FOREIGNERS ACT 1946By T H Shah

The Foreigners Act came into force on 23rd day of 1946 and provides for the exercise by the Federal Government of certain powers in respect of the Foreigners into Pakistan, their presence and their departures there from, and enacted as follows:

“Citizenship, Proof, Burden, Appreciation of evidence. Accused had failed to produce any documentary evidence to prove his citizenship having been acquired through either birth, naturalization or migration. Passport & National Identity Card produces by accused were, prima facie, forged documents. Even otherwise passport was not sufficient to establish citizenship. Bona fide citizenship could be established by proof of habitation & existence of relatives in Pakistan which was not done. Ultimate burden of proof under S.9 of the Foreigners Act 1946, was on the accused to establish that he was not a foreigner which he had failed to discharge. Conviction & sentence of accused were upheld in circumstances”

DEFINITION: In this Act, the following words and expressions are used in the following senses:

“Foreigner” means a person who is not a citizen of Pakistan.“Prescribed” means prescribed by orders made under this Act.“Specified” means specified by the direction of a prescribed authority.

POWERS TO MAKE ORDERS

1. The Federal Government may, by orders, make provision either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribe class or description of foreigner, for prohibiting, regulating, or restricting the entry of foreigners into Pakistan, or their departure there from for their presence or continued presence therein.

2. In particular & without prejudice to the generality of the foregoing power, order made under this section may provide that the foreigners:--

shall not enter into Pakistan only at such times & by such route & at such port or place & subject to the observance of such conditions on arrival as may be prescribed;shall not depart from Pakistan or shall depart only at such times and by such route and from such port or place and subject to the observance of such conditions on departure as may be prescribed;shall not remain in Pakistan, or in any other prescribed area therein;shall remove himself to, and remain in such area in Pakistan as may be prescribe;shall comply with such conditions as me be prescribed or specified;

i) requiring him to reside in a particular place;ii) imposing any restrictions on his movements;iii) requiring him to produce such proof of his identity & to report such

particulars to such authority in such manner and at such time and place as may be prescribed or describes;

iv) requiring him to allow his photograph and finger-prints to be taken and to furnish specimen of his handwriting and signature to such

authority and at such time and place as may be describe or specified;

v) prohibiting him from association with persons if a prescribed or specified description;

vi) prohibiting him from engaging in activities of prescribed or specifiedarticles;

vii) otherwise regulating his conduct in any such particular as may be prescribed or specified;

viii) shall enter into a bond with or without sureties for the due observance of or as an alternative to the enforcement of any or all described or

specified restrictions or conditions; andviv) shall be arrested and, in the interest of the security of Pakistan detained or

confined.Foreigners as defined in S. 2 and S. 3(2) (e) (i) (ii) include Afghan Refugees who are given political asylum by Government of Pakistan for a temporary period. They are not entitled to unrestricted movement in Pakistan and are not at liberty to carry on their business throughout Pakistan according to their sweet will. Government u/s. 3(2) (e) (i) (ii) is competent to place Afghan refugees at a particular place and their movement can be restricted. Action taken by the Government in the same regard can be challenged in writ jurisdiction.

The Foreigners Act 1946 was amended into Foreign Order 1951 by the Federal Government in exercise of the power conferred by the Section 3 of the Foreigners Act 1946 and in suppression of the Foreigners Order 1939, published in Notification No. 21/84/39, dated: 26th August 1939 by the Home Department of Late Government of India.

DEFINITIONS

In this Order:-

“Registration Officer” means R.O appointed by the Federal Government under Rule 3 of the Registration of Foreigners Rules, 1939, and includes an authority authorized by Registration Officer in writing to perform the duties of Registration Officer under this order;“Civil Authority” means such authority as may be appointed by the Federal Government in this behalf for such area as it thinks fit; and “Port” includes and airport.

The Order extended to the whole of Pakistan and came into force at once, and enacted as follows:No foreigner shall enter Pakistan otherwise than at a port or such place of entry on the borders of Pakistan as a Registration officer having jurisdiction at such port or place may appoint in his behalf or without the leave of civil authority having jurisdiction at such port or place.Leave to enter shall be refused if the civil authority is satisfied that----a) the foreigner is not in possession of a passport or visa valid for Pakistan or

has not been exempted from the possession of passport or visa orb) he is unsound of mind or mentally defective c) he has been sentenced in a foreign country for an extradition offence within the meaning of Extradition Act, 1903; or d) his entry is prohibited under an order issued by a competent authority or

under the specific orders issued by the Federal Government.

3. Where leave to enter is refused to a foreigner, he may be detained at some place approved by the civil authority and may if he has come by sea, be placed temporarily on shore for that purpose, and whilst he is so detained he shall be deemed to be in legal custody and not to have entered Pakistan.

4. No seaman or member of the crew of an aircraft, being a foreigner shall land in Pakistan without a special permit from the Superintendent of Police or any other police officer. 5. No foreigner shall leave Pakistan otherwise than at a port or such recognized place of departure on the borders of Pakistan as a Registration Office having jurisdiction at such port or place may appoint in his behalf, or without the leave of civil authority having jurisdiction on the same.6. No foreigner shall, without the permission of the civil authority having

jurisdiction at such port or place, visit or reside in any prohibited place as defined in the Official Secrets Act7. No foreigner shall, without the general or specific permission in writing of

the civil authority, enter into premises relating to or be employed in connection with supply to the Government or to the public light, petroleum or

eater.8. Any foreigner shall bound to comply with the orders of a civil authority

relating to his residence, movement, association with the persons, or possessions as specified in the order.

9. Foreigners can be expelled out from the cantonments by the military officer on the orders given to it by civil authority.10. Civil Authority is competent to arrest and detain the foreigners in the interest of the security of Pakistan.

CRITICAL ANALYSIS

It is sorrow to say that Pakistan is not signatory to the 1951 Convention concerning the Statues of Refugees and the 1967 Protocol; similarly it lacks substantial law or policy on refugees. As a result refugees are treated under the Foreigners Act 1946. As Pakistan has world's largest refugee populations for a quarter century, in spite of this there is little understanding among law enforcement bodies or the judiciary of refugee law. Similarly, Pakistan does not have domestic asylum on its land, and resultantly, asylum seekers & refugees become victim of the criminal justice system. There is great lacuna concerning legal status of refugees in Pakistan and the Constitution lacks provisions for refugees and they are considered as illegal immigrants according to the laws. Due to this lacuna, the asylum seekers and refugees continue to face arbitrary arrest and harassment. This phenomenon also distorts the image of Pakistan in the world.

Taking nature of the gravity of the matter the Parliamentarians Commission for Human Rights has submitted it’s the bill suggesting amendments in Foreign Act 1946.

1. Amendment of Section 2, Act XXXI of 1946.- In the Foreigners Act, 1946 (XXXI of 1946), hereinafter referred to as the said Act, in Section 2 after paragraph (c), the following new paragraphs shall be inserted, namely:-

(d) “Asylum Seeker' means a person who seeks recognition and protection as a refugee.”(e)‘Refugee’ (i) Any person who is outside his country of origin, and who is unable or unwilling to return to, and is unable or unwilling to avail himself of the protection of that country because of a well-founded fear of persecution on account of race, religion, sex, nationality, ethnic identity, membership of a particular social group or political opinion.

(ii) Any person who is owing to external aggression, occupation, foreign domination, serious violation of human rights or other events seriously disrupting public order in either part or whole of his country of origin, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin.

(f) “Endorsing Authority’ means, United Nations High Commissioner for Refugees, National Aliens Registration Authority, Commissionerate for Afghan Refugees or any other authority established or recognized by the Federal Government.”

2. Insertion of new Section 10A, Act XXXI of 1946. - In the said Act, after section 10, the following new section shall be inserted, namely: -

“Section 10A. - The letter of concern, permit, card or any other document, determining the status, issued to person defined in paragraphs (d) and (e) of section 2, by the Endorsing Authority empowered to do so shall be considered as legal permission to stay in Pakistan and the penal provisions of this Act shall not apply to him.”

3. Amendment of Section 11 (3), Act XXXI of 1946. - In the said Act, sub-section (3) of section 11 shall be substituted by the following, namely: -

“(3) Any police officer or authority empowered under this section, shall obtain search warrant from the court to enter into a dwelling house or property.”

4. Amendment of Section 14B, Act XXXI of 1946. - In the said Act, in section 14B, after clause (ii) the following proviso shall be inserted, namely: -

“Provided that asylum seeker whose case is pending for the determination of status with the Endorsing Authority defined in Section 2(f), shall not be deported unless his case is finally disposed.”

Omission of Section 15, Act XXXI of 1946:- In the said Act, Section 15 shall be

Following recommendations can fill the void in the legal structure:

All law institutions should teach international law as a complete subject with customary law.A short course on refugees’ laws should be started for professional lawyers and police officers.Provisions should be provided in Constitution on refugees laws.

(The writer is associated with the PFP as Director Research. He could be contacted at:tajammulhs@gmail.com)