NADRA can’t block, cancel CNICs: IHC

Rules that birthright citizenship automatically makes a person born in Pakistan a citizen


Saqib Bashir May 22, 2021
IHC. PHOTO: Islamabad High Court website

ISLAMABAD:

In a landmark judgment, the Islamabad High Court (IHC) has declared that the National Database Registration Authority (NADRA) has not been vested with the power to suspend or block the computerized national Identity card (CNIC) of a citizen.

“Blocking a card [CNIC] would be tantamount to suspending the citizenship of a registered citizen and exposing the latter to the horrendous consequences that follow

“It is, therefore, declared that [NADRA] is bereft of jurisdiction or power to directly or indirectly determine or adjudicate upon the status and eligibility of a person's citizenship, who has already been registered as a citizen,” said a 29-page verdict authored by IHC Chief Justice Athar Minallah.

Justice Minallah issued the order after hearing a slew of petitions – including one filed by former senator and JUI-F leader Hafiz Hamdullah – against cancellation of CNICs.

Read more: IHC orders NADRA to restore JUI-F leader's CNIC

The verdict said exercise of powers conferred on NADRA under section 18(2)(a) of the Citizenship Ordinance 2000 on the ground of eligibility relating to citizenship are subject to determination or adjudication made by the competent authority.

“The authority [NADRA] is bereft of the power to block, suspend, impound or confiscate a CNIC on the ground of eligibility relating to citizenship unless an order passed by the competent authority under subsection 6 of section 16 of the Citizenship Act has attained finality…

“[it can do this only if it] has been informed that the competent authority has either confirmed renunciation of citizenship under section 14 A or its loss under section 16 A, as the case may be.”

The court noted that citizenship is the most valuable basic right of a human and all other rights, whether social or political, cannot be enjoyed if a person does not have a bond of citizenship with a state.

“The fundamental rights guaranteed under the Constitution are rendered meaningless if a person is stripped of citizenship. It has a devastating impact on human lives. A person once registered as a citizen cannot be deprived of citizenship otherwise than as is provided under the law.”

Referring to Article 15 of the 1948 Universal Declaration of Human Rights, the IHC said: “Everyone has the right of nationality. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.”

Article 7 of Convention on the Rights of a Child, it said, recognizes that every child has the right to acquire a nationality. The 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness discourages states from creating statelessness.

“In a nut shell, citizenship is the sole and effective bond between a state and a human which enables the latter to enjoy all the rights guaranteed under the Constitution. It entitles the individual to the protection of the State and to enjoy civil and political rights.

“A state cannot adopt policies which will have the effect of even inadvertently rendering a person stateless. The Citizenship Act and the Citizenship Rules and the statutory safeguards prescribed therein are consistent with the mandate of the Constitution and the international obligations.”

It said citizenship is so precious a right that cannot be taken away in a reckless or perfunctory manner.

Birthright citizenship

The court noted that the legislature has expressly recognized and upheld birthright citizenship as a right and that a plain reading of section 4 unambiguously shows that the right is not subject to any condition.

“Birthright citizenship automatically makes a person who is born in Pakistan a citizen and in this regard the latter does not have to fulfill any prerequisites to become a citizen unlike in the case of other categories such as 'citizenship by naturalization' or 'citizenship by immigration'.

“It is not a privilege granted by the state but a right acquired by law. The onus is on the state to establish that, despite having been born in Pakistan, the person would not come within the mandate of section 4 of the Citizenship Act.

“There are about thirty five countries across the globe, which have incorporated birthright citizenship in their domestic laws and Pakistan is one of them. There appear to be some countries where birthright citizenship is offered on conditional basis but that is not the case under the Citizenship Act,” it added

Hafiz Hamdullah’s citizenship

The IHC – while restoring the CNICs of all the petitioners including Hafiz Hamdullah – noted that NADRA had exposed itself to be sued for claim of damages for the devastating consequences and unimaginable mental agony suffered by the petitioners.

It said NADRA never denied that Hamdullah was born within the territory of Pakistan and that he and his father have lived in the country all their lives.

“They own properties [here] and the petitioner has held various public offices as an elected representative. His son has the distinction and privilege of having been accepted as a commissioned officer in the armed forces.

“There could not have been a more glaring example of arbitrary and reckless action by the authority [NADRA] of purportedly depriving a registered citizen of his citizenship and that too when the latter had no jurisdiction under the Ordinance of 2000 to do so.

“In all the other petitions the petitioners assert that they were born in Pakistan and this fact has neither been verified nor adjudicated upon by the competent authority in accordance with the provisions of the Citizenship Act read with the Citizenship Rules.”

The court also noted that the Pakistan Electronic Media Regulatory Authority (Pemra) violated the law when it stopped media outlets from airing any programme featuring Hafiz Hamdullah.

“There is nothing on record to justify passing of the impugned order by Pemra. The order, dated 26-10-2019, is declared to have been issued illegally and wholly without authority and jurisdiction,” it added.

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