A few days ago, the Federal Caretaker Cabinet held a meeting regarding the growing threat of terrorism and militancy within Pakistan. The said cabinet, absent any thought of whether they have the authority to formulate new security policies or not, or whether the impact of devising such policies could be devastating for the state, decided to shift all the blame for deteriorating security on Afghan refugees, which came as no surprise. The caretaker cabinet also announced that 1.1 million Afghan refugees without documentation have till November before they will be forcefully evicted from Pakistan. This news was met with massive outrage as international and local humanitarian organizations called such a move myopic and an illogical take on the worsening security situation.
Before we discuss the legality of the forceful eviction of Afghan refugees, we must first discuss under whose authority is a caretaker government empowered to make such a policy decision. It is now a settled principle of law that a caretaker government cannot make policy decisions, especially those that can have long-term effects on the country, as well as the incoming government. The Supreme Court has clearly laid down this principle in 2021 PLD 313 and the same principle was cemented by the Peshawar High Court and the Lahore High Court in 2022 PLD 100 and 2023 CLC 1535 respectively, wherein the courts stated that the caretaker government can only continue day-to-day policies till the elected government comes to power.
Even if we take into account the recent amendments to the Election Act 2017, they still do not allow the caretaker government to make such serious policy decisions, as the amendments only allowed for the implementation of the IMF program. There is no doubt that the caretaker cabinet does not have the power to make such a policy decision, especially when the mess brought forth by such a policy will have to be cleaned up by the incoming government. In addition to the burden such a precedent may create on incoming governments, an unelected institution cannot be allowed to make such policy or reform, as they are not the representatives of the people.
An unelected caretaker government cannot announce such a serious policy in such a discretionary manner. Only the elected government has the power and democratic authority to make such a policy.
Furthermore, Pakistan cannot forcefully evict Afghan refugees, especially if those refugees face threats in their home country, as it is against International Humanitarian Law. Whilst Pakistan is not a signatory to the 1951 Refugee Convention or the 1967 Protocol, that does not mean that Pakistan can take any inhumane action that it sees fit regarding refugees. The principle of non-refoulment is now considered a legal customary principle in International Law. The International Court of Justice in the judgment Nicaragua vs United States of America, held that the conduct of states following such rules is sufficient for the existence of customary law and any instance of the contrary should be treated as a breach rather than the formation of a new rule.
Considering the fact that the principle of non-refoulment, or returning an asylum seeker to their home country has been declared as an act contrary to International Humanitarian Law in multiple treaties as well as the United Nations Declaration of 1967, it can be fairly stated that the rights of the refugees are no longer enshrined solely in aforementioned convention and protocol. Further evidence of this customary law can be perused from the fact that in addition to the 1967 Declaration, the UN General Assembly passed Resolution 37/95 in 1982 regarding principles of asylum and non-refoulment and then in 1989, Resolution 44/137, which called upon all states to refrain from taking steps that would jeopardize the institution of asylum which was further cemented in Resolution 45/140 of 14 December 1990, Resolution 46/106 of 16 December 1991 and in Resolution 47/105 of 16 December 1992. In Resolution 48/116 of 21 December 1993, the General Assembly called upon "all States to uphold asylum as an indispensable instrument for the international protection of refugees, and to respect scrupulously the fundamental principle of non-refoulement."
It is clear that Pakistan cannot act as if International Refugee Law is not applicable and thus Pakistan cannot announce an arbitrary refoulment policy. Not only do such announcements diminish the international standing of Pakistan as a leading refugee host nation, but they also create fear and insecurity among the refugee population, leading to human rights abuses. Barely a week has passed since this announcement and already news is coming in that Afghan refugees are being hunted down by the police with many paying them protection money to escape molestation. Others are being asked to shut down businesses with many among them complaining that individuals are looking to purchase their material stock and establishments at throwaway prices. There is fear among them and it is reminiscent of the subsequent forceful eviction in 2017, which saw many Afghan refugees’ properties being looted and houses simply taken over because they were being repatriated. Families were broken apart back then, and it is looking quite clear that this drive will be no different.
There is no doubt that rising militancy has created an atmosphere of fear in Pakistan, and it is very easy to blame illegal immigrants and refugees for our security failures, but the government of Pakistan must remember that it has repeatedly stood for refugees all over the country and has been a shining example of how nations must bear responsibility for an individual that has nowhere else to go.
The 2017 repatriation drive ended when too many abuses were being reported and the government came under severe pressure to formulate a proper procedure. It is true that Pakistan has played generous host to Afghan refugees for decades and since the taking over of Afghanistan by the Taliban, Pakistan has come to host an additional 600,000 refugees, yet it is due to these complications that Pakistan cannot arbitrarily announce a free-for-all a month from now. It must formulate a proper procedure for repatriation. The first thing it must do is not have an unelected caretaker government announce such a serious policy in such a discretionary manner. Only the elected government has the power and democratic authority to make such a policy. When the elected government comes to power, it must immediately pass refugee legislation, which despite decades of hosting refugees, is absent in Pakistan. This legislation must contain detailed procedures regarding documentation and repatriation of refugees and this repatriation must be done through a proper state institution rather than leaving innocent families to the mercy of the corrupt local law enforcement agencies and wolves that come with them.
Refugees must be protected and repatriated with dignity and as for those who have spent decades here, have families here and have played an important role in the growth of the country, the legislative assembly must come together to determine once and for all their legal status so that this ball that has been kicked around since 1977 can finally be answered and that decision by the parliament must be respected by the judicature and the executive, neither of whom have the authority to determine who can and cannot be citizen or refugee in Pakistan.
There is no doubt that rising militancy has created an atmosphere of fear in Pakistan, and it is very easy to blame illegal immigrants and refugees for our security failures, but the government of Pakistan must remember that it has repeatedly stood for refugees all over the country and has been a shining example of how nations must bear responsibility for an individual that has nowhere else to go. Pakistan, through its actions, has played a leading role in transforming the rights of refugees regarding refoulment into customary international law. If Pakistan undertakes an inhumane and devastating refoulment policy, then it will tarnish all that goodwill, and at a time when Pakistan’s international outreach has been severely limited, adding refugee abuse to the growing list of human rights abuses in the country will have a devastating effect on its international standing.