IN THE SUPREME COURT OF PAKISTAN

(Original Jurisdiction)

Constitution Petition No.______/2023

Senator (r) Farhatullah Babar & Others

………..Petitioners
VERSUS

Federation of Pakistan, through Caretaker Prime Minister of

Pakistan, Prime Minister Secretariat & Others
……………Respondents

Counsel for the Petitioners: Umer Ijaz Gilani, ASC

With Muhammad Sharif Janjua,
AOR
Counsel for the Respondents:
PETITION UNDER ARTICLE 184(3) OF THE CONSTITUION OF THE
ISLAMIC REPUBLIC OF PAKSITAN, 1973 CHALLENGING THE
DIRECTIVE OF THE “APEX COMMITTEE” OF CARETAKER
GOVERNMENT REGARDING MASS DEPORTATION OF AFGHAN
REFUGEES, ASYLUM-SEEKERS AND OTHER “ILLEGAL IMMIGRANTS”

INDEX

Sr. No. Description Date Page No.

1 Concise Statement

2 Constitution Petition under Article 184(3)

Copy of Overview of Refugee and Asylum-

3
Seekers Population

4 Copy of UNHCR-IOM Flash Update

Copy of Regional Refugee Response Plan for

5
Afghanistan Situation (Pakistan Chapter)

6 Copy of Report of UNHCR 03.06.2022

Copy of Report of International Organization for

7
Migration
 8 Copy of Report of Deutsche Welle 05.10.2023

Copy of International Organization for

9
Migration on Undocumented Afghan

10 Copy of Report of Reuters 31.10.2023

Copy of Representations by HRCP and Amnesty

11
International

12 Copy of Joint Statement

13 Stay Application

14 Notice

Certified that the paper book as bound is complete and correct

Advocate-on-Record
For the Petitioners
Dated:-01-11-2023
 IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)

Constitution Petition No.______/2023

Senator (r) Farhatullah Babar & Others

………..Petitioners
VERSUS

Federation of Pakistan, through Caretaker Prime Minister of

Pakistan, Prime Minister Secretariat & Others
…Respondents
PETITION UNDER ARTICLE 184(3) OF THE CONSTITUION OF THE
ISLAMIC REPUBLIC OF PAKSITAN, 1973 CHALLENGING THE
DIRECTIVE OF THE “APEX COMMITTEE” OF CARETAKER
GOVERNMENT REGARDING MASS DEPORTATION OF AFGHAN
REFUGEES, ASYLUM-SEEKERS AND OTHER “ILLEGAL IMMIGRANTS”

CONCISE STATEMENT

Subject Matter and Subject Matter:

Law
● Illegal directive of the “Apex Committee”
of the Caretaker Government regarding
mass deportation of Afghan Refugees,
Asylum-Seekers and Other “Illegal
Immigrants”.

Law:
● Constitution of the Islamic Republic of
Pakistan
● Elections Act, 2017

● International Covenant on Civil and

Political Rights (ICCPR)
● International Covenant on Economic,
Social and Cultural Rights
Which side has filed The Petition is being filed in the original
this Petition? jurisdiction of the Supreme Court of Pakistan
under Article 184(3)

THE CONTROVERSY
The basic controversy The controversy relates to the illegal directive
between the parties: issued by an “Apex Committee” of the
Caretaker Government in pursuance of which
Afghan Refugees, Asylum-Seekers and other
“Illegal Immigrants” have been subjected to
mass deportations. The directive is illegal and
beyond the powers of the Caretaker
Government as enshrined in the Constitution
and the Elections Act.

THE LITIGATION

COURT, CASE NO. & DECISION

DATES
— —

QUESTIONS REQUIRING DECISION

QUESTIONS PETITIONER’S SUBMISSIONS

a. Whether a Caretaker Government The powers of the Caretaker
has the constitutional and legal Government as provided for in the
mandate to make a mass Constitution and the Elections Act
deportation policy which lack the mandate to make a mass
effectively reverses Pakistan’s 45- deportation policy, especially one
year-old tolerant policy toward that would effectively reverse a 45-
immigrants from Afghanistan? year-old tolerant policy towards
immigrants from Afghanistan.

b. Whether the Constitution and the No provision of the Constitution, or

laws of Pakistan allow for mass any law in force in Pakistan for that
deportation of persons who are for matter, allows for mass deportation
the time being residing in Pakistan, of persons who are residing in
without providing any robust Pakistan without providing for a
mechanism for identifying genuine robust mechanism which would
asylum-seekers, refugees and allow for the identification and
Pakistani birthright citizens? separation of the genuine asylum-
seekers, refugees and Pakistani
birthright citizens.

c. Whether coercive deportation of The coercive deportation of illegal

illegal immigrants whose asylum immigrants whose asylum
applications are still pending applications are still pending
violates the principle of non- violates the principle of non-
refoulement, thereby undermining refoulment and its jurisprudence
Pakistan's international obligations developed through international
 and causing a breach of Article 4? conventions and customary
international law. Such coercive
deportation would also violate
Article 4 of the Constitution which
protects the fundamental rights of
all those residing within Pakistan,
irrespective of their citizenship
status.

d. Whether the government’s failure The government’s failure to

to differentiate between birthright differentiate between birthright
citizens and illegal immigrants citizens and illegal immigrants is a
contravenes the fundamental rights violation of the fundamental rights
enshrined in the Constitution of enshrined in the Constitution of
Pakistan read together with Section Pakistan read together with Section
4 of Citizenship Act, 1951? 4 of the Citizenship Act, 1951.

e. Whether the impugned policy The impugned policy amounts to a

amounts to a violation of the violation of the rulings of the
rulings of the Superior Courts of Superior Courts of Pakistan in
Pakistan in Aamir Aman vs. Aamir Aman vs. Federation of
Federation of Pakistan (PLD 2020 Pakistan (PLD 2020 Sindh 533),
Sindh 533), Rahil Azizi versus The Rahil Azizi versus The State (W.P.
State (W.P. No. 1666/2023), Hafiz No. 1666/2023), Hafiz Hamdullah
Hamdullah Saboor v. Government Saboor v. Government of Pakistan
of Pakistan (PLD 2021 305) and the (PLD 2021 305) and the Order dated
Order dated 20.10.2022 of the 20.10.2022 of the Hon’ble Islamabad
Hon’ble Islamabad High Court in High Court in Fazal Haq versus
Fazal Haq versus NADRA and NADRA and Others (W.P. No.
Others (W.P. No. 1254/2022)? 1254/2022).

CERTIFICATE:
Certified that I have prepared this point noted index/concise statement and the same is
considered to be correct.

Umer Ijaz Gilani

Advocate Supreme Court Advocate-on-Record
 IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)

Constitution Petition No.___________/2023

1. Senator (r.) Farhatullah Babar r/o House 24, Street 52, F-7/4,
Islamabad.
2. Senator Mushtaq Ahmed r/o P.O. Karnal Sher Kalay, Ahad Khan,
Tehsil Razzar, District Swabi.
3. Amina Masood Janjua r/o Resident of 40-C-1 Nagi Road, Westridge
1, Rawalpindi.
4. Mohsin Dawar r/o Malik Mir Jan Kot, Derpakhel, Miranshah, North
Waziristan.
5. Mohammad Jibran Nasir r/o H E-9, Askari 3, School Road, Cantt.,
Karachi South.
6. Syed Muaz Shah, r/o Suite 916, Block 6, Park Avenue, Main
Shahrah-e-Faisal, Block 6, PECHS, Karachi.
7. Pastor Ghazala Parveen r/o Vicarage, Holy Trinity Cathedral
Compound, Fatima Jinnah Road, Saddar Karachi.
8. Iman Zainab Mazari, r/o H 248, Street 23, E-7, Islamabad.
9. Ahmad Shabbar r/o Mohalla Rojhan Jamali, Dayra Allah Yar, Tehsil
Jhat Pat, District Jafarabad.
10.Advocate Imran Shafiq r/o Suite 301, Azeem Mansion, Fazle Haq
Road, Blue Area, Islamabad.
11.Luke Victor r/o H M-7/4, Mohallah Khayaban Saadi, Phase 7, DHA
Karachi South.
12.Sijal Shafiq r/o H 297, St 4, Mohalla Akhtar Colony, Karachi South.
13.Rohail Kasi r/o H 11, St. 9, Sector C, Bahria Enclave, Islamabad.

…Petitioners

Versus
1. Federation of Pakistan, through Caretaker Prime Minister of
Pakistan, Pakistan, PM Secretariat, Constitutional Avenue,
Islamabad.
2. Islamabad Capital Territory, through its Chief Commissioner, ICT
Administration Complex, G-11/4, Islamabad.
3. Province of Punjab, through its Caretaker Chief Minister, Chief
Minster Punjab’s Secretariat, 7 & 8 Club Road, GOR-I, Lahore.
4. Province of KPK, through its Caretaker Chief Minister, Sahibzada
Abdul Qayyum Road, Peshawar Cantonment, Peshawar.
5. Province of Sindh, through its Caretaker Chief Minister, Sindh
Secretariat, Kamal Attaturk Road, Karachi.
6. Province of Balochistan, through its Caretaker Chief Minister, Chief
Minister Office, CM Secretariat, Zarghoon Road, Quetta.
7. Apex Committee through Secretary Interior, Room #409, 4th Floor,
R-Block Pakistan Secretariat, Constitution Avenue, Red Zone,
Islamabad.
8. Ministry of SAFRON, through its Secretary, Ministry of SAFRON,
States and Frontier Regions Division (SAFRON), Attaturk Avenue,
Red Zone, Islamabad.
9. Chief Commissioner for Afghan Refugees (CCAR), Ministry of
SAFRON, Attaturk Avenue, Red Zone, Islamabad.
10.National Database and Registration Authority, through its
Chairman, NADRA Headquarters, State Bank of Pakistan Building,
Constitution Avenue, G-5/2, Islamabad.
11.Director General Immigration and Passports, Mauve Road, G-8,
Islamabad.
12.Ministry of Foreign Affairs, through its Secretary, Ministry of
Foreign Affairs, Constitution Ave, G-5/1, Islamabad.
13.United National High Commission for Refugees through its
Country Representative, Diplomatic Enclave 2, Islamabad.
 14.Society for Human Rights and Prisoners Aid (SHARP) through
Chairman, House No. 1086, Street 45, G-16/3
15.Society for Empowering Human Resource (SEHER) through its
Chairman, House No. 04, Bukhari Street, Spinny Road, Quetta,
Balochistan, Pakistan.

…Respondents

PETITION UNDER ARTICLE 184(3) OF THE CONSTITUION OF THE ISLAMIC

REPUBLIC OF PAKSITAN, 1973 CHALLENGING THE DIRECTIVE OF THE “APEX
COMMITTEE” OF CARETAKER GOVERNMENT REGARDING MASS
DEPORTATION OF AFGHAN REFUGEES, ASYLUM-SEEKERS AND OTHER
“ILLEGAL IMMIGRANTS”

Respectfully Submitted:

POINTS OF LAW AND PUBLIC IMPORTANCE

I. Whether a Caretaker Government has the constitutional and legal mandate to

make a mass deportation policy which effectively reverses Pakistan’s 45-year-
old tolerant policy toward immigrants from Afghanistan?

II. Whether the Constitution and the laws of Pakistan allow for mass deportation
of persons who are for the time being residing in Pakistan, without providing
any robust mechanism for identifying genuine asylum-seekers, refugees and
Pakistani birthright citizens?

III. Whether the Constitution and the laws of Pakistan allow for expropriation of
the property of foreigners residing for years in Pakistan, if they do not have
valid visas or other documents entitling them to stay in Pakistan?

IV. Whether coercive deportation of illegal immigrants whose asylum

applications are still pending violates the principle of non-refoulement,
thereby undermining Pakistan's international obligations and causing a
breach of Article 4?
V. Whether the government’s failure to differentiate between birthright citizens
and illegal immigrants contravenes the fundamental rights enshrined in the
Constitution of Pakistan read together with Section 4 of Citizenship Act,
1951?

VI. Whether the impugned policy amounts to a violation of the rulings of the
Superior Courts of Pakistan in Aamir Aman vs. Federation of Pakistan (PLD
2020 Sindh 533), Rahil Azizi versus The State (W.P. No. 1666/2023), Hafiz
Hamdullah Saboor v. Government of Pakistan (PLD 2021 Islamabad 305)
and the Order dated 20.10.2022 of the Hon’ble Islamabad High Court in
Fazal Haq versus NADRA and Others (W.P. No. 1254/2022)?

VII. Whether the impugned policy is corum non judice, having been passed by a
body which finds no mention in the Constitution or the Rules of Business
adopted thereunder? If not, what is the constitutional and legal mandate of
the so-called “Apex Committee”?

I. SUMMARY OF THE PETITION

1. The Petitioners, who are citizens of Pakistan, are compelled to knock the doors of
this Hon’ble Court because of a MASS DEPORTATION DRIVE which the
Respondents have launched against so-called “illegal immigrants” without
providing any robust mechanism for distinguishing refugees, asylum-seekers
and birth-right citizens. This decision, attributed to “Apex Committee” of the
Caretaker Government, is causing a massive violation of fundamental rights of
around 4.4 million persons of Afghan origin who are for the time being in
Pakistan. It is also leading to a deterioration in citizen-state relationship of all the
240 million people living in Pakistan; once state officials get accustomed to
indiscriminately shoving human beings in containers and throwing them out,
there is no limit to where it will end. Not only that, the present decision amounts
to a reversal of Pakistan’s 45-year-old policy of extending hospitality to refugees,
asylum-seekers and even unregistered immigrants – a strategic decision which
falls completely beyond the limited constitutional mandate of the Caretaker
Government. Various national and international human rights’ organizations
have condemned this decision and warn that this would lead to a devastating
crisis. Since this repatriation is not voluntary, nor is the Government of
Afghanistan facilitating the same, it is possible that many of those being
 deported will die of cold and hunger – amongst them would be Pakistani citizens
and genuine refugees who never stood a chance to prove their legal claims.

2. The Petitioners approach this Court purely in the public interest and seek no
relief for themselves. They belong to different walks of life, different ethnicities
and different schools of thoughts; what unites them in is a firm commitment to
the rights guaranteed by the Constitution to all people in Pakistan, especially the
vulnerable and marginalized. Just like Darshan Masih, whose case is cited as
Darshan Masih v. The State (PLD 1990 SC 513), and who was the earliest
beneficiary of the Supreme Court’s exercise of its original constitutional
jurisdiction, the affectees of the present mass deportation drive belong to a
vulnerable and marginalized group, who have historically been unable to
directly access the courts of law to vindicate their constitutional rights. Thus, this
URGENT plea for public interest intervention by the Supreme Court of Pakistan.

II. BACKGROUND FACTS.

3. Since the year 1978, Pakistan has remained home to one of the largest “war-
displaced” populations in the world. At present, according to some government
estimates, there are a total of 3.8 million (thirty-eight lac) people who fall in this
category. There are 4 major categories:
Firstly, POR holders. This includes about 1.32 million people who were
issued Proof of Registration (POR) Cards by the government itself in
collaboration with the United Nations High Commission for Refugees, in
pursuance of the State of Pakistan’s successive “Tripartite Agreements” with the
Government of Afghan and UNHCR. In these agreements, the State of Pakistan
has repeated committed that refugees will only be repatriated on a voluntary
basis. Refugees cannot be forcefully repatriated. The POR cards started being
issued in the early 2000s and have since been renewed. All the POR card has
EXPIRED on 30th June, 2023, leaving their holders liable to police exploitation.
Secondly, ACCs. There are around 8.44 lac people who were issued
Afghan Citizen Cards (ACCs), by the state of Pakistan, in collaboration with the
International Organization for Migration (IOM) and who are still residing here.
Thirdly, post-Taliban arrivals. There are close to 7 lac people who fled to
Pakistan after the Taliban takeover in August 2021 in Afghanistan. Some of these
people came after obtaining visas (issued at extortionate rates) while many
others were permitted by the then government to cross the border without a visa.
 Even those who initially came with visas and are applying for renewals are not
being granted renewals. As a result, there are almost no Afghans in Pakistan
right now with valid visas. Their visas are deliberately not being renewed,
without any speaking orders or plausible reasons.
Finally, the un-registered. There are 1.7 million people who have been
living in Pakistan for decades but have not, for various reasons, been issued any
documents by the government. Capitalizing on this lack of documentation, the at
government is not planning to DEPORT EN MASSE and in a completely
indiscriminate and inhuman way. They have been asked to leave by November
1, 2023; and are not allowed to take more than Rs. 50,000 per family with them,
which effectively means confiscation of the entire belongings of these families
who are generally already very poor. Those who don’t leave by the deadline will
be forcefully deported.

4. It is important to mention that many of those falls in the third and fourth
categories – post-Taliban arrivals and un-documented immigrants – are “asylum-
seekers” in term of Pakistan’s own law as well as international law. This is
because they have registered themselves with SHARP and SEHAR, the local
Partners of UNHCR. These registrations are not being given any credence by the
Government which is completely against the law. The registration amount to a
proof of asylum-seeker status because in 1993 Pakistan signed a Cooperation
Agreement with the UNHCR. It was agreed that since Pakistani state does not
have its own “Refugee Agency”, UNHCR Pakistan will acts as a proxy for
Pakistani state in processing asylum-seeker applications. UNHCR, in turn, has
partnered with local NGOs, the most prominent of which is the Society for
Human Rights and Prisoners Aid SHARP and SEHAR. All those who are
registered with SHARP or UNHCR are considered asylum-seeker and have
historically been allowed to stay in Pakistan. This point has also been judicially
recognized by the superior courts of Pakistan in Aamir Aman vs. Federation of
Pakistan (PLD 2020 Sindh 533), Rahil Azizi versus The State (W.P. No.
1666/2023), Hafiz Hamdullah Saboor v. Government of Pakistan (PLD 2021
Islamabad 305) and Order dated 20.10.2022 of the Hon’ble Islamabad High
Court in Fazal Haq versus NADRA and Others (W.P. No. 1254/2022)

III. PAKISTAN’S 45-YEAR OLD STATE POLICY TOWARD “IMMIGRANTS”

FROM AFGHANISTAN.
5. It is important to realize that these 4.4 million people who are now all at a risk of
being declared “illegal” did not suddenly or randomly end up living in Pakistan.
Since at least 1978, Pakistani state has adopted a relatively flexible border-control
policy towards Afghanistan.

6. The issue of deportation undocumented (and therefore, arguably illegal)

Afghans residing in Pakistan has repeatedly come up before the ELECTED
Federal Cabinets of Pakistan. None of them decided to go for a categorical and
mass deportation policy. Instead, more nuanced and humane solutions were
opted for.

7. For instance, on February 7, 2017, the Federal Cabinet, which was presided by
the then Prime Minister Muhammad Nawaz Sharif, took a number of important
policy decisions for the management of Afghan refugees in Pakistan. Titled as
(REPATRIATION AND MANAGEMENT POLICY FOR AFGHAN REFUGEES)
these decisions were formally conveyed by the Ministry of States and Frontier
Regions vide its letter F 4 (14) –RR/2017 dated 24 February 2017 to all relevant
federal and provincial governments’ ministries and departments (copy of the
letter is enclosed).

Attention is kindly drawn towards (ii) of the said directive that states inter-alia,
“Till such time as the documentation process by NADRA is completed, harassment of
unregistered Afghan Refugees and application of Section 14 of the Foreigners Act,
1946 should be avoided”. Besides, it was also decided “Pakistan should enact her
own Refugee Law/Legislation keeping in view of national interest and prevailing specific
environment” (para iv)

GOVERNMENT LETTER TO PROVINCES IN FAVOR OF REFUGEES

8. It is pertinent to point out that the Cabinet decision of February 2017 still
holds the field as it has not been formally turned down by any of the
successive cabinets that followed.

9. On June 20, 2023, during the tenure of PM Shahbaz Sharif, the Ministry of
SAFRON again wrote letters to the Ministry of Interior RESTRAINING the
Ministry of Interior and other policing agencies from deporting or otherwise
harassing Afghan Refugees. This letter (copied below) mentioned that the issue
of a long-term policy regarding Afghan refugees in Pakistan was still under
discussion before the Federal Cabinet. Until such a decision could be taken by
the elected Cabinet, the status quo be maintained.
 GOVERNMENT LETTER TO LAW ENFORCEMENT AGENCIES IN FAVOR
OF POR HOLDERS

10. Six days after the above-said notification, the Ministry of SAFRON issued
another letter to the State Bank which was meant to secure the property rights of
the refugees and asylum-seekers:

GOVERNMENT LETTER TO STATE BANK IN FAVOR OF REFUGEES

 IV. CAUSE OF ACTION: IMPUGNED DECISION OF THE “APEX
COMMITTEE”/CARETAKER GOVERNMENT WHICH OVERTURNED
PAKISTAN’S 45-YEAR OLD STATE POLICY AGAINST MASS
DEPORTATIONS

11. On October 3, 2023, the “Apex Committee” which purportedly includes senior
members of the Caretaker Government, took the whole world by surprise. Going
well beyond its mandate – to carry out elections – it decided to take a roll back
Pakistan’s 45-year-old flexible and humane policy regarding protecting
immigrants from Afghanistan – documented as well as undocumented ones. The
media suddenly started reporting a decision of the so-called “Apex Committee”,
which as not been notified in the official gazette, that all “illegal residents” in
Pakistan without a valid visa. While framed in somewhat neutral language, the
decision is obviously targeted at the millions of Afghan Refugees who are
 compelled by circumstances to live in Pakistan and have various level of
documentation, none of which is a fully defense against the threat of expulsion.

12. The relevant part of the Apex Committee decision (the “Impugned Decision”),
as reported in various media sources, is as follows:
1. All foreign nationals residing in Pakistan illegally are hereby cautioned to
depart from the country by October 31, 2023.

2. Starting from November 1, 2023, federal and provincial law enforcement

agencies will take all necessary measures to effectuate the apprehension and
forceful deportation of all unlawfully residing foreigners.

3. Effective from October 10, 2023, travel across the Pakistan-Afghanistan border
will require a computerized identity card (E-Tazkira), and from November 1,
2023, only passport and visa holders will be allowed passage. All other forms of
documentation will be deemed invalid for cross-border travel.

4. Commencing November 1, 2023, businesses and properties owned by illegal

foreigner will be confiscated, and legal action will be taken against both these
unlawful business operators and their accomplices.

5. Stringent legal measures will be taken against any Pakistani citizen or

company found providing shelter or support to illegal foreigners in Pakistan after
November 1, 2023.

6. A task force, under the Ministry of Home Affairs, comprising members from
law enforcement and intelligence agencies, will work towards identifying
individuals with counterfeit identity cards and properties acquired through
fraudulent documentation.

7. NADRA has been instructed to promptly invalidate all counterfeit identity

cards, and in cases of identity doubt, DNA tests will be conducted for
confirmation.

8. Information regarding the illegal residence or business activities of foreigners

in Pakistan can be reported through the web portal and UAN helpline.
 Confidentiality will be maintained for those who cooperate with the city
government.

https://twitter.com/IntelPk_/status/1709170444065198578

13. It is worth reiterating that Para 1 of the Decision of the Apex Committee does not
provide any clarity about which category of “illegal immigrants” it is talking
about; and the oral clarification that some government officials are giving on TV
that POR holders and ACC holders are not included in this is only a subsequent
afterthought. The Decision announced by the “Apex Committee” doesn’t
actually clarify that. Also, neither written nor oral government policy statements
have so far clarified the status of those “asylum-seekers” who have filed
application for asylum with SHARP and SEHAR, the local partners of UNHCR
who effectively act as a proxy for the Government of Pakistan insofar as refugee
screening process goes.

14. In subsequent press conferences and interviews, the Caretake Prime Minister of
Pakistan and the Caretaken Minister of Interior, who simply do not have any
mandate to take such policy decisions, have reiterated the decision of the
executive branch of government to carry out “Mass Deportations” against the
illegal immigrants presently residing in Pakistan.

15. Subsequently, various Police Departments all over the country started campaigns
to hound all kinds of immigrants on the pretext that they are “illegal
immigrants”. On October 4, 2023, the Islamabad Police posted:

Islamabad Police

@ICT_Police

‫افراد کے پاس‬503 ‫ افراد کی جانچ کی گئی۔‬1126 ‫غیرقانونی مقیم غیر ملکیوں کے خالف آپریشنز کے دوران‬
‫ فارنر ایکٹ کے تحت کارروائی کرکے مجاز‬14 ‫کسی قسم کے کوئی کاغذات نہیں تھے۔ تو ان کے خالف‬
‫ افراد کو منظور شدہ‬623 ‫عدالتوں میں پیش کیا گیا۔ وہ جوڈیشل ریمانڈ پر ہیں اور مقدمات کا سامنا کررہے ہیں۔‬
‫شناختی دستاویزات پیش کرنے پر رہا کیا گیا۔ اس تمام عمل کے دوران کوئی ناخوشگوار واقعہ پیش نہیں آیا۔‬
‫جرائم پیشہ عناصر کو غیر قانونی مقیم غیر ملکیوں کے ساتھ منسلک کرنا درست نہیں ہے۔ اگر آپ کے آس پاس‬
‫کوئی غیرقانونی مقیم ہو تو پولیس کو اطالع دیں آپ کا نام صیغہ راز میں رکھا جائے گا۔ کسی غیر قانونی مقیم‬
‫ کو پناہ یا مالزمت دینا بھی جرم ہے جس پر قانونی کارروائی ہوسکتی ہے۔‬#ICTP #Islamabad

Translate post

12:21 PM · Oct 4, 2023

16. Again, on October 7, 2023, the Islamabad Police posted this:

Islamabad Police

@ICT_Police

‫ افراد کی جانچ پڑتال عمل میں الئی گئی‬1172 ‫اب تک‬،‫غیر قانونی مقیم غیر ملکیوں کے خالف کارروائیاں جاری ہیں‬
‫ ممکنہ‬19 ‫ مقدمات درج کرکے مجاز عدالتوں میں پیش کیا گیا ہے۔‬69 ‫ غیر قانونی مقیم غیر ملکیوں کو خالف‬511 ‫ہے۔‬
‫ تمام مقیم‬،‫غیر ملکی جن کے پاس پاکستانی دستاویزات تھیں ان کی دستاویزات تصدیق کےلیے نادرا بھجوائی گئی ہیں‬
‫غیر ملکیوں کی سرکاری زمین پر تجاوزات والی آبادیوں میں آگاہی‬،‫غیر ملکیوں کی جیو ٹیگنگ مکمل کرلی گئی ہے‬
‫ گھنٹوں میں مختص شدہ کیمپوں میں منتقل ہونے کی ہدایات‬48 ‫پیغامات نشر کیے جارہے ہیں۔ رضاکارانہ طور پر اگلے‬
‫ جاری کی گئی ہیں۔‬#ICTP

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9:39 AM · Oct 7, 2023

17. As the “deadline” for expulsion draws nearer, many caravans of frightened
immigrants started returning to Afghanistan against their will. To harass them
further, the Government passed a notification saying that they can only carry a
total of Rs. 50,000 per person. This clearly amounts to expropriation of their
property without any legal sanction.

18. As the caravans started moving, the situation became more and more dire. On
October 29, 2023, a group of immigrants who were lumped together in a truck
while returning urgently to Afghanistan, died on account of a road accident.
Again, this is just one example of the kind of horrors which are being unleashed.
And if the mass deportation goes through, worse is expected to come.
 https://www.dawn.com/news/1784726/2-dead-25-injured-as-
trailer-carrying-afghan-families-overturns-in-attock

19. The Petitioners are personally in touch with a number of Afghan refugees living
in Pakistan who are being hounded by the police and are being illegally extorted.
This is only the start of a human rights crisis; much worse is expected unless the
impugned policy is suspended.

20. Recently, both Human Rights Commission of Pakistan (HRCP) and Amnesty
International have issued representations/letters on this issue alerting both
Pakistani authorities as well as the international community of the impending
human rights disaster, if this deportation exercise goes through.

21. That some, not all, of the petitioners in the present petition have previously sent
a representation to the National Commission of Human Rights seeking urgent
intervention; however, the said petition has not borne fruit. Given the urgency of
the matters, the Petitioners are left with no other adequate alternative remedy
 except approaching the highest court of the land in its fundamental rights
jurisdiction.

V. GROUNDS FOR PETITION

A. THE IMPUGNED DECISION IS A MAJOR POLICY DEICSION WHICH

FALLS BEYOND THE MANDATE OF THE CARETAKER GOVERNMENT
UNDER THE CONSTITION AND THE LAWS

As pointed out in the earlier paras of this petition, the issue of undocumented
and possibly illegal Afghan immigrants in Pakistan is not something that has
suddenly cropped up during the tenure of the present Caretake Government and
therefore require urgent resolution. It is a 45-year old issue on which various
elected government of Pakistan have adopted various policies – all of which
were more nuanced and humane than the impugned decision. As late as June,
2023, an elected government pondered over this issue and did not take any
decision in favor of Mass Deportation.

The Caretaker government whose legal mandate under Section 230 of the
Elections Act, 2017 is narrow and whose constitutional mandate under Article
224 is perhaps even narrower, simply does not have the mandate to reverse the
earlier policies and to adopt a whole new policy to this issue. It is BARRED by
Section 230 from taking POLICY DECISIONS.

It is extremely disturbing that instead of doing its job – preparing of Elections -

the Caretaker Government is taking strategic policy decisions whose
consequence will be borne by the people of this country.

For ease of reference, Section 230 of the Elections Act, 2023, is reproduced below:

230. Functions of caretaker Government.—(1) A caretaker Government shall—

(a) perform its functions to attend to day-to-day matters which are necessary to
run the affairs of the Government;
(b) assist the Commission to hold elections in accordance with law;
 (c) restrict itself to activities that are of routine, non-controversial and urgent, in
the public interest and reversible by the future Government elected after the
elections; and
(d) be impartial to every person and political party.

(2) The caretaker Government shall not—

(a) take major policy decisions except on urgent matters;
(b) take any decision or make a policy that may have effect or pre-empt the
exercise of authority by the future elected Government;
(c) enter into major contract or undertaking if it is detrimental to public interest;
(d) enter into major international negotiation with any foreign country or
international agency or sign or ratify any international binding instrument
except in an exceptional case;
(e) make promotions or major appointments of public officials but may make
acting or short term appointments in public interest;
(f) transfer public officials unless it is considered expedient and after approval of
the Commission; and
(g) attempt to influence the elections or do or cause to be done anything which
may, in any manner, influence or adversely affect the free and fair elections:

Provided that sub-sections (1) and (2) shall not apply where the caretaker
Government has to take actions or decisions regarding existing bilateral or
multilateral agreements or the projects already initiated under the Public Private
Partnership Authority Act, 2017 (VIII of 2017), the Inter-Governmental
Commercial Transactions Act, 2022 (XXX of 2022) and the Privatization
Commission Ordinance, 2000 (LII of 2000).

B. THE IMPUGNED POLICY FAILS TO PROVIDE ANY MECHANISM FOR

DISTINGUISING BETWEEN ASYLUM-SEEKRS AND OTHER ILLEGAL
IMMIGRANTS; THEREBY IT VIOLATES THE RULINGS OF THE
SUPERIOUR COURTS OF PAKISTAN IN AAMIR AMAN VS. FEDERATION
OF PAKISTAN (PLD 2020 SINDH 533), RAHIL AZIZI VERSUS THE STATE
(W.P. NO. 1666/2023), HAFIZ HAMDULLAH SABOOR V. GOVERNMENT OF
PAKISTAN (PLD 2021 ISLAMABAD 305) AND FAZAL HAQ VERSUS NADRA
AND OTHERS (W.P. NO. 1254/2022)
 The Petitioner vehemently disagree with the government’s view that all
foreigners living in Pakistan who do not have a valid visa are liable to be
deported. This simplistic view about “illegal immigrants” fails to take account of
the fact that many of these so-called “illegal” and undocumented” refugees were
actually born in this country and, as per Section 4 of the Citizenship Act, 1951,
have a solid claim to birthright citizenship. That they have remained without
documents is because the government is simply not willing to issue them
documents, despite the law and despite court judgments in their favor.

C. Also, those who have POR Cards, ACCs or Pre-screening Slips issued by
UNHCR-sponsored organizations such as SHARP, SEHAR cannot be
considered even remotely as illegals. By all account, the latter category – asylum-
seekers who have slips issued by SHARP and SEHAR – are clearly being
targeted in the present operation.

D. Also, those whom the government itself allowed to come in Pakistan and had an
unstated policy of hosting in Pakistan cannot all of a sudden be called illegals
and deported en masses. This is a gross violation of fundamental rights.

E. This Government’s simplistic stand also fails to take stock of the constitutional
right to asylum which exists in Pakistan and has recently been reiterated by the
Islamabad High Court in the famous case of Raheel Azizi v. State (W.P.
1666/2023) (a copy of which is accessible on the Court’s website)

https://mis.ihc.gov.pk/attachments/judgements/161521/1/
W.P_No._1666_of_2023_Rahil_Azizi_Vs._The_State_638282052901135229.pdf

F. The High Court, in a 21-page judgment authored by Justice Babar Sattar, has
declared that the fundamental rights promised by the Constitution include the
rights of foreigners living in Pakistan; and it follows that those foreigners who
have a claim to refugee-status cannot be forcefully deported – even if they are
undocumented and illegal. To do so would violate fundamental rights. Reliance
is also placed on Aamir Aman vs. Federation of Pakistan (PLD 2020 Sindh 533),
the case of Turkish schools’ teachers whom the government was trying to deport.
In this judgment, authored Justice Munib Akhtar as His Lordship then was, the
 High Court granted a stay against deportation until such time that the teachers’
asylum application was not decided by the UNHCR.

G. THAT THE IMPUGNED POLICY IS IN VIOLATION OF THE PRINCIPLES

INCORPORTATED IN ARTICLE 2A OF THE CONSTITUION

H. THE THAT IMPUGNED POLICY FAILS TO TAKE ACCOUNT OF THE

FACTS THAT MANY OF THE PERSONS BEING DEPORTED OR MADE
LIABLE TO DEPORTATION MAY BE DOUBLY MARGINALIZED ON
ACCOUNT OF FACTORS SUCH AS ETHNICITY, RELGIONS, GENDER
AND SOME OTHER FACTORS.

I. THAT THE IMPUGNED POLICY IS CORUM NON JUDICE. The impugned

policy is corum non judice, having been passed by the so-called “Apex
Committee”. This is a body which finds no mention in the Constitution or the
Rules of Business adopted thereunder. As such, the the so-called “Apex
Committee does not have any constitutional and legal mandate.

J. THE IMPUNGED POLICY FAILS TO PROVIDE ANY MECHANISM FOR

DISTINGUISING BETWEEL BIRTHRIGHT-CITIZENS AND ILLEGAL
IMMIGRANTS; THEREBY IT VIOLATES THE RULINGS OF THE
SUPERIOUR COURTS OF PAKISTAN IN HAFIZ HAMDULLAH SABOOR
versus FEDERATION (PLD 2021 Islamabad 305) AND FAZAL HAQ V.
NADRA (W.P. No. 1254/2022)

K. THE IMPUGNED DECISION VIOLATES ARTICLE 4 OF THE

CONSTITUION READ TOGETHER WITH INTERNATIONAL LAW.

i) Human Rights of Foreigners, especially Refugees under International

Instruments

22. Pakistan has signed numerous major international human rights treaties:
International Covenant on Civil and Political Rights (ICCPR), International
Covenant on Social and Economic Right (ICSER) etc. Some of these conventions
create obligations that state parties have towards foreigners living in their
territory and especially those living as refugees. For instance, Article 2 of CCPR
 promises: “Each State Party to the present Covenant undertakes to respect and to
ensure to all individuals within its territory and subject to its jurisdiction the rights
recognized in the present Covenant, without distinction of any kind, such as race, colour,
sex, language, religion, political or other opinion, national or social origin, property,
birth or other status.” The language of Article 2 makes it abundantly clear that the
legal obligations of a state party extend not only to its citizens but also to all
other persons such as refugees and asylum-seekers who happen to reside in its
territory.

ii) Recognized Rights of Refugees and Asylum-Seekers under International

Customary Law.

23. The principle of non-refoulement – i.e. that a person should never be expatriated
to a state where he or she faces the risk of political persecution – is considered by
jurists to have attained that status of international customary law. International
customary law is that part of international law which every member of the
comity of nations is expected to follow, regardless of whether it has signed any
treaty or not. Therefore, even a state like Pakistan which has not signed the
International Convention on the Status of Refugees, is bound to respect this
principle. This point has been endorsed in numerous judgments of the superior
courts such as the judgment of the Sindh High Court in Najib Zariab Ltd vs the
Government of Pakistan (PLD 1993 Karachi 93) where it held: “the community of
nations requires that rules of international law may be accommodated in the municipal
law even without express legislative sanction provided they do not run into conflict with
the Acts of the Parliament.”

iii) Fundamental Rights of Foreigners under the Constitution

24. The right to due process under Article 4 of the Constitution, which is the
Pakistani equivalent of the American Due Process clause, extends to foreigners in
Pakistan also. It stipulates: “[t]o enjoy the protection of law and to be treated in
accordance with law is the inalienable right of every citizen, wherever he may
be, and of every other person for the time being within Pakistan.”
(Emphasis added)
 25. Furthermore, there are at least 12 fundamental rights mentioned in the
Constitution whose scope has been extended to foreigners through the use of the
term “person.”. These are: Article 9 (Life and Liberty), Article 10 (Arrest and
Detention procedures), Article 10A (Fair Trial), Article 11 (Slavery and forced
labour), Article 12 (Retrospective punishment), Article 13 (Self-incrimination and
double jeopardy), Article 14 (Human dignity and privacy of home), Article 21
and 22 (Religious Oppression), Article 24 (Expropriation) and Article 25A
(Children’s education). The state of Pakistan is under a constitutional obligation
to ensure that these fundamental rights of foreigners living for the time being in
Pakistan are secured. This obligation can only be discharged by addressing the
issues highlighted in the Petition.

26. Summing up, this Court has ample jurisdiction under Article 184(3) to look into
violations of fundamental rights which are mentioned in this Petition, and to
grant the relief sought.

VI. PRAYER

In above mentioned legal and factual submission, it is most humbly prayed that the
Hon’ble Court may kindly:

i. Declare that the Caretaker Government’s decision regarding Mass Deportation

announced by the Apex Committee on October 3, 2023, is illegal and
unconstitutional, being ultra vires Section 230 of the Elections Act, 2017 and the
fundamental rights provisions of the Constitution and set aside the same;

ii. Restrain Respondent No. 1/Federation and its instrumentalities from detaining,
forcefully deporting or otherwise harassing anyone who possesses a POR, ACC,
Asylum-seeker application issued by UNHCR/Respondent No. 6 or pre-
screening slip issued by UNHCR-partners SHARP and SEHAR; this basic legal
principle regarding exemption of is refugee or an asylum-seekers from penal
action has already been settled by the superior courts of Pakistan in Raheel Azizi
v. State (W.P. 1666/2023) and Aamir Aman vs. Federation of Pakistan (PLD 2020
Sindh 533) which rulings the respondents may be directed to implement in letter
and spirit;
iii. Direct Respondent No. 1/Federation and its instrumentalities from detaining,
forcefully deporting or otherwise harassing anyone who was born in Pakistan
and has a claim to birth-right citizenship in accordance with Section 4 of the
Citizenship Act, 1951 and the ruling of the Islamabad High Court in Hafiz
Hamdullah Saboor vs. Federation of Pakistan (PLD 2021 Islamabad 305);

iv. Direct Respondent No. 1/Federation and its instrumentalities to permit

UNHCR and its partner organizations to register and expeditiously process and
decide all the asylum-seeking applications filed by foreigners presently residing
in Pakistan; and

v. Direct Federation/Respondent No. 1 to coordinate with all the relevant federal

and provincial law enforcement agencies to secure the fundamental rights of all
persons for the time being in Pakistan.

DRAWN BY FILED BY

Umer Ijaz Gilani

Advocate Advocate-on-Record

Supreme Court of Pakistan Supreme Court of Pakistan

CERTIFICATE
As per instruction of the Petitioner this is the first Const. Petition filed before this
august Court and not filed any other High Court.

Advocate-on-Record

For the Petitioners

Dated:-01-11-2023
 IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)

CMA No.___________/2023
IN
Const. Petition No.___________/2023

Senator (r) Farhatullah Babar & Others

………Petitioners
VERSUS
Federation of Pakistan, through Caretaker Prime Minister of
Pakistan, Prime Minister Secretariat & Others
………Respondents

APPLICATION UNDER ORDER XXXIII, RULE 6 OF SUPREME COURT

RULES 1980
1. That the above-titled Petition has been filed before this Hon’ble Court by
the Petitioners and the contents of the same may kindly be read as an
integral part of this Application.

2. That the Petitioner has a good prima facie case which is likely to be
decided in favor of the Petitioner.
3. That balance of convenience is also in favor of the Petitioner and if the
stay as prayed for is not granted the Petitioner shall suffer irreparable loss
and injury.

PRAYER

It is humbly prayed on behalf of the above-named Petitioners that this Hon’ble

Court may be pleased to:

(i) Suspend the operation of the Impugned Decision;

(ii) Restrain Respondent No. 1/Federation and its instrumentalities

from detaining, forcefully deporting or otherwise harassing anyone
who is either a refugee or an asylum-seeker and possesses a POR,
ACC, Asylum-seeker application issued by UNHCR/Respondent
No. 6 or pre-screening slip issued by UNHCR-partners such as
SHARP and SEHAR; this basic legal principle has already been
endorse by the courts of Pakistan in Raheel Azizi v. State (W.P.
1666/2023) and Aamir Aman vs. Federation of Pakistan (PLD 2020
 Sindh 533) which ruling the respondents may be directed to
implement in letter and spirit;

(iii) Direct Respondent No. 1/Federation and its instrumentalities from

detaining, forcefully deporting or otherwise harassing anyone who
was born in Pakistan and has a claim to birth-right citizenship in
accordance with Section 4 of the Citizenship Act, 1951 and the
ruling of the Islamabad High Court in Hafiz Hamdullah Saboor vs.
Federation of Pakistan (PLD 2021 Islamabad 305);

(iv) Grant such other relief which this Hon’ble Court may deem fit in
the circumstances of this case may also be granted.

Advocate on Record
Supreme Court of Pakistan
Islamabad
For the Petitioners

Dated:- 01-11-2023
 IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)

Constitution Petition No.______/2023

Senator (r) Farhatullah Babar & Others

………..Petitioners
VERSUS

Federation of Pakistan, through Caretaker Prime Minister of

Pakistan, Prime Minister Secretariat & Others
……………Respondents

NOTICE

To,
1. Federation of Pakistan, through Caretaker Prime Minister of Pakistan,
Pakistan, PM Secretariat, Constitutional Avenue, Islamabad.
2. Islamabad Capital Territory, through its Chief Commissioner, ICT
Administration Complex, G-11/4, Islamabad.
3. Province of Punjab, through its Caretaker Chief Minister, Chief Minster
Punjab’s Secretariat, 7 & 8 Club Road, GOR-I, Lahore.
4. Province of KPK, through its Caretaker Chief Minister, Sahibzada Abdul
Qayyum Road, Peshawar Cantonment, Peshawar.
5. Province of Sindh, through its Caretaker Chief Minister, Sindh
Secretariat, Kamal Attaturk Road, Karachi.
6. Province of Balochistan, through its Caretaker Chief Minister, Chief
Minister Office, CM Secretariat, Zarghoon Road, Quetta.
7. Apex Committee through Secretary Interior, Room #409, 4th Floor, R-
Block Pakistan Secretariat, Constitution Avenue, Red Zone, Islamabad.
8. Ministry of SAFRON, through its Secretary, Ministry of SAFRON, States
and Frontier Regions Division (SAFRON), Attaturk Avenue, Red Zone,
Islamabad.
9. Chief Commissioner for Afghan Refugees (CCAR), Ministry of
SAFRON, Attaturk Avenue, Red Zone, Islamabad.
10. National Database and Registration Authority, through its Chairman,
NADRA Headquarters, State Bank of Pakistan Building, Constitution
Avenue, G-5/2, Islamabad.
11. Director General Immigration and Passports, Mauve Road, G-8,
Islamabad.
12. Ministry of Foreign Affairs, through its Secretary, Ministry of Foreign
Affairs, Constitution Ave, G-5/1, Islamabad.
13. United National High Commission for Refugees through its Country
Representative, Diplomatic Enclave 2, Islamabad.
 Please take Notice that today I filed the above mentioned
Constitution Petition Under article 184(3) of The Constitution of the
Islamic Republic of Pakistan, 1973, on behalf of the petitioners, in the
Supreme Court of Pakistan at Islamabad.

Advocate-on-Record
For the Petitioners
Dated:-01-11-2023