Ethnic discrimination?

[Shahzad Shameem]

https://mail.google.com/mail/?zx=at7uiwz2oler&shva =1#compose

Ethnic discrimination?
Legal eye

Saturday, May 30, 2009
Babar Sattar

The writer is a lawyer based in Islamabad.

A naked ugly form of ethnic prejudice is fettering the right of our wretched brothers and sisters displaced from Swat to move freely and settle anywhere across Pakistan. The invidious stance against the temporary settlement of IDPs in Sindh adopted by Sindh political parties (JSQM, and in a more equivocal yet equally unmistakable manner by the MQM) exposes the ethnic fault-lines dividing our national fabric and lack of generosity of spirit of various political actors. But more importantly the ease with which fundamental rights of a vulnerable group of citizens can be transgressed in pursuit of selfish ethnic interests raises serious constitutional questions. Article 15 of the Constitution holds that “every citizen shall have the right to remain, and subject to any reasonable restriction imposed by law in the public interest, enter and move freely throughout Pakistan and to reside and settle in any part thereof.” This right to reside and settle in any part of Pakistan is not merely an individual right. It is an imperative feature of our collective existence and recognition as a state wherein the various federating units of the country are subsumed into one coherent whole called Pakistan.

The MQM as well as the PPP-led government in Sindh is aware that imposing travel restrictions on IDPs (akin to seeking a visa to enter Sindh) is barred under the Constitution. Conscious of the legal constraint, the Sindh government, goaded by the MQM, has simply resorted to hypocrisy and duplicity in dealing with IDPs. The official line now is that the IDPs are welcome to settle anywhere in Sindh subject to mandatory registration, though the government will not facilitate the IDPs by setting up habitable camps any place half-decent. In affect the Sindh government while not imposing an outright prohibition on the entry of IDPs in Sindh is ensuring the same outcome by (i) pursuing administrative policies and plans that promise a life of extreme hardship to the IDPs if they venture into Sindh, and (ii) allowing MQM and JSQM to create a law and order situation that would jeopardize the security of Sindh-based Pushtuns should Pushtuns IDPs seek refuge in Karachi.

The formal arguments against the relocation of IDPs to Karachi and Sindh have been three-fold. One, Farooq Sattar has vociferously opposed the arrival of “strangers in Sindh” on the ground that the Taliban and other terrorists could enter the province in the garb of IDPs and threaten the security of the province. Two, Shazia Marri has argued that “Sindh is already overburdened as far as resources and population are concerned” and thus cannot support influx of huge number of migrants in the form of IDPs. And three, the most moronic voice of the ruling PPP-regime has argued that IDPs might disappear if allowed to move freely all over the country, which we “cannot afford after the bitter experience of the Afghan refugees.”

While none of these arguments really wash, the third argument is the most ridiculous. IDPs are not foreigners. Each of them has been promised the same constitutional rights as a Pakistani as those afforded to Ms Fauzia Wahab. And secondly, the big lesson from the Afghan refugee crisis was that it is preferable to mainstream refugees and integrate them within the society rather than keep them in squalid conditions at the fringes where they become even more vulnerable to violent ideologies and criminal ways.

The apprehension that some Taliban might escape Swat camouflaged as IDPs is legitimate. But is it legal to resist the entry of all IDPs into Punjab or Sindh on the basis of such apprehension? If the threat is real, what about the security of the residents of NWFP, if the IDPs are to be restricted to their province, especially when they are already disproportionately bearing the brunt of the insurgency as well as the military operation against it? Further, what is the legal basis of introducing a mandatory regime to register IDPs? The equality clause of our Constitution (Article 25) holds that “all citizens are equal, before law and entitled to equal protection of law.” While the law allows differential treatment on the basis of reasonable classifications, would it be reasonable to subject the ill-fated IDPs to forced internment or registration regimes on the basis that they have been displaced from a region less than one percent population of which is involved in an insurgency?

The government has a right to introduce a voluntary registration regime to enable refugees to derive benefit from exclusive relief and rehabilitation programmes set up for such IDPs and ensure that non-qualifying citizens don’t devour the resources earmarked for displaced citizens. The government has a right to ensure that all IDPs possess national identity cards like all other citizens. But it is impermissible to use a mandatory registration regime to fetter the freedom of movement of the IDPs as that would fall foul of Article 15 of the Constitution, or use such administrative measures as a proxy to monitor and regulate internal migration of citizens of Swat in violation of Article 25. The federal government and the provincial government have a right and obligation to take measures to protect the lives, property and security of citizens. But in discharging such obligation, can they employ programs that undermine the fundamental rights of a select class of citizens?

Hypothetically speaking, if statistics establish that all insurgents in Pakistan are Pushtun, can we then reasonably treat all Pushtuns as terrorists and bar their travel to the rest of the country? Such measures or approaches to law enforcement have been used across the world by governments indifferent to the need to protect fundamental human rights. But when scrutinized judicially, they have always been labelled as impermissible forms of profiling that violate equal protection provisions of the law. If we cannot profile IDPs as prospective suicide bombers and terrorists, is there any other ground to force a registration regime upon them that could pass muster under the Constitution? There are hundreds of thousands of citizens that relocate within the country each year from rural to urban areas or from one province to another. If we do not have a national law that requires the registration of such internal migrants, how can we force IDPs to register with provincial or federal authorities except for the explicit purpose of benefiting from IDP-exclusive grants and facilitation programs?

The argument about limited resources of Sindh and Karachi is equally misguided. What legal authority does the Sindh government or the Punjab government or the parties controlling these provinces have to rule that their cities and towns are overstretched and can take no more people? Can cities and towns within provinces decide that their resources should not be divided up any further and no more citizens from rural areas would be admitted into such urban centres? To the extent that certain subjects – i.e. health, education etc. – fall within the legislative authority of the province, the province can set residency requirements and offer subsidized services within such areas to the residents that qualify. But if we begin to allow each province to formulate its own immigration policy, the result would not be more provincial autonomy but the fragmentation of Pakistan along ethnic lines.

The bottom line of the Karachi IDP mess is that Sindhi parties led by the MQM are trying to use the security threat and other nonsensical arguments to offset the demographic threat posed by the presence and growth of a Pushtun population in the city. Concentration of more Pushtuns in Karachi (whether they are IDPs or others simply trying to make a better living) would influence the electoral outcome in various constituencies in Karachi and consequently dilute the political weight of the MQM . Further, while the growth in the Urdu-speaking population that constitutes the support base for the MQM will only be organic, there is a huge reservoir of Pushtuns in NWFP whose migration to Karachi could quickly swell the ANP’s support base in the city. The MQM must understand that no amount of coercion will succeed in freezing the demographic statistics of Karachi that presently support the MQM. To sustain its influence the MQM will need to build on its service delivery credentials to attract support from Karachiites across ethnic lines, instead of continuing to treat the city as a personal fief and relying on fear-mongering tactics – as was evident from the tragic incidents of May 12, 2007 and the treatment meted out to Imran Khan in refusing him entry into Sindh.

Notwithstanding the questionable policies and politics of our political parties, it is for the judicature to ensure that the IDP policy and the manner in which it is implemented does not make a mockery of the fundamental guarantees enshrined in our Constitution. Based on the announcements made by the federal and provincial governments there is a perception that the IDP registration programme is a mandatory one, which prima facie sounds unconstitutional. Further, the registration programme and establishment of camps seems to be designed with the intent of dissuading IDPs from freely moving to other provinces. This is a fit case for the superior judiciary to subject the policies of the federal and provincial governments to greater scrutiny and ensure that the IDP policy doesn’t transgress the constitutional rights of a vulnerable group of citizens in terms of its intent or effect