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THE detention of nearly 1,200 Afghan nationals, including 178 children, has received much media attention and generated bad press for the Sindh government. It has also brought in its wake increasing fear for many Afghans, especially those who have taken refuge in Pakistan without visas or refugee status after the Taliban’s takeover of Kabul in August 2021.
“If a person lives illegally in any country, the government takes action and deals with them according to the law,” Sindh Information Minister Sharjeel Memon said while justifying the arrests.
When the Afghans fled their country, some entered Pakistan with visas, some without. Many now require visa extensions, but since this would mean going through expensive, unregulated agents, many refrain from attempting to get their visa extended. A majority who fled initially are those who feared persecution at the hands of the Taliban.
They include army personnel, members of the judiciary, journalists, human rights defenders and those whom the Taliban despise because of their ethnicity (Hazaras), sexual orientation (LGBTQIA+) and profession (musicians and singers). Some are economic immigrants who had fled unemployment and imminent starvation.
This coming Monday will see the start of this year’s first of a series of deportations of convicted Afghans, including 54 women, who, after having completed their two-month sentence, will return to Afghanistan, where an uncertain future awaits them.
Pakistan should review the influx of Afghan refugees through the lens of empathy.
Many termed these recent arrests in Karachi as nothing but a knee-jerk reaction by the government following the escalation in terrorist attacks last year, in which 282 security personnel lost their lives, 40 of them in December alone. The attacks had brought Afghanistan-Pakistan relations to a tipping point.
In a way, the media focus on the plight of the imprisoned and poor Afghans has highlighted the inadequacy of domestic instruments and mechanisms in dealing with and assisting and protecting the refugees.
There is a 1951 Refugee Convention and its 1967 Protocol, which stops states from punishing people who enter a country illegally — apart from giving them several rights including housing, property ownership, freedom of movement, provision of identification documents, education, freedom to practise their religion and pursuing a profession. However, it has not been adopted by Pakistan so far.
Ratifying this international instrument would mean legislating a domestic law. There have been attempts at drafting a policy and a law on refugees, but both remain in cold storage. Thus, there is no clear-cut procedure to determine the status of refugees seeking international protection within Pakistani territory even for organisations that are assisting the new refugees.
The imprisoned Afghans are currently treated in accordance with the provisions of the Foreigners Act, 1946, which does not recognise most of the rights in the 1967 Protocol.
Not legislating on the issue and keeping it “fluid and ad hoc” through bilateral (Afghanistan and Pakistan) and trilateral (UNHCR, Pakistan and Afghanistan) agreements that lapse and are given a shot in the arm every now and then suits the Pakistan government just fine, if you ask lawyer Haya Zahid.
“The only inference I can make about why Pakistan has not ratified the protocol is that it wants to limit interventions as well as undue interference by international organisations inside its territory,” she said.
In addition, the absence of consensus on the key definition of a refugee remains a stumbling block in the way of resolving the issue, she said.
While organisations working to assist refugees may want greater assimilation, host countries, which are poorer and politically fragile, especially in the Global South, would prefer quicker repatriation, explained Zahid.
But even in the absence of specific domestic legislation on refugees, there are international human rights conventions that Pakistan is a signatory to, and which can be employed to assist Afghans seeking refuge, according to Sikander Shah, who teaches at the law school in Lums, Lahore.
The International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of all Forms of Discrimination Against Women, the Convention on the Rights of the Child, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, are a few that he lists.
There are also other instruments, like the 1973 Constitution of Pakistan or international customary laws, that can be invoked. Umer Ijaz Gilani, an Islamabad-based lawyer, did just that when he recently urged the National Commission for Human Rights to desist from deporting Afghan asylum-seekers awaiting clearance of their application, as it would be a violation of the non-refoulement principle that the asylum-seekers are entitled to. This principle is against the forcible return of refugees or asylum-seekers to a country where they may be subjected to persecution.
There is no denying that Pakistan is reeling from multiple crises — political, economic and climate-induced catastrophes. It is also true that, given its own economic travails, Pakistan cannot take on the additional burden of assisting more Afghans than the three million it is already hosting since 1979.
But what Pakistan can do is to review the influx of refugees through the lens of empathy. To do that, the people — including the academia, policymakers, legislators and the judiciary — can hold an informed discussion on the issue.
At the same time, more clarity is needed over the various categories of people who flee their homes — due to conflict, economic, or climate-induced reasons. This can be followed by a mapping exercise of where such immigrants live across Pakistan, and perhaps at some point in time, even a census can be held.
The information gathered will not only help the authorities come up with robust policies and plans, but lessen the antagonism these vulnerable people currently face.
It is heartening to learn that the law school at Lums has already taken the first step. Last month, in collaboration with the UNHCR, it organised a conference highlighting the need for teaching refugee law courses to students. Other academic institutions can follow suit and hold such discussions too.
The writer is a Karachi-based independent journalist.
Twitter: @Zofeen28
Published in Dawn, January 7th, 2023
