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Petitioner: Hafiz Hamdullah Saboor VS Respondent: Government Of Pakistan through Secretary JUDGMENT
Court Name: Islamabad High Court Judge(s): Athar Minallah Title:Hafiz Hamdullah Saboor vs Government Of Pakistan through Secretary
JUDGMENT
Reported As: PLD 2021 Islamabad 305 Result: Petition allowed Judgment JUDGMENT ATHAR MINALLAH, C.J.---What would happen to a person if the latter is stripped of his or her citizenship and who does not have such a relationship with any other State? Such a person would definitely be rendered Stateless. As aptly stated by Chief Justice of the United States Supreme Court, Earl Warren in his dissenting opinion in the case titled "Clemente Martinez Perez v. Herbert Brownell, Jr., Attorney General of the United States of America " [356 US 44 (1958)] that 'citizenship is mans' basic right for it is nothing less than the right to have rights. Remove this priceless possession and there remains a stateless person, disgraced and degraded in the eyes of his countrymen.' The petitioners in the petitions listed in 'Annexure A', attached to the judgment, complain that they have been arbitrarily stripped of citizenshi p by an authority which had no jurisdiction and that by doing so they have been rendered Stateless. 2. The petitioners have raised questions of pivotal public importance, affecting the fundamental rights guaranteed under the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the 'Constitution '). The petitioners are aggrieved because their respective registration as citizens of the Islamic Republic of Pakistan has either been suspended or cancelled/withdrawn. In almost all these cases the effect of the suspension, withdrawal or cancellation, as the case may be, of the registration is that the affected citizens have lost their citizenship of Pakistan and have become 'stateless'. In all these petitions, the aggrieved petitioners assert that they were born in Pakistan and, pursuant to fulfilling the requirements prescribed under the law, they were duly registered and thereafter respective Computerized National Identity Cards (hereinafter referred to as 'CNICs ') were issued by the National Database and Registration Authority (hereinafter referred to as the 'Authority ') in exercise of powers conferred under the National Database and Registration Authority Ordinance, 2002 (hereinafter referred to as the 'Ordinance of 2002' ). The CNIC's have either been blocked/suspended or cancelled/withdrawn pursuant
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to reports received from various agencies which are under the control of the Federal Government. The CNICs of the petitioners were blocked or cancelled on the sole ground that the agencies had reported that they were not citizens of Pakistan. The Authority had issued notices and, thereafter , the registrations were either blocked, suspended or withdrawn. The entire proce edings were conducted in a perfunctory and superficial manner . In order to appreciate the controversy involved in all these petitions and by way of illustration, the facts relating to the petitioner in W.P. No. 3748/ 2019 titled 'Hafiz Hamdullah Saboor v. Government of Pakistan through its Secretary , Ministry of Interior , etc. ' will be briefly discussed. 3. The petitioner , namely Hafiz Hamdullah Saboor (hereinafter referred to as the 'petitioner ') was born in a remote town of the Province of Baluchistan on 19-10-1968 and this crucial fact has not been denied. His father , namely Qari Wali Muhammad, son of Bor Muhammad, was employed by the Government of Baluchistan. Pursuant to a license granted by the competent authority on 03-04-1971. the petitioner's father had established a religious educational institution, namely Madrassa Taleem ul Quran (hereinafter referred to as the 'Institution ') and the building was constructed on the private property owned by the latter . It has been asserted by the petitioner that the said land had been privately acquired by his father in 1965. The petitioner was successful in the secondary school examinations and this fact was confirme d by the Board of Intermediate and Secondary Education Baluchistan, Quetta vide certificate, dated 19-02-1986. The University of Baluchistan, Quetta, conferred upon the petitioner the degree of Bachelors of Arts, which was formally awarded on 20-08-2002. On 14-07-1986, the District Education Officer, Pishin, had confirmed the appointment of the petitioner as a Teacher . The petitioner , his father and other family members were duly issued travel documents under the Passports Act 1974 (hereinafter referred to as the 'Passports Act'). The petitioner contested in the general elections held in 2002 and was notified as a returned candidate to the Provincial Assembly of Baluchistan from the constituency PB-1 1 Qilla Abdullah 1. The latter also served as a member of the provincial cabinet. The petitioner was later declared successful vide notification, dated 06-03-2012, as a member of the Upper House of the Majlis-e-Shoora (Parliament) i.e. the Senate of Pakistan. The petitioner's children are registered as citizens of Pakistan and one of them has the distinction of being accepted as a commissioned officer in the Pakistan Army . The Authority asserts that a report was received from one of the agencies alleging that the petitioner was not a citizen of Pakistan and, therefore, proceedings were initiated to verify his status. It is noted that the relevant public functionaries had confirmed the status of the petitioner and his antecedents. However , the Authority vide the impugned order , dated 11-10-2 019, purportedly cancelled the petitioner's CNIC bearing No.54201-4851394-7 and further directed him to surrender his card within fifteen days. It is noted that the manual National Identity Card No.602-92-033673 was issued in favour of the petitioner in 1992. On the basis of the order passed by the Authority , the Pakistan Electronic Media Regulatory Authority (hereinafter referred to as 'PEMRA ') vide order , dated 26-10-2019, restraine d TV Channels (News and Current Affairs) from "inviting and projecting the petitioner in their programmes/talk shows, news, etc." . The petitioner has, therefore, challenged the orders passed by the Authority and PEMRA and all subsequent actions or proceedings. In the other petitions the petitioners also assert that they were born in Pakistan and pursuant to being duly registered, the Authority had issued their respective CNICs. All the petitioners have asserted that they are aggrieved because the Authority had either blocked or cancelled their respective CNICs on the sole ground that they were not citizens of Pakistan. Arguments on behalf of the parties: 4. The learned counsel for the petitioners have argued that; the Authority is bereft of jurisdiction to suspend or cancel a CNIC on the ground that its holder is not a citizen of Pakistan; citizenship is the most valuable human right and a person cannot be made stateless in an arbitrary manner; no power vests in the Authority to adjudicate the question of citizenship; the registration of a person under the Ordinance of 2000 is affirmation of the latter's citizenship and it cannot be suspended, let alone cancelled, in a perfunctory manner; the petitioners were born in Pakistan and, therefore, their status as citizens of Pakistan cannot be altered, changed or prejudiced in any manner whatsoever by the Authority . 5. The learned counsel, who has appeared on behalf of the Authority , has contend ed that; the latter is empowered under section 18 of the Ordinance of 2000 to cancel, impound or confiscate cards and that the procedure for doing
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so has also been prescribed therein; the Ordinance of 2000 empowers the Authority to seek advice and assistance from agencies of the Federal Governmen t to carry out the purposes ibid; reliance has been placed on 'Muhammad Umar v. Federation of Pakistan, through Secretary , Ministry of Interior Islamabad and 2 others' [PLD 2017 Karachi 585], 'Najeebullah and others v. Director NADRA, Balochistan, Quetta and others' [PLD 2016 Quetta 1], 'Khan Zaman v. Government of Pakistan through Secretary Ministry of Interior , Islamabad and 5 others' [PLD 2011 Peshawar 47]; reference has also been made to an order passed by the august Supreme Court in C.P. No.1829/2019 titled 'NADRA v. Gulab Shah and others ' which was disposed of by the apex Court pursuant to consent given by the parties. 6. The learned counsel have been heard and the record perused with their able, assistance. Opinion of the Court: 7. The admitted facts are that the petitioners were duly registered by the Authority under the Ordinance of 2000 after they had applied for issuance of their respective CNICs in accordance with the prescribed procedure and fulfilling the mandatory requirements. The registration was followed by the issuance of the respective CNICs by acknowledging the crucial fact that the petitioners were citizens of Pakistan. Prior to the issuance of CNICs, most of the petitioners had obtained manual national identity cards issued under the National Registration Act 1973. It is not the case of the Authority that the petitioners have acquired citizenship of another sovereign state or that the authority competent under the relevant law had revoked, withdrawn or cancelled their citizenship. It has also not been alleged that the petitioners had given false information regarding their birth in Pakistan when they had applied for the issuance of the CNICs. There is nothing on record to show how the Authority or the concerned intelligence agency had concluded that the petitioners were not citizens of Pakistan. As would be discussed later in more detail, the Authority nor the intelligence agencies are competent to determine the question of citizenship of a person. The suspension of a duly issued CNIC or cancellation thereof has a profound and grave consequence because it virtually brings the life of an affected person to a halt and the latter , by implication, is denied the exercise of fundamental rights guaranteed under the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the 'Constitution '). Such a person loses the right of employment, access to his or her own bank accounts, the right to engage in trade, business or profession. Moreover , access to education, health, etc. is denied. The family members are also equally affected. In a nut shell, the right to life guaranteed under Article 9 is virtually taken away . This phenomenon of blocking or cancelling the CNICs of citizens by the Authority in a perfunctory and arbitrary manner has remained prevalent for a long time because similar grievances have been frequently agitated before this Court. This Court has consistently observed that the Authority was bereft of jurisdiction to adjudicate upon a question which involves the determination of the status of a person as a citizen of Pakistan and that too, on the basis of reports received from intelligence agencies which are under the control of the Government. It was observed in several cases that the petitions had been disposed of in the past because the concerned intelligence agency , after reconsideration, had changed its opinion. The petitions in hand and the grievances involved therein have raised questions of paramount public importance; whether the Authority is vested with jurisdiction to adjudicate upon and thus determine the status of citizenship of a person and, on that basis, suspend, block, cancel or revoke the registration granted under the Ordinance of 2000; whether the intelligence agencies are competent to report the factum of citizenship to the Authority; if the answer is in the negative, then which authority is competent and under what law can a person be deprived of being a citizen of Pakistan; whether a citizen can be rendered stateless and thus deprived from enjoying the fundamental rights guaranteed under the Constitution. 8. The two relevant statutes which are required to be examined in order to answer the aforementioned questions are; the Pakistan Citizenship Act 1951 ( hereinafter referred to as the 'Citizenship Act') and the Ordinance of 2000. The Citizenship Act. The expression "citizen" has been defined under Article 260 of the Constitution as meaning "a citizen of Pakistan as defined by law". Section 2(e.) of the Ordinance of 2000 defines 'citizen' as meaning a person who is, or is deemed to be a citizen of Pakistan under the Citizenship Act. The distinct catego ries of citizenship are described under the respective provisions of the Citizenship Act which was promulgated and notified in the official gazette on
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13-04-1951. The preamble declares its object as to make provisions for citizenship of Pakistan. The expression "alien" has been defined in section 2 as meaning a person who is neither a citizen of Pakistan or the Commonwealth. Section 3 is a deeming provision and describes the categories of persons who were deemed to be citizens of Pakistan on the date of comme ncement of the Citizenship Act. Section 4 is most crucial for the purposes of the adjudication of the petitions in hand because it explicitly declares that every person born in Pakistan after commencement of the Citizenship Act shall be a citizen by birth. The two exceptio ns are mentioned in clauses (a) and (b) ibid. The scope of the exceptions is limited and restricted to only two clearly described eventualities. 'Birth creates a right to become a citizen of Pakistan by operation of law. The legislature has used the expression 'shall' and thus birth in Pakistan is the sole ground to become a citizen. Section 5 describ es the right to citizenship on the basis of 'descent' and the conditions and exceptions have been explicitly mentioned by the legislature. Section 5 empowers the Federal Government to register a person as a citizen who has been granted a certificate of domicile in exercise of powers conferred under section 17 and provided the latter fulfils other conditions prescribed in the provision. Section 8 confers powers on the Federal Government to register a person as a citizen residing abroad and who meets the prescribed conditions. Section 9 vests the power in the Federal Government to register a person as a citizen of Pakistan 'by naturalization' who has been granted a certificate of naturalization under the Naturalization Act, 1926 and the proviso empowers to register such person under this category even if no certificate has been issued. Section 10 recognizes the right to citizenship of a married woman and the conditions in this regard have been prescribed. Subject to the conditions prescribed under section 11 the Federal Government may register a child as a citizen. Section 13 describes the conditions and procedure whereby the President may, by order , specify the persons who shall be citizens on account of incorporation of territory . Section 14-B describes conditions regarding citizenship of subjects of Jammu and Kashmir . Section 20 describes the powers of the Federal Government to register a citizen of the Commonwealth or who enjoys the status of a British protected person. Section 14-A was inserted through the Pakistan Citizenship (Amendment) Act 1972 and it prescribes the conditions and procedure regarding 'renunciation' of the citizenship of Pakistan. Section 16 describes the power , conditions and procedure relating to 'depriving' a person of citizenship of Pakistan. Subsection (2) empowers the Federal Government to deprive. citizen of the citizenship if it is satisfied that the latter had obtained tie certificate of domicile or naturalization, as the case may be, by means of fraud, false representation or concealment of any material fact. This power is thus restricted to two categories i.e. 'citizenship by migration' or 'citizenship by naturalization' under sections 6 and 9 respectively . Subsection (3) describes the power to deprive a person of citizenship by naturalization on one of the eventualitie s mentioned in clauses a to c. Subsection (41 vests the power in the Federal Government to deprive a person of citizenship if it is satisfied that the latter has been ordinarily a resident of another country for a continuous period of seven years and, during this period neither of the two events described in clauses a and b have happe ned. Subsection (5) imposes an additional condition i.e. that the Federal Government will not make an order under section 16 unless it is satisfied that it is in the public interest that the person should not continue to be a citizen of Pakistan. As a corollary , the rower of renunciation under subsections (2), (3) and (4) is subject to fulfillment of the condition unambiguously provided under subsection (5). Subsection (6) binds the Federal Government to observe the principles of due process highlighted therein before making an order under section 16. Subsection (7) vests a right in favour of the person who is proposed to be deprived of citizenship, to ask for referrirg his/her case to the 'Committee of Inquiry'. The composition of the said Committee has been described by the legislature. Section 16-A was inserted vide the Pakistan Citizenship (Amendment) Act, 1978 and it describes how citizenship issues would be dealt with it the context of the separation of East Pakistan. Section 19 refers to the power to issue a certificate of citizenship pursuant to the filing of an application by a person if doubts exist regarding the latter's citizenship. Section 18 vests the power in the Federal Government to delegate any power conferred upon it or duty imposed under the Citizenship Act. Pursuant to powers conferred under section 23, the Federal Government has framed the Pakistan Citizenship Rules, 1952 (hereinafter referred to as the 'Citizenship Rules '). The Rules prescribe the procedure and requirements required to be fulfilled in relation to obtaining, renunciation or resumption of citizenship. Rule 8 sets out the procedure in case of a person who claims citizenship under section 4 i.e. citizenship by birth.
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A careful reading of the Citizenship Act as a whole unambiguously shows that it is a complete self-contained special statute to deal with all matters relating to 'citizenship' of the State of Pakist an. The distinct categories have been expressly dealt with. Citizenship by birth or descent, as the case may be, are distinguishable from the other categories. In case of 'citizenship by birth' the person becomes a citizen of Pakistan automatically i.e. by operation of law. The status of such a person as a citizen is not subject to discretionary powers vested in the State as in the case of other categories e.g. citizenship by migration, naturalization etc. Rule 8 of the Citizens Rules would become relevant and attracted in cases where a person 'claims' to be a citizen by birth and seeks to obtain a certificate from the competent authority as an acknowledgment. No such process is required to be adopted by persons who are citizens by birth because it is by operation of law. Section 16 empowers the Federal Government to deprive a person of citizenship of Pakistan in certain specific and clearly described circumstances. The powers of the Federal Government under subsec tions (2) and (3) do not extend to 'citizenship by birth' nor 'citizenship by descent'. The power of the Federal Government in the case of circumstances described under subsection (4) of section 16 covers 'any citizen' but to justify exercising the power , the onus would be on the competent authority to establish the eventualities explicitly mentioned in the provision and, in addition, explain the reasons for being satisfied that it would be in the public interest to deprive a citizen of the latters citizenship. A citizen who renounces citizenship voluntarily under section 14-A may resume it in the manner provided under rule 19-B of the Citizenship Rules. Moreover , in certain specific cases, citizenship can be lost as described under section 16-A of the Citizenship Act. In a nutshell, a person cannot be denied the right of being a citizen nor deprived of it otherwise as provided under the Citizenship Act. The Ordinance of 2000. The Ordinance of 2000 was published in the official gazette on 10-03-2000. The object of its promulgation has been stated in its preamble, inter alia, to provide for the registration of all persons and for the establishment and maintenance of a multipurpose database, data warehouses, etc. Section 2 defines various expressions. The expression "citizen" has been defined in clause (e) as meaning a person who is, or is deemed to be a citizen of Pakistan under the Citizenship Act. Clauses (f) and (g) define the expressio ns "emigrant" and "foreigner", respectively . The Authority has been established under section 3 and its purpose, object, functions and powers are described under sections 5 and 6. Section 8 empowers the Federal Government to frame rules in order to provide for the registration of different persons or classes thereof, including citizens, foreigners and emigrants and for different things or classes thereof. Section 9 provides for the registration of citizens of Pakistan and the requirements required to be fulfilled by an applicant have been prescribed therein. Section 10 provides that the Authority , after registering a person as a citizen, shall issue or renew , or cause to be issued or renewed, in such manner and on terms and conditions, a card to be called a National Identity Card. Section 12 empowers the Authority to issue Overseas Identity Cards to such prescribed class of citizens resident abroad or such prescribed class of emigrants who have got themselves registered in the prescribed manner and such cards are called Overseas Identity Cards. Section 13 empowers the Authority to issue or renew in the prescribed manner and on the basis of the prescribed criteria, terms and conditions, cards to such classes of foreigners resident in Pakistan, whether legal or otherwise, who have got themselves registered in the prescribed manner . Section 18 vests in the Authority the power to cancel, impound or confiscate a card issued under the Ordinance of 2000. Subsection (1) empowers the Federal Government, through an order in writing, to return the card liable to be cancelled, impounded or confiscated through separate orders. However , the legislature has explicitly provided that no order shall be made unless the person has been given notice in writing calling upon him to show cause as to why the order should not be made. Subsection (2) of section 18 restricts the scope of the powers vested in sub section (1) and the same is reproduced as follows.-- "(2) An order under subsection (1) cancelling, impounding or confiscating a card may be made only if there is reason to believe that-- (a) the card has been obtained by a person who is not eligible to hold such card, by posing himself as eligible. (b) more than one cards have been obtained by the same person on the same eligibility criteria. (c) the particulars shown on the card have been obliterated or tampered with; or
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(d) the card is forged." Pursuant to powers conferred under section 44, the Federal Government has made the National Database and Registration Authority (Pakistan Origin Card) Rules, 2002 (hereinafter referred to as 'Pakistan Origin Card Rules ') and the National Database and Registration Authority (National Identity Card) Rules, 2002 (hereinafter referred to as the 'National Identity Card Rules '). Moreover , the Authority , in exercise of powers conferred under section 45 of the Ordinance of 2000, has made the National Database and Registration Authority (Application for National Identity Card) Regulations, 2002 ( hereinafter referred to as the 'Regulations of 2002 '). A combined reading of the Ordinance of 2000, the Rules of 2002 and the Regulations of 2002 shows that the Authority has been established for a specific purpose i.e. to register persons and to maintain the databases etc. The different categories of cards and the criteria for eligibility of each have been described under distinct provisions. For the adjudication of the petitions in hand, the discussion will be confined to the Computerized National Identity Card because of its relevance. The eligibility criterion for issuance of the card has been explicitly prescribed under section 10 read with section 9 i.e. a citizen who has attained the age of eighteen years and has been registered under section 9. The registration of a person and issuance of CNIC under sections 9 and 10 is an affirmation by the State that the latter is a citizen of Pakistan. After issuance of the card, its particulars can only be modified, altered or changed in accorda nce with the procedure and fulfillment of requirements described under Rule 13 of the Rules of 2002. There is no cavil to the proposition that the presumption of truth is attached with the card and the particulars recorded therein . The scheme of the…
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