The Pakistan Citizenship Act, 1951, is in the limelight these days along with the issue of Afghan refugees staying legally in Pakistan. The law is under discussion in the media as well as among civil society groups, especially the question whether this law is discriminatory towards women.

Several Pakistani women wedded to Afghan men have reportedly expressed concern over the growing pressure from the law-enforcing agencies, including police, on the Afghan refugees to return to their country. However, these families are in a difficult situation as Pakistan’s citizenship law only permits foreigner spouse of a Pakistani man to get Pakistani citizenship, whereas the same facility is not available to foreigner spouse of a Pakistani woman.

For the last two decades women’s rights groups have been demanding amendments to the Pakistan Citizenship Act, 1951, to provide equal legal protection to the male and female spouses of Pakistani nationals. However, successive governments have not been entertaining this demand.

Earlier, under Section 5 of the Citizenship Act, children of Pakistani men were entitled to citizenship by descent and that of Pakistani women not entitled to the same facility. A Commission of Inquiry on the Status of Women, which was constituted during the then government of Prime Minister Benazir Bhutto, had put forward several recommendations for ending discrimination against women.

The said commission had put forward its report in 1997. About the Citizenship Act the commission had put forward two important recommendations. At that time under the law a foreigner wife and children of a Pakistani male citizen were entitled to be given citizenship. However, the same rights were not available to children and foreigner husband of a Pakistani woman.

The commission had recommended that Section 5 and 10 of the Citizenship Act should be amended to bring to an end this discrimination. During the military government of Gen Pervez Musharraf an amendment was made to the Citizenship Act in 2000 and right of citizenship was granted to children of a Pakistani woman. However, the issue of foreigner husband of a Pakistani woman had not been addressed.

In 2006 the Federal Shariat Court took a suo motu notice of the issue of discrimination in the Citizenship Act. A bench comprising the then Chief Justice Haziqul Khairi, Justice Dr Fida Mohammad Khan and Justice Salahuddin Mirza announced its verdict on Dec 12, 2007, after hearing different stakeholders including the federal government, The National Commission on Status of Women, provincial governments and Aurat Foundation.

After arguments the bench ruled: “We are of the view that Section 10 of the Citizenship Act is discriminatory, negates gender equality and is in violation of Articles 2-A and 25 of the Constitution of Islamic Republic of Pakistan and also against international commitments of Pakistan and most importantly is repugnant to the holy Quran and Sunnah.

“In the end, it may be clarified that while Section 10 of the Citizenship Act 1951 expressly contemplates denial of citizenship to a foreign husband of a Pakistani woman as neither she nor he is entitled to apply under it, nevertheless under law whether municipal or international, grant of nationality would remain within the domain of discretion of the government of the country which may refuse it for reasons of national security or public interest, etc. to which she or he cannot claim it as a matter of right.”

The bench had directed: “We, therefore, in exercise of our powers under clause (3) (a) of Article 203-D of the Constitution require the President of Pakistan to take suitable steps for amendment of Section 10(2) and other provisions of the Citizenship Act, 1951, within six months hereof ensuring appropriate procedure for grant of Pakistani nationality to a foreign husband married to a Pakistani woman.”

However, the federal government filed an appeal before the Shariat Appellate bench of the Supreme Court. The said bench had earlier issued notices to provincial governments, Human Rights Commission of Pakistan and different bar associations to put forward their points of view. The case has still been pending before the appellate bench.

Before the FSC and the appellate bench the federal interior ministry had put forward different reasons to substantiate its stand. The ministry stated that foreign women marrying Pakistani men could not be equated with foreign men married to Pakistani women in our society. “It would add legal stay of a large number of illegal immigrants residing in Pakistan and also increase their influx. The foreign husband after marrying a Pakistani lady and obtaining Pakistan nationality would be free to divorce Pakistani lady and move freely in Pakistan anywhere.”

The ministry had stated: “Majority of persons would misuse the provision especially illegal immigrants like Afghan refugees, Bengali, Behari and other South Asian states/countries who do not intend to return to their country. Apart from social/economic implications, the provision can also be used by any foreign country to plant their agents in Pakistan.”

“The citizenship rights like entitlement to vote, seeking appointment to constitutional posts and equal opportunities in matters of public appointments may be weighed with their political or national interests. The proposed amendment may be assessed on the touchstone of Indo-Pak relations; it will provide legal ingress to Indian male citizens into Pakistan.”

A legal expert on the subject said that under the existing law an Afghan national could not be given Pakistani citizenship irrespective of the issue of gender. He said that under Section 14 of the Citizenship Act dual citizenship or nationality was not permissible except in case of 18 countries already declared by the federal government.

These 18 countries include: United Kingdom, France, Italy, Belgium, Iceland, Australia, New Zealand, Canada, Finland, Egypt, Jordan, Syria, Switzerland, Netherland, United States of America, Sweden, Ireland and Bahrain.

Some civil society members believe that the issue of a Pakistani woman marrying an Afghan refugee was different from that of illegal immigrants from other countries like Bangladesh. They said that the Afghan refugees had been residing here for last many decades and had now been integrated in the social and economic fabric of the society and due to same reason there were many examples of Pakistani women marrying Afghan men. They added that there was need for looking into this issue on compassionate grounds by the federal government.

Published in Dawn, September 19th, 2016