Supreme Court’s Justice Ayesha A. Malik on Friday observed that Pakistan was bound by the United Nations conventions that protected the rights of refugees.

She passed these remarks as a three-member bench of the apex court took up a petition seeking restraining orders against the caretaker government’s decision to deport illegal Afghan nationals.

The bench also comprises Justice Sardar Tariq Masood and Justice Yahya Afridi.

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 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.

Last month, politicians and rights activists had approached the top court to declare the decision of mass deportation of Afghans as illegal, unconstitutional and against the fundamental rights.

However, the registrar’s office had returned the petition on the grounds that it had failed to point out what questions of public importance in the present case were involved with reference to the enforcement of any of the fundamental rights guaranteed under the Constitution.

On Nov 20, during a chamber hearing, Justice Afridi had ordered to fix the appeal against the court registrar’s refusal to entertain the petition.

A day earlier, another petition challenging Afghans’ expulsion was filed in the SC. It was also fixed for hearing today. However, it is not clear yet if the plea was clubbed with Babar’s petition.

The hearing

As the proceedings commenced today, the court remarked that the deportation of illegal Afghan citizens was also a matter of “constitutional interpretation” and directed the Attorney General for Pakistan to assist the bench on the same.

At the outset, one of the petitioners, former PPP senator Farhatullah Babar, contended that the interim government did not have the mandate to deport illegal Afghan citizens. He highlighted that the Afghans being expelled had already applied for political asylum.

“Afghan citizens are being treated inhumanely by the government of Pakistan,” Babar further stated, reiterating that the caretakers did not have constitutional authority to make a final decision on policy-related matters.

“This court has the jurisdiction to protect the rights of citizens,” he pointed out.

Here, Justice Afridi inquired about the fundamental rights being violated in the current case. Articles 4 (right of individuals to be dealt with in accordance with the law), 9 (security of a person), 10 (right to fair trial) and 25 (equality of citizens) of the Constitution, the petitioner replied.

Meanwhile, Justice Masood said: “Should those who have been living [in the country] for the past 40 years stay here? Assist the court on this.”

Subsequently, the court issued notices to the federal government, the foreign ministry, apex committee — that had taken the decision to expel Afghans under the leadership of the caretaker prime minister and army chief — and the AGP. The hearing was then adjourned till the next week.

The petition

The petition was jointly moved on behalf of Farhatullah Babar, Senator Mushtaq Ahmed, Amina Masood Janjua, Mohsin Dawar, Mohammad Jibran Nasir, Syed Muaz Shah, Pastor Ghazala Parveen, Imaan Zainab Mazari, Ahmad Shabbar, Advocate Imran Shafiq, Luke Victor, Sijal Shafiq, and Rohail Kasi.

The plea urged the apex court to restrain the federal government and state institutions from detaining, deporting, or otherwise harassing anyone who possesses a PoR (proof of residence), ACC (Afghan Citizen Card), asylum-seeker application issued by UNHCR or pre-screening slip issued by its partners SHARP and SEHAR.

It pleaded that a direction should be issued, requiring the federal government not to detain, forcefully deport, or otherwise harass anyone born in Pakistan with a claim to birthright citizenship in accordance with Section 4 of the Citizenship Act, 1951, and the ruling of the Islamabad High Court in 2021 case of Hafiz Hamdullah Saboor.

It contended that the federal government should also be asked to permit UNHCR and its partner organisations to register, expedite the processing, and decide on all asylum-seeking applications in Pakistan.