In defence of the defenceless

Pakistan has been host to the largest refugee population in the world. The country continues to host approximately 1.45 million refugees according to figures released by the United Nations High Commissioner for Refugees (UNHCR). While the society, at large, has set an example for today’s Europe and the US; the treatment accorded by the organs of Government has been indiscreet. Lately, reports have been doing rounds that the Government, despite undertaking to the contrary, has been illegally deporting as well as arresting scores of Afghans. The response to recent terrorist wave is not just disproportionate but it also discredits, in fact bring into naught, the good work done by the Pakistanis for nearly four decades now.

Pakistan is not a signatory of The Refugee Convention, 1951 or its 1967 Protocol ratified by 145 member states. It explains the Government’s ad-hocism. The Convention defines refugee as a person who “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality, and is unable to, or owing to such fear, is unwilling to avail himself of the protection of that country.” Our domestic laws don’t have a definition for “refugee” and only allude to Afghans, for instance, as “foreigners”, “persons” and “aliens”. Definitions are important. They confer or deny a legal character that, in turn, determine rights and duties applicable under law.

Rationale for not ratifying? It is to avoid obligations incurred under the Convention as “Contracting State”. One such obligation spelled out by Article 32 is: “The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order. “ The Article further guarantees due process of law in matters pertaining to expulsion. Another obligation is contained in Article 33: “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”

Instead Pakistan has entered into a Tripartite Agreement involving the UNHCR and the Afghan Government for voluntary repatriation of Afghan citizens which is valid till December, 2017. Pursuant to the Tripartite Agreement, a commission has been constituted “to facilitate the voluntary repatriation in conditions of safety and dignity of Afghan citizens and their reintegration in Afghanistan.” The essence of the Tripartite Agreement is that the return of Afghans must be voluntary, gradual, safe and dignified (Article 8).

If Pakistan does not honour its obligations under the Tripartite Agreement, does it create actionable rights for the Afghans to be enforced in domestic courts of Pakistan? The answer, unapologetically at that, is yes!

For most international agreements or treaties, such as, the Minimum Age Convention and the Convention on Conservation of Migratory Species of Wild Animals, etc. an enabling legislation is required to provide courts, with the domestic legal authority, necessary, to enforce international agreements. However, a self-executing international agreement, such as the Tripartite Agreement, does not envisage further regulations to be framed pursuant to it. It carries clear intent to create binding relations manifest from its specific provisions. Such self-executing international agreements are directly enforceable in the superior courts that are empowered to protect fundamental rights enshrined in our Constitution extended to both citizens and non-citizens (Article 4, 9, 10-A and 14 of the Constitution). The case of Shehla Zia is instructive. In this case, the Rio Declaration on Environment and Development, due to the language used in it, even though was not ratified by parliament was yet examined on the touchstone of Article 9 of the Constitution. The court, in light of the Declaration, gave certain directions to the executive for sustainable energy policy.

In addition, the jurisprudence developed by the courts on Customary International Law, which results from “general and consistent practice of states followed by them from a sense of legal obligation”, is that even if the country is not signatory to international agreements; the community of nations demands that rules of international law, so far as they are not inconsistent with domestic statutes, need to be accommodated into domestic laws. Ergo, the government, it appears, is not even completely exempt from the application of the Refugee Convention of 1951 after all.

The unprecedented strides made by law enforcement to maintain public order, with evident shift in its security paradigm, are well appreciated. National security is a legitimate concern. But we must not allow Law to be sacrificed at the altar of Order. While we fight this war, we must strive to, regardless of how elusive it may sound, strike a balance between Law and Order without choosing one over the other. Recent purges of Afghans betray that balance. And we are better than that! Our treatment to the largest refugee population bears witness that even if some among us harbour prejudices and peddle them, we as society have not been ruled by them. The government of today, using all appropriate forums, needs to be reminded of who we are; and of its obligations as member of the international community — lest we should, because of a few, end up on the wrong side of history!

Published in The Express Tribune, March 11^th, 2017.

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