Citizenship and Exclusion. Shehar Bano Khan

Transcription

1 Shehar Bano Khan

2 Title Copyrights AAWAZ AAWAZ Programme is funded by the UKAid through the Department for International Development (DFID), AAWAZ was conceived initially as a five-year programme, from 2012 to Development Alternatives Inc. (DAI) is the Management Organization (MO) for implementing the AAWAZ programme, while Pakistan s prime civil society organizations: Aurat Foundation (AF), South-Asia Partnership Pakistan (SAP-PK), Strengthening Participatory Organisation (SPO) and Sungi Development Foundation (SF) form the implementation consortium responsible for directly working with communities. All publications by AAWAZ are copyrighted, however, can be cited with reference.

3 Acronyms ANP CNIC FATA ISI JVC KP MI NADRA NIC PATA SB Awami National Party Computerised National Identity Card Federally Administrated Tribal Area Inter Services Intelligence Joint Verification Committee Khyber Pakhtunkhwa Military Intelligence National Database Registration Authority National Identity Card Provincially Administrated Tribal Area Special Branch

4 Executive Summary This paper assesses whether or not recent moves by the state to investigate the authenticity of Pakistan citizenship are being carried out under clearly defined legislative and policy guidelines. In Pakistan, citizenship is codified through the issuance of what is known as a National Identity Card (NIC) or a Computerised National Identity Card (CNIC). However, under certain circumstances, the state has the right to cancel, impound, or confiscate CNICs as per Section 18 of the NADRA Ordinance According to this clause, CNICs are the property of the Federal Government and can be rescinded by the Government through an order. However, the clause also specifies that such an order will be issued only after the concerned person, whose case is under investigation, has been given a notice in writing, and has been asked to show cause as to why such an order should not be issued. Even when the order has been issued, the affected person may, within thirty days, appeal to the Federal Government against the order, and no order can be issued against such an appeal unless the complainant has been given a hearing. As Pakistan s security situation continued to deteriorate over the past decade, successive governments attempted to crack down on illegal immigration and residency in the country. The focus has been on verifying the CNICs of individuals claiming to be citizens. To date, the National Database Registration Authority (NADRA) has blocked an estimated 100,000 CNICs. However, the issue here is that the state s process of investigation of the authenticity of CNICs does not seem to have followed the defined process. As a result, a number of people, including more than 50 cases identified in AAWAZ programme areas, are in a state of limbo as they do not have basic identification documents, and do not know when to expect a decision on their cases. Persons affected by the blocking have not been informed why their cases are under investigation, or about the due process in this regard. None of them were issued show cause notices, as required under Section 18 of the NADRA Ordinance More importantly, some of them have gone to court against NADRA s decision to block their documents, and have won their cases, prompting the court to order the authorities to rescind their decision. Yet, the decisions have not been reversed. The state possesses the right to verify the authenticity of citizenship. Nonetheless, it is required to follow due process in this regard. Further, the authorities cannot leave the affected people in limbo the issue should reach a logical conclusion, either with the cards being unblocked, or with the people being prosecuted for obtaining CNICs illegally, if this is indeed proved to be the case. The law is silent on the status of a person whose case is under 1

5 investigation. There is no alternate documentation that s/he can hold while waiting for authorities to confirm the authenticity of the CNIC. Nor is s/he entitled to expect a decision within a given timeframe. Recommendations of this study include following of NADRA s provisions, a transparent time limit on verification, adherence to the principle of innocent until proven guilty, and the citizen to have the benefit of doubt. 2

6 Citizenship and Exclusion Introduction Citizenship is defined by codes, principles, and protocols distinctly laid out in law and defined through a consecrated document, such as the constitution. The appropriation of an individual s citizenship by a nation state creates a fundamental imbalance in the social contract between the individual and the state. The assumptions of a homologous, equitable relationship in a social contract become significantly weak when either of the entities the individual or state transgresses the contractual mores. Within the constitutionally apportioned legitimacy, if a state divests an individual of citizenship, this is a serious act with significant repercussions. Such a move cannot be taken lightly, and must be carried out under clearly defined legislative and policy guidelines. This paper assesses if recent moves by the state to investigate the authenticity of Pakistan citizenship do indeed meet these conditions. Citizenship in Pakistan The Pakistan Citizenship Act 1951 (also known as Pakistan Citizenship Act 1951) was enacted on April 13, 1951 in order to make provisions for citizenship of Pakistan. The Act was amended in 1952, 1972, 1973, and Section 3 of the Act, dealing with citizenship at the date of commencement of this Act, states: At the commencement of this Act every person shall be deemed to be a citizen of Pakistan (d) who before the commencement of this Act migrated to the territories now included in Pakistan from any territory in the Indo- Pakistan subcontinent outside those territories with the intention of residing permanently in those territories. Section 4 of the Act clearly states how an individual is a citizen by birth by stipulating: Every person born in Pakistan after the commencement of this Act shall be a citizen of Pakistan by birth, except if the father is considered an enemy of the state or the father has immunity from legal process. The Citizenship Act is a clear legal document structuring an individual s legal position within the territory of Pakistan. The right to existence as a recognisable legal entity by the state is codified through the issuance of what is known as a National Identity Card (NIC). NICs were first issued in the early 1970s, under the National Registration Act of 1973, and were conceived as the key document to be used to authenticate an individual s status as a citizen of Pakistan. The original NIC has since evolved into a Computerized National Identity Card (CNIC), 3

7 which is issued by the National Database Registration Authority (NADRA), an autonomous body established in The initial application for a CNIC requires either the submission of a birth certificate, a previous NIC, a school leaving or matriculation certificate, CNICs of blood relatives, or a citizenship certificate issued by the Ministry of Interior (for those applicants who are naturalized citizens, i.e. who have acquired Pakistani nationality, although they did not possess it at birth). For residents of the Federally Administered Tribal Areas (FATA) and the Provincially Administered Tribal Areas (PATA), additional requirements have been stipulated which include attestation of CNIC application forms by a Political or Assistant Political Agent, and submission of an application at the native Data Acquisition Unit (DAU). 1 The state reserves the right to cancel, impound, or confiscate CNICs as per Section 18 of the NADRA Ordinance According to this clause, CNICs are the property of the Federal Government, and can be rescinded by the government through an order. However, the clause also specifies that such an order will be issued only after the concerned person, whose case is under investigation, has been given a notice in writing, and has been asked to show cause as to why such an order should not be issued. Even when the order has been issued, the affected person may, within thirty days, appeal to the Federal Government against the order. No order can be issued against such an appeal unless the complainant has been given a hearing. However, the Federal Government s decision in this regard is final. It is pertinent to note here that while the affected individual has been given a timeframe of thirty days within which to appeal an order rescinding a CNIC, there is no timeframe specified for the Federal Government to respond to the appeal, or indeed to make a decision on the investigation. Context of this Research As Pakistan s security situation continued to deteriorate over the past decade, successive governments have attempted to crack down on illegal immigration and residency in the country. The focus has been on verifying the CNICs of individuals claiming to be citizens of Pakistan, with the assumption that members of certain terrorist groups may have fraudulently acquired CNICs to live in Pakistan and carry out subversive activities. According to reports published in the local print media, the drive to block CNICs began in 2012, but the initiative picked up speed after the Peshawar school massacre of December To date, NADRA has blocked an estimated 100,000 CNICs although the official figure is closer to 50,000. Thus, even taking a conservative estimate, 1 The term has been taken directly from NADRA s website, and refers to the need for people from designated tribal areas to apply for CNICs from their areas of domicile. 4

8 50,000 individuals in Pakistan are suspected of having acquired a CNIC illegally, and their citizenship is being held in abeyance. To investigate such cases, Joint Verification Committees (JVCs) have been set up at the sub-divisional level by the provincial governments. The JVCs, set up all across Pakistan, consist of representatives of agencies such as the Intelligence Bureau (IB), Inter Services Intelligence (ISI), and Special Branch (SB). In Balochistan, the Ministry of Interior has taken the additional step of including the relevant Assistant Commissioner and representative of Military Intelligence (MI) into the JVC. The issue is that the state s process of investigation into the authenticity of CNICs does not seem to be following the defined process. As a result, a number of people, including more than 50 cases identified in AAWAZ programme areas, are in a state of limbo as they do not have basic identification documents, and do not know when to expect a decision on their cases. Given that the CNIC is essential to participate in civic life in Pakistan and is a pre-requisite for voting, acquiring a passport or driver s license, opening a bank account, getting a cell phone connection, or even attending an institute of higher education, the lack of this essential documentation constitutes a serious handicap. This brief research intends to highlight the state of being a non-citizen and the suspension of fundamental civil liberties for those whose documentation is being investigated. It also highlights cases where CNICs have remained blocked in spite of court orders urging the authorities to release the documents. Based primarily on interviews of the affected individuals residing in Punjab and Khyber Pakhtunkhwa (KP), the study relies on case studies. Reclaiming Citizenship: Case Studies Case Study 1: Eidmat Khan In 2013, Eidmat Khan, a resident of Fateh Jang, district Attock, discovered that his CNIC, along with those of 17 members of his family, had been blocked by NADRA. We have proof of a piece of land bought in 1905 in Parachinar. We are originally residents of Kurram Agency and were issued domicile certificates, National Identity Cards, and passports. Later my father Eidmat Khan moved to Fateh Jang, said Painda Khan, his son, who is studying at the Iqra University in Islamabad. The same year, Eidmat Khan and family approached the Ministry of Interior to enquire about the unusual incident. After a verification run by the Intelligence Bureau, a letter was issued to Eidmat Khan on March 18, 2013 authenticating his and his family s credentials as bona fide citizens of Pakistan. When the letter was taken to NADRA s Peshawar Board office, Eidmat Khan was informed that further investigation was required to establish the veracity of his nationality. 5

9 On January 24, 2014, Eidmat Khan appeared before Justice Mohammad Anwar Khan Kasi to hear the verdict on a writ petition No filed by him at the Islamabad High Court against chairman NADRA for blocking 17 CNICs of his family members. The following are excerpts of the judgment: Respecting the awaited verification, suffice it to say, that the authority is not robbed with the monarchical powers to keep the matter pending for indefinite period at the cost of fundamental rights of petitioners, because it deprives the persons not only from freedom of movement, trade and security of person but also tarnishes dignity and right to equal treatment in their larger scope, therefore, it is in contravention of constitutional guarantees. (Paragraph10 of the judgment). In view of above, it is established that fundamental rights of petitioners are being ignored without any lawful justification, therefore, this petition is allowed and respondents are directed to immediately unblocked (sic) CNICs of the petitioners. (Paragraph11) On May 8, 2015, Painda Khan again went to NADRA s Peshawar Board office and was told that CNICs of 15 members had been unblocked. My CNIC along with those of Abdul Ghafoor and Gulmat Khan remain blocked. Gulmat Khan, who has seven children, is facing huge problems. He cannot travel to Saudi Arabia where he worked and lived with his family; neither can his children go to school because they don t have B-Forms. I don t understand why NADRA unblocked CNICs of other members of our family and continues to keep ours blocked, enquires Painda Khan. Case Study 2: Rahim Khan Rahim Khan, who possesses domicile papers showing him as a resident of Sialkot since 1950, filed a writ petition at the Rawalpindi Bench for unblocking the CNICs of his five children, father Wali Khan, and brother Dina Khan. Despite the court order signed on May 10, 2008 by Justice Maulvi Anwar-ul-Haq, their CNICs remain blocked. The following are excerpts of the court s order: According to the contents of this writ petition, the petitioners are the citizens of Pakistan and are registered voters. Writ petition is accordingly allowed and the impugned order dated , passed by respondent No. 1 along the objections and consequently deleting the names of the petitioners from the electoral rolls is declared to be without lawful authority, void the same is set aside. No order as to costs. (Paragraphs 1 and 5 of the judgment). 6

10 Case Study 3: Ayesha Bibi A year ago, 32 year-old Ayesha Bibi discovered her CNIC was blocked when her brother-in-law Saleem Khan went to a local bank to draw out money on her behalf. My ID card was issued to me when I was about 20 to 21 years. I have three daughters and three sons. One of my sons, Zair Gul studying in sixth grade at HMC High School for Boys in Taxila, was not able to sit for his exams because the school administration asked for the B-Form, which cannot be issued unless both parents show their CNICs. I don t care whether I suffer or not but I don t want my children s future to be ruined. I don t understand what is happening to us. Have I done something wrong? stated a perplexed Ayesha Bibi. As the case studies above illustrate, the persons affected by the blocking have not been informed as to why their cases are under investigation, or what is the due process in this regard. None of them were issued show cause notices, as required under Section 18 of the NADRA Ordinance More importantly, some of them have gone to court against NADRA s decision to block their documents, and have won their cases, prompting the court to order the authorities to rescind their decision. Yet, the decisions have not been reversed. On April 8, 2015 a unanimous resolution was passed by the KP Provincial Assembly against the blocking of CNICs by NADRA. The issue was initially raised by Sikandar Hayat Khan Sherpao, Qaumi Watan Party parliamentary leader. Raja Faisal Zaman of the Pakistan Muslim League-Nawaz (PML-N) also informed the Provincial Assembly that his CNIC was also blocked without any substantial reason. Conclusion and Recommendations The state possesses the right to verify authenticity of citizenship. Nonetheless, it is required to follow due process in this regard, including issuing notices to affected persons informing them that cancellation of the CNIC is imminent, and giving them the right to appeal such an action. Further, the authorities cannot leave them in limbo the issue should reach a logical conclusion, either with the cards being unblocked, or with the affected persons being prosecuted for obtaining CNICs illegally, if this is indeed proved to be the case. The law is silent on the status of a person whose case is under investigation. There is no alternate documentation that he/she can hold while waiting for the authorities to confirm the authenticity of the CNIC. Nor is he/she entitled to expect a decision within a given timeframe. As such, a state of limbo can continue indefinitely, which can be highly detrimental to individuals or their family members, who essentially cannot carry out any legal or civic function without the necessary documentation in hand. 7

11 While the state reserves the right to investigate and resultantly revoke citizenship of an individual after an act of guilt is proven, any measure taken prior to the confirmation of misconduct, malpractice, or anti-state activity violates the fundamental rights of an individual as articulated in the Constitution. The blocking or revocation of a CNIC makes an individual non-existent in the legal sense. 2 This study subsequently makes the following recommendations: NADRA must follow the provisions of Section 18 of the NADRA Ordinance 2000 with regard to issuing show cause notices intimating potential affected individuals that their CNICs are likely to be blocked unless they can prove authenticity. The process of verification should be time-bound, and affected individuals must be kept aware of the stages of the process, and the progress of their cases. The state should adhere to the principle of innocent until proven guilty and should not block, suspend, or revoke identity of citizens only on grounds of suspicion. The citizen should get the benefit of the doubt of the state s lack of proper record or its incapacity to prove citizenship. 2 Interview with Mr. Babar Sattar, a constitutional lawyer. 8

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