Question of citizenship of Pakistan is determined under Pakistan Citizenship Act, 1951 (Act II of 1951), which provides comprehensive formula for regulating the affairs like acquisition, loss, abandonment and deprivation of citizenship. Section 10 of the Pakistan Citizenship Act, 1951 entitles male Pakistani citizen to earn citizenship for his foreigner wife on attainment of her certificate of domicile and taking the oath of allegiance in the prescribed manner. The law, however, does not explicitly recognize the same right for the foreigner husband of a Pakistani female citizen. Two bills have been moved in the National Assembly on this subject, which are introduced below to be followed by comment on both these bills.
Pakistan Citizenship (Amendment) Bill, 2008
Pakistan Citizenship (Amendment) Bill, 2008 proposes that following new section 10-A should be inserted in Citizenship Act:
“10-A. Married men:- A man who is married to a woman who is citizen of Pakistan shall be eligible to apply for registration as a citizen of Pakistan after fulfilling the conditions as laid down in section 10 of this Act for a woman.”
In the statement of objects and reasons, the movers of the bill maintains that female marrying Pakistani male are entitled to acquisition of citizenship of Pakistan through a prescribed procedure and is, therefore, expedient to bring an amendment dealing with married men in the same manner as married women in Pakistan to apply for being registered as a citizen of Pakistan after fulfilling the same conditions as are required for a woman.
Pakistan Citizenship (Amendment) Bill, 2010
This bill proposes that in section 10 of the Pakistan Citizenship Act, 1951, the words ‘woman’ or the plural expression ‘women’ should be substituted with the words ‘person’ or ‘persons’ as the case may be with the effect that this provision of law will not remain gender specific and will carry same rights and procedures for everyone.
The statement of Objects and Reasons of the bill is as follows:
“Section 10 of Pakistan Citizenship Act, 1951 is discriminatory and in contradiction with Article 25 of the Constitution that ensures equality of rights for all. It is also against Pakistan’s international commitments.
Further the Federal Shariat Court, in exercise of its powers under clause 3(a) of Article 203D of the Constitution took suo-moto notice of the discriminatory section of the Pakistan Citizenship Act, 1951 that denied a married Pakistani woman the right to get Pakistan’s citizenship for her foreign spouse; while a married man was entitled to obtain Pakistan citizenship for the foreign spouse; requiring the President of Pakistan to take suitable steps for amendment of Section 10(2) and other provisions of the said Act.”
Observations and Comment
Section 10 of the Pakistan Citizenship Act has remained a point of discussion for a long time and it has been termed discriminatory and in contradiction of Article 25 of the Constitution of Pakistan, which ensures that “All citizens are equal before law and are entitled to equal protection of law” and that “there shall be no discrimination on the basis of sex.” Successive governments have, however, resisted amendment in this provision of law citing security related apprehensions.
Federal Shariat Court of Pakistan had taken suo moto notice of the issue on a news item in 2006 to determine whether or not the section 10 of Pakistan Citizenship Act was “discriminatory and repugnant to the injunctions of Islam and violative of principles of democracy, equality and social justice, as enumerated and laid down in the Holy Quran and Sunnah.” In response to the Court notice, the Ministry of Interior filed a reply, which was duly approved by the Ministry of Law, Justice and Human Rights and the provincial governments. This reply carried clear reluctance in giving the same right to the male foreign spouse of a Pakistani woman as are available to female spouse of a Pakistani man mainly on security related reasons and on apprehension that such step may provide legal cover to large number of illegal immigrants residing in Pakistan. Though it was impliedly conceded that section 10 of the Act is discriminatory but it was maintained that “keeping in view the implications of the case and as a matter of state policy, the Ministry in unequivocal terms opposed gender equality in the best interest of the country.” It was also stated that “Section 10 of the Citizenship Act, 1951 is not against any specific verse of Quran and Sunnah.”
After thoroughly examining various aspects of the issue and hearing all those who could have been concerned, the Court, however, held section 10(2) of the Citizenship Act as discriminatory, in violation of Articles 2-A and 25 of the Constitution of Pakistan, against international commitments of Pakistan and ‘most importantly’ in repugnance to Qur’an and Sunnah. The Court called upon the President of Pakistan “to take suitable steps for amendment of relevant section 10 (2) and other related provisions of the Citizenship Act, 1951 within a period of six months” so that appropriate procedure could be provided for granting Pakistani citizenship to a foreign husband of a Pakistani woman.
The version of the Ministry of Interior before the Court needs to be considered at some length because they also shed light upon nature and origin of some apprehensions being found in the minds of policy makers of Pakistan with respect to right of Pakistani women to earn citizenship for their foreigner spouse. These apprehensions still persist and no legislation has yet been made to give effect to judgment of the Court. Among the reasons that were explained for not giving the right in question to women were security concerns stated in these words: “apart from social/economic implications, the provision can also be used by any foreign country to plant their agents in Pakistan” because “the foreign husband after marrying a Pakistani lady and obtaining Pakistan nationality would be free to divorce Pakistani lady and move freely in Pakistan.”
The Court, however, dismissed these apprehensions and said that “grant of nationality would remain within the domain of discretion of the Government of the country which may refuse it for reasons of national security or public interest.”
While it is a fact that there are not many women who would be facing this particular problem, it is also true that it may and does cause problems for some. More significant, perhaps, about this law is its oft-repeated depiction in reports, op-eds and propaganda articles as an evidence of gender based laws in Pakistan.
The version of the Government of Pakistan as presented in the Court also carries weight because a foreigner male may terminate his marriage through pronouncement of divorce ’ and pose security risk to the country. The right to citizenship to male spouses of Pakistani citizens may, however, be qualified so that such risks may be avoided. The legislators could consider the Indian remedy to such apprehensions where a person (male or female) married to an Indian citizen may apply for citizenship after ordinary residence of at least five years immediately before filing an application for citizenship. Similarly, the citizenship of such foreigner may be subjected to review in the event of separation of the couple.
While this comment may not be concluded with a categorical conclusion to legislate upon or reject legislative proposal to amend the law, it could safely be said that there is no harm in seriously considering an amendment after Federal Shariat Court judgment. If the government fails to comply with the decision or to satisfy the Court on its version, it will be considered a serious lapse. Stated judgment is very clear to show that the Court could not be convinced of a real security threat in giving citizenship to foreign spouses of Pakistani women. According to this decision, relevant government authorities and institutions, who decide each application for citizenship distinctly, may refuse any case if it appears dubious. More importantly, the advice of the Court has to be heeded to.