan, n.d.), accessed December 15, 2019, http://www.dgip.gov.pk/files/Immigration.aspx.
Suo Moto Case No.1/K, [2006] PLD 2008 FSC 1.
The term Sunnah refers to the practice and example of the Prophet Muhammad (peace be upon him).
Suo Moto Case No.1/K, [2006] PLD 2008 FSC 1.
Ibid.
Mst. Rukhsana Bibi v. Government of Pakistan, [2016] PLD 857 (Lah.).
Section 3 of NA 1926 limits naturalization to a person who is ‘not a minor.‘ Section 11 offers an avenue for non-national minors to acquire Pakistani citizenship.
The wording of section 11 (‘registration’ ‘as citizens‘) appears to relate to non-automatic mode of acquisition of citizenship. It is at least clear thus that this section would not be relevant to the sections providing for automatic modes of acquisition of citizenship such as section 3 (citizenship at the commencement of the Act), 4 (by birth in the territory) and 5 (by descent).
Directorate General of Immigration & Passport, Ministry of Interior, GoP, “Grant of Citizenship.”
Currently, Pakistan explicitly allows dual citizenship with Australia, Belgium, Canada, Egypt, France, Holland/Netherland, Iceland, Italy, Jordan, New Zealand, Sweden, Switzerland, Syria, UK, USA and Ireland.
Umar Ahmad Ghumman v. Government of Pakistan and Others, [2002] PLD 521 (Lah.).
It is not clear from the judgement whether the court requires that the person making such a declaration needs to produce evidence for having acquired another citizenship. However, based on section 14-A of the Citizenship Act, he would have to ‘satisfy the Government of Pakistan he is either a citizen or national of another country or has been given any valid document assuring grant of citizenship or nationality of that country by a competent authority.‘
Aziz-ur-Rehman v. Alia Munir, [2010] YLR 269 (Lah.).
Pakistan Citizenship Act of 1951, Art. 16(2) (1951). See the international standards possibly relevant to this provision in, UNHCR, Expert Meeting - Interpreting the 1961 Statelessness Convention and Avoiding Statelessness resulting from Loss and Deprivation of Nationality (“Tunis Conclusions”), summary (United Nations High Commissioner for Refugees, 2014), para 56-60, https://www.refworld.org/docid/533a754b4.html.
Pakistan Citizenship Act of 1951, Art. 16(3), (a), (b), (c) (1951); and UNHCR, Expert Meeting - Interpreting the 1961 Statelessness Convention and Avoiding Statelessness resulting from Loss and Deprivation of Nationality (“Tunis Conclusions”), para 65-69.
The Article 8(1) of the 1961 Convention on Reduction of Statelessness sets out the basic rule that a Contracting State shall not deprive a person of his or her nationality if such deprivation renders him or her stateless. It subsequently allows for a limited set of exceptions to this rule, which should be interpreted narrowly. Although Pakistan is not a State Party to the 1961 Statelessness Convention, it offers helpful guidance in assessing the appropriateness of the deprivation provisions in PCA 1951. UNHCR's Expert Meeting Conclusions in Tunis also provides useful guidance in this regard. UNHCR, Expert Meeting - Interpreting the 1961 Statelessness Convention and Avoiding Statelessness resulting from Loss and Deprivation of Nationality (“Tunis Conclusions”).
UNHCR, Expert Meeting - Interpreting the 1961 Statelessness Convention and Avoiding Statelessness resulting from Loss and Deprivation of Nationality (“Tunis Conclusions”), para 26.
Pakistan Citizenship Act of 1951, Sec. 16 (6) (1951).
Pakistan Citizenship Act of 1951, Sec. 16 (7) (1951).
However, the letter of the Rule 25 (1)(2)(3) of the Pakistan Citizenship Rules, 1952 suggests as if the written notification and an opportunity to be heard may only apply to naturalized persons subject to deprivation under section 16(2)(3) and not to citizens in general for whom deprivation is being considered under section 16(4) (residence abroad). As noted above, no information was however available as to the actual implementation of these provisions.
Protection of Pakistan Act of 2014, Sec. 2 (d) (2014).
Ayane Odagawa, Sosuke Seki, eds., Typology of Stateless Persons in Japan, report (Tokyo: UNHCR Representation in Japan, 2017), https://www.unhcr.org/jp/wp-content/uploads/sites/34/2018/01/TYPOLOGY-OF-STATELESS-PERSONS-IN-JAPAN_webEnglish.pdf. In one such case, a couple and their child with Pakistani nationality applied for naturalization in Japan and renounced their Pakistani nationality based on an instruction by a legal affairs bureau in Japan. However, on knowing further facts about the applicant, application was denied and the whole family became stateless.
UNHCR, Expert Meeting - Interpreting the 1961 Statelessness Convention and Avoiding Statelessness resulting from Loss and Deprivation of Nationality (“Tunis Conclusions”), para 32. Also, x Convention on the Reduction of Statelessness of 1961, Sec. 2 (d) (1961).
Umar Ahmad Ghumman v. Government of Pakistan and Others, [2002] PLD 521 (Lah.).
Sumit Sen, “Stateless Refugees and the Right to Return: The Bihari Refugees of South Asia-Part I,” International Journal of Refugee Law 11 No. 4 (1999): 625-645 (626), http://www.mcrg.ac.in/Statelessness/Further_Readings/Stateless_Refugees_Part1.pdf.
Ninette Kelly, “Ideas, Interests and Institutions: Conceding Citizenship in Bangladesh,” The University of Toronto Law Journal 60, no.2 (2010): 349-371.
Sumit Sen, “Stateless Refugees and the Right to Return: The Bihari Refugees of South Asia– Part 2,” International Journal of Refugee Law 12, no. 1 (2000): 41-70,55,62, https://doi.org/10.1093/ijrl/12.1.41. The number of those registered with ICRC varies between literatures. For example, Khalid Hussain mentions 539,669. Khalid Hussain, “The End of Bihari Statelessness,” Forced Migration Review, no. 32 (2009): 30.
Ibid. The number of those who repatriated to Pakistan with ICRC's facilitation varies between literatures. Khalid Hussain, “Inhuman Camp Life of Bihari Urdu Speaking Linguistic Minority of Bangladesh,” Bangladesh Universal Periodic Review, 2012, https://lib.ohchr.org/HRBodies/UPR/Documents/Session16/BD/JS5_UPR_BGD_S16_2 013_Jointsubmission5_E.pdf.
Iqthyer Uddin Md Zahed, “A Theoretical Analysis of Stranded Biharis in Bangladesh: Seeking for Nationality since Decades,” International Journal of Advanced Research 1, no. 6 (2013): 429-435, www.journalijar.com/uploads/2013-09-03_152846_261.pdf.
Qutbuddin Aziz, Blood and Tears (Karachi: United Press of Pakistan, 1974).
It is not clear what ‘domiciled’ in East Pakistan means in this context. It may refer to those who had obtained a certificate of domicile (as provided under section 17 of PCA 1951) in East Pakistan, however, considering that the acquisition of a formal certificate of domicile was assumingly not very common at the time, it could generally refer to persons who had a permanent residency in East Pakistan (see more information relating to the nature of certificate of domicile below).
Pakistan Citizenship (Amendment) Ordinance of 1978, Sec. 1(2) (1978).
Certificate of citizenship of Pakistan from a person of former East Pakistani domicile residing in Pakistan, or in a foreign country [under Rule 13A(1)(i) of Citizenship Rules, 1952 and section 16A sub-section (1), Citizenship Act, 1951 is issued in Form E-1; Certificate of citizenship to a former East Pakistani residing in Pakistan since 16 December 1971, repatriated thereafter /cleared for repatriation to Pakistan vide Rule 13A (1) (iv) of the Pakistan Citizenship Rules, 1952 which corresponds to clause (iii) and clause (iv) of sub-section (1) of section 16A of PCA 1951 is issued in Form E-2. Certificate of citizenship vide Rule 13A (2) (iv) of the Pakistan Citizenship Rules, 1952 which corresponds to clause sub-section (2) of section 16A of PCA 1951 is issued in Form E-4.
ICTA, “Activation of Blocked CNIC.”
Abdul Majeed and Another v. S.H.O Police Station Naulakha, [1989] PLD 223, (Lah.).
Foreigners Act of 1946, Sec. 14 (1) and (2) (1946).
Foreigners Act of 1946, Sec. 14-C (1946). However, such prolonged detention has to be approved by the Federal Review Board constituted under Article 10 (4) (i) of the Constitution of Pakistan, which is appointed by the Chief Justice of Pakistan and composed of a Chairman and two other persons, each current or previous judges of the Supreme Court or a High Court. If a person is detained under a provincial law, a Board is appointed by the Chief Justice of the concerned High Court, which consists of a Chairman and two other persons, each current or previous judges of a High Court.
UNHCR, Handbook on Protection of Stateless Persons: Under the 1954 Convention Relating to the Status of Stateless Persons, para 25 and 26 (Geneva: United Nations High Commissioner for Refugees, 2014), https://www.unhcr.org/protection/statelessness/53b698ab9/handbook-protection-stateless-persons.html.
Foreigners Act of 1946, Sec. 14 -A (1946)
Foreigners Act of 1946, Sec. 14-C (1946).
Muhammad Noorullah Kabir v. The State, [2008] MLD 916 (Kar.).
Saeed Abdi Mehmud v. NADRA, [2018] CLC 1588 (Pak.).