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A matter of foreign spouses

Updated March 13, 2019

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The writer is an attorney teaching constitutional law and political philosophy.
The writer is an attorney teaching constitutional law and political philosophy.

PAKISTANIS love to marry ‘foreigners’. The quest to immigrate to countries that provide better opportunities means that spouses who are foreigners, with British, American or Australian citizenship are in high demand. This is especially so in the case of Pakistani men; a doctor can have a much brighter future and drastically smoother immigration process if he marries an American or a British citizen than if he goes the usual route of long queues and uncertain outcomes. So it is in the case of engineers and all sorts of other professionally qualified grooms.

Also read: Marital bliss or mockery?

As far as brides are concerned, the families of many prospective grooms are invested in importing an ‘authentic’ Pakistani bride to ensure that the cultural traditions are revitalised in the diaspora. There is also the added gleam of being feted at a large and lavish Pakistani wedding hosted by the families of the grateful brides. So commonplace are these arrangements that wedding calendars are often aligned with immigration calendars, waiting periods and processing times. The nikah is rushed through so the process can begin and the rukhsati happens when the spousal visa is in hand.

If America were to announce that women with US citizenship could not sponsor their Pakistani husbands, there would be an outcry.

In most of the countries of future migration, particularly Western nations whose passports (and hence citizenship) are considered most desirable, it does not matter whether the sponsoring spouse is male or female. This means that there is no gender-based difference in the way these visas are processed and divvied out. Gender parity clauses in constitutions and governing laws in these countries means that they cannot discriminate based on gender. A British-Pakistani girl can sponsor her spouse just as a British-Pakistani man can, with no added obstacle or constraint.

This is not the case in Pakistani law. According to legal scholar Haider Imtiaz, two clauses in the Citizenship Act of 1951 determine the transmittal of citizenship. Section 5 deals with Pakistani women transmitting citizenship to children who are born elsewhere. In its original form, Section 5 only permitted Pakistani men to transmit citizenship to non-Pakistani children born in a different country. In 2000, this section was amended so that both male and female Pakistanis could transmit citizenship to their non-Pakistani or ‘foreign’ children.

Section 10 of the same act deals with the transmittal of citizenship to a ‘foreign’ spouse. Unlike Section 5, this one has not been amended and only permits Pakistani men to transmit citizenship to their spouses but does not permit Pakistani women to do the same thing.

In 2006, the Federal Sharia Court of Pakistan took suo motu notice of the matter and of calls by organisations like the Aurat Foundation. The latter was demanding that the male pronouns used in Section 10 of the Act be replaced by gender-neutral pronouns. That of course would mean that both Pakistani men and women would be equal in their ability to transmit citizenship benefits to their spouses.

The Federal Sharia Court agreed with this recommendation. In their decision, they argued that Section 10 of the Citizenship Act of 1951 was discriminatory and in violation of Article 25 of the Constitution of Pakistan which mandates gender equality for male and female citizens of Pakistan. In this case, the stance of the Federal Sharia Court proved to be too far ahead of the misogynistic purview of the rest of the country.

The federal and provincial governments at the time filed appeals against the decision and the appeal was heard by the Sharia appellate bench of the Supreme Court of Pakistan. The federal and provincial governments both argued that national security, illegal immigration and similar concerns mandated that the transmittal of citizenship not be extended to the foreign spouses of Pakistani women. This time the court agreed with those who were against change and there was no amendment made to Section 10 of the Citizenship Act of Pakistan, 1951.

At the current moment, Pakistani women with foreign spouses are not able to sponsor their non-Pakistani husbands for citizenship on the basis of marriage.

For Pakistanis to truly feel the injustice of this current legal status quo, it must be expressed in relation to the issues they face when dealing with the immigration systems of other countries.

If the United States or Canada were to announce that women carrying their citizenship could no longer sponsor their Pakistani husbands, there would be a significant outcry. The move would be declared discriminatory against their female citizens and particularly against Pakistani men. The marriage landscape of the urban middle class would be instantly transformed and Pakistani men would lose their most cherished route to foreign shores.

If Pakistanis would have so many gripes against such a law if implemented by a Western country, they should, based on legal logic alone, support the amendment to Section 10 of the Citizenship Act of 1951 so that it provides Pakistani men and women with similar benefits. The frail premise of ‘national security’ that is all too often used to deny visas to Pakistanis should not be deployed by Pakistanis such that half the population is treated differently under the country’s citizenship laws.

Some of those who may be considering this issue would wonder why anyone cares about obtaining Pakistani citizenship at all, particularly if they already possess citizenship of some Western country that gets them better treatment during immigration procedures.

This is the incorrect approach to the issue because it uses a circumstantial argument to sideline a legal debate about equality. If the current government is interested in ensuring that both Pakistani men and women have an equal ability to transmit citizenship to their spouses, it should immediately take action together with other lawmakers to amend the language in Section 10 and make it gender-neutral.

The writer is an attorney teaching constitutional law and political philosophy.

rafia.zakaria@gmail.com

Published in Dawn, March 13th, 2019