The “Rule of Law” is the legal system’s most renowned and prominent cornerstone. A quid pro quo legal bond exists between a person and the state. The state provides an individual with a distinct political identity accompanied by definite rights in return for specific duties which they owe to the nation at large. Therefore, the status of a person as a “citizen” is crucial to their security and well-being. This status is also vital for the eligibility for certain fundamental rights enshrined in the Constitution. The Citizenship Act 1951 (the Act) defines the concept of citizenship in Pakistan.
Under the Constitution, only citizens shall be treated according to the law and enjoy equal protection. Therefore, Article 25 is essential because it promises equality before the law. Consequently, having the right to become a citizen in Pakistan is precious.
Under Section 10 of the Act, this most valuable right is extended to foreigners marrying Pakistani nationals. However, it is stained by discrimination against Pakistani women. This provision does not treat men and women equally. It entitles the foreign wife of a Pakistani man to the country’s citizenship while denying the same to the foreign husband of a Pakistani woman. This blatantly violates Article 25 of the Constitution, which promises equal treatment to all citizens. Pakistani women have rightfully challenged it for their foreign husbands in the courts of law. The unconstitutionality of this provision was successfully challenged in 2008 before the Federal Shariat Court (FSC), which declared it both unconstitutional and un-Islamic. The provision was in violation of Articles 25 and 2A of the Constitution. Article 2A promises equality of status, opportunity and before the law. In light of this monumental judgement, the Peshawar High Court reaffirmed the FSC ruling this month by declaring a Pakistani woman’s Afghani husband entitled to a POC by NADRA.
Patriarchy is so deeply rooted in the structure of our government and society that even when viewing the same situation, anything favouring a woman is considered problematic. The question of whether foreign husbands of Pakistani women should be granted citizenship was resolved by the FSC in Pakistan more than a decade ago. Yet, fifteen years later, Pakistani women still have to plead to the courts to have such a mandate followed. The Government of Pakistan would rather ignore multiple international conventions and precedents which declare there should be no discrimination based on gender than amend a flawed law. Such government sentiments were reflected in the Ministry of Interior’s reply in 2008 in front of the FSC. It should be noted that this reply was duly approved by the Ministry of Law, Justice and Human Rights and the Provincial Governments. This means that the uninformed reply was not only by a person who at that time had the greatest influence on law and policy but also by other crucial government departments, namely those concerned with human rights.
The then-minister, in clear terms, endorsed the inequality of the genders in our society. For the then-minister, a foreign woman marrying a Pakistani man could not be equated to a foreign man marrying a Pakistani woman. It is amusing how the Government fails to recognise the logical flaws in what they consider sound justifications. For them, the safety of an entire nation rests in the hands of women. Marriage to a foreign man threatens Pakistan’s national security because it allows illegal immigrants to reside in Pakistan. However, a man marrying a woman who is also foreign does not. The Government views women as so weak and gullible that entitling them to such a right will open it to misuse by illegal immigrants such as Afghan refugees and Bengalis who have no intention of returning to their country. Unlike foreign wives, a foreign husband is seen as a flight risk who can divorce a Pakistani woman after obtaining nationality and reside freely anywhere in the country. When making such groundless claims, the Government seems to forget the concept of khula, whereby a woman may get a divorce without her husband’s consent. 10,312 cases of divorce, khula, maintenance and guardianship were filed in Peshawar alone from January 2021 till November of the same year. Earlier in 2020, 5,891 cases of khula were filed by women across Sindh over the last two years and were pending trial before the family courts.
The opposition to gender equality is not in the best interest of the country, but simply another obstacle and a step backwards from all the progress Pakistani women have tirelessly fought for centuries to make. The Peshawar High Court’s judgement is appreciated, but we have seen before how good verdicts are passed but not implemented.