SC issues notices on pleas against deportation of Afghans

ISLAMABAD: The Supreme Court (SC) on Friday issued notices to the Federation, Ministry of Foreign Affairs and Attorney General for Pakistan in a constitutional petition on forcible deportation of Afghan nationals.

A three-member SC bench, headed by Justice Sardar Tariq Masood and comprising Justice Yahya Afridi and Justice Ayesha A. Malik, held preliminary hearing in the petitions filed by former PPP senator Farhatullah Babar, Senator Mushtaq Ahmed, Mohsin Dawar and human rights activists.

The petitioners prayed to the apex court for issuing a restraining order against forcible deportation or harassment of anyone born in Pakistan and having a claim to birth-right citizenship in accordance with Section 4 of the Citizenship Act, 1951, as well as the ruling of the Islamabad High Court in the 2021 case of Hafiz Hamdullah Saboor.

They submitted that the federal government should be asked to permit the United Nations High Commissioner for Refugees (UNHCR) and its partner organisations to register, expedite the processing and decide on all asylum-seeking applications filed by foreigners currently residing in Pakistan.

They contended that the government’s policy had failed to provide any mechanism for distinguishing between birth-right citizens and illegal immigrants.

The federal government initiated a crackdown on undocumented Afghan nationals -- essentially people seeking refuge in the country and awaiting legal formalities.

On Friday, during the course of hearing, the court observed that the illegal deportation of Afghan citizens was also a matter of constitutional interpretation and asked the Attorney General to assist it on the next date of hearing.

Ali Ijaz Gillani, counsel for the petitioners, submitted before the court that the interim government had not the mandate to deport illegal Afghan nationals, as it was not an elected government. The counsel submitted that the only mandate of interim government was to ensure holding of free, fair and transparent elections.

He submitted the Afghans who were being deported had already applied for asylum, adding that being a matter of public importance, the apex court had the constitutional jurisdiction to ensure fundamental rights to citizens, enshrined in the Constitution.

Justice Sardar Tariq Masood questioned as to whether the counsel thinks that Afghan nationals who are living in Pakistan for the last 40 years should stay here.

Justice Yahya Afridi asked the counsel for the petitioner as to what fundamental rights of the petitioners have been affected? The counsel replied that articles 4, 9, 10-A and 25 have been violated.

Justice Ayesha A Malik referred to treaties which Pakistan is signatory to different conventions of the United Nations, protecting the rights of refugees.

The judge questioned as to whether the interim government could ignore the international treaties. She also pointed to Section 4 of the Supreme Court (Practice and Procedure) Act, 2023 that stipulates matters related to interpretation of Constitution be heard by a five-member or another larger bench.

At this, Justice Sardar Tariq Masood asked the counsel as to whether the bench could hear the matter or a larger bench, adding that the learned member had pointed out Section 4 of the Supreme Court (Practice and Procedure) Act, 2023. The judge asked the counsel to satisfy the court on the point. Similarly, the court also directed the Attorney General to assist the court on the point as well.

Meanwhile, the court issued notices to the federal government, Ministry of Foreign Affairs as well as the Apex Committee that had taken the decision to deport the Afghan citizens.

Earlier, the Registrar Office of the Supreme Court had returned the instant petitions on the grounds that the petitioners had failed to mention what questions of public importance in the present case were involved with the enforcement of any fundamental right guaranteed under the Constitution.