The rights of the refugee

At the UN Headquarters in New York, politicians from across the globe are gathering this week. On the agenda is the worst refugee crisis since the Second World War: the migration of more than five million human beings amidst the Syrian civil war. Those in attendance include President Barack Obama and Prime Minister Nawaz Sharif.

The organizer of this unprecedented Summit on Refugees and Migrants is the General Assembly which has called upon governments to come together and prepare a “blueprint for a better international response”. The General Assembly expresses hope that this will be “a watershed moment to strengthen governance of international migration and a unique opportunity for creating a more responsible, predictable system for responding to large movements of refugees and migrants.”

That the exiting international legal framework governing migration – primarily the Convention Relating to the Status of Refugees – is skewed can be easily appreciated through a quick glimpse at the numbers. According to a study by Oxfam, about half of the world’s refugees and asylum seekers – almost 12 million people – are hosted by Jordan, Turkey, Occupied Palestinian Territory, Pakistan, Lebanon and South Africa, countries whose economies collectively account for less than 2pc of the world’s total.

Clearly, the framework tilts in favour of the richer countries of the world. There is an unwritten justification for this too: the richest countries in the world give around $2 billion in aid to the UNHCR which then distributes it to the poor countries who actually host refugees. But this is hardly enough to absolve the rich and the mighty of the human responsibility for welcoming refugees in their own flourishing countries. At the UN Summit, there will be at least some talk of making this arrangement more equitable.

The call for increasing international aid commitments for refugees is certainly welcome. So is the call for stricter monitoring and enforcement of international law obligations of states. But, in dealing with the refugee crisis, let us remember that international law is never going to be enough. Domestic law also needs to step up. Especially for those millions of refugees who have already entered a jurisdiction, like Afghans living in Pakistan or Syrians in Turkey, effective enforcement of the remedies offered domestic law could go a long way. Any comprehensive global strategy for improving the lot of refugees must also include a component for canvassing support for refugee rights among lawyers and judges.

It is easy to forget that the leaders who are meeting in New York this week represent only one branch of government in their respective countries: the executive. In many countries, the executive branch has popularised the notion that illegal immigrants and refugees depend completely upon the good grace of the government of the day and have no domestically-enforceable constitutional or legal rights. This is not an honest reading of the legal situation in many countries of the world such as Pakistan. And in other countries, such as in the US, this can and should change.

In Pakistan, refugees and illegal immigrants enjoy domestic legal protection at three levels.

First, they are bearers of constitutional rights which neither the executive branch nor the Parliament can take from them. The text of Article 4 of our Constitution makes this abundantly clear: “To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.” Likewise, in the chapter on fundamental rights, the most important rights, though not all, also accrue to refugees and illegal immigrants – amongst them are the rights to “life”, “liberty”, “fair trial”, “dignity of man,” “protection against deprivation of property” and “privacy of home”.

Second, refugees and illegal immigrants in Pakistan can go to a domestic court to claim the rights that accrue to them under customary international law. This is because Pakistan’s judiciary has repeatedly clarified that customary international law, unlike treaty law, is a part of our domestic law. Najib Zarab Ltd vs the Government of Pakistan (PLD 1993 Karachi 93), the Sindh High Court held that “the community of nations requires that rules of international law may be accommodated in the municipal law even without express legislative sanction provided they do not run into conflict with the Acts of the Parliament.”

This means that even though Pakistan’s executive has never signed the 1951 Refugee Convention and its parliament has never incorporated convention rights in statutory law, refugees can still claim from our judiciary the right not be re-fouled because it accrues to them under customary international law.

Third, Pakistan Citizenship Act, 1951 is actually quite generous insofar as the principle of jus soli (citizenship by birth) goes. Under Section 4, the children of refugees and illegal immigrants are entitled to Pakistani citizenship if they were born on Pakistani soil.

The Bill of Rights of the US Constitution is possibly the most famous charter of constitutionalism in human history. One of its less widely appreciated aspects is that most of its guarantees extend to all “persons” – which includes non-citizens, even illegal immigrants, living on US soil. The US constitution could have been liberally interpreted to give illegal immigrants a substantial amount of constitutional rights – after all they now constitute about five percent of the total US work force.

But the US Supreme Court’s jurisprudence on this issue has been disappointing. The court has quite consciously abandoned its judicial duty to protect these persons and has ceded to the Congress almost complete authority to regulate immigration issues. In Harisiades v Shaughnessy, a case where the court upheld the right of Congress to expel noncitizens who were former Communists, Justice Felix Frankfurter wrote. “In recognizing this power and this responsibility of Congress, … one merely recognizes that the place to resist unwise or cruel legislation touching aliens is the Congress, not this Court.”

If we are to create a world which is fairer to the refugee, amongst other things, this judicial approach would have to change. The leaders who are meeting in New York can only part their own part. But it is lawyers and judges who will have to step up for the enforcement of the promises that the great charters of constitutionalism and rule of law – amongst them the Pakistani constitution and the US Bill of Rights – make to refugees and illegal immigrants. The responsibility to challenge “unwise or cruel legislation touching aliens” is ours and we cannot shirk it.

The writer is a lawyer associated with Foundation for Fundamental Rights. Email: umer.gilani@gmail.com