Expulsion of Muslim foreign students

DR FAROOQ HASSAN

It has been widely reported in the press that all foreign students from Islamic countries have been expelled from their religious institutions in Pakistan as well as ordered to leave the country by the end of December 2005. Apparently this order applies to everyone in such a category irrespective of whether they are in possession of a valid visa and travel documents. This measure of the Musharraf government is to purportedly advance its role in the war against terrorism. The matter has been opposed by religious oriented political parties on the grounds of a major policy "tilt" towards anti-Islamic elements in the giving of such an order by the federal authorities.

However, irrespective of policy considerations about the respective stands the two protagonists the essence of which is by now well known, what needs to be examined is the constitutional and legal vires or justification of this decision. On what legal grounds is this action of the Pakistani Federal Government sustainable, if at all? Let us briefly examine those issues which are prima facie significant in such an analysis.

The jurisprudential rationale of the Musharraf decision patently suffers from a number of patent legal infirmities. First, without giving reasons which are legally sustainable, no action can be taken against anyone who is on Pakistani soil without due process of law. That is clearly the established law of the realm. Secondly, there is no conception in any civilised country's jurisprudence that allows the state to pass "omnibus" orders to be valid against individual people.

These are orders that not given in specific cases but against a "class". Such powers just do not exist and are utterly non-sustainable in a court of law. By the established norms of the legal philosophy of courts of major Anglo-American legal systems and of the Pakistani superior courts, any such administrative decision is presumptively steeped in "male fides". The US government did so against the people of Japanese origin during World War II which is to this day regretted by its successive administrations. However, Japan had attacked the US at Pearl Harbor; no Muslim country has attacked Pakistan to remotely even "morally" permit such a policy. International legal rules regarding travel and rights of ingress and egress or visiting other countries were theoretically laid down, inter alia, in the Helsinki Accords many years ago. Such law ensures at least legal doctrinal aspects of this matter. No country can discriminate in the grant of such facilities. Further once admitted, no prejudicial action can be taken without recourse to local law. Such local norms must be at least of the level of the minimum international standards. Pakistan, which is usually cited as amongst the worst offenders of the immigration laws of other countries, is usually at all mentionable international fora, the leader to stress that whether or not the person is in any foreign country, he should be afforded the complete procedural safeguards before being subject to an order of deportation.

Indirectly this is to defend its export of illegal manpower to other countries with the government's connivance or by a liaison of corruption between such illegal visitors and the border or airport government officials. As such it is highly strange that the government herself passes an order of omnibus expulsion (in law deportation) of nationals of other countries (in this case Muslims from Islamic states), without the least bit of trouble of following any legal formalities mandated by law. By "law" I mean here both domestic and international law. I will briefly examine both such norms to submit that the action of the present regime is at best the worst form of apologists' behaviour. At worst it represents a terrible and willful disregard of fundamental rights of foreign people lawfully on its soil.

Under international law, there exist many obstacles against the ethos of the Musharraf policy articulated above. Under several treaties comprising the International Bill of Rights there exists a number of direct provision that a foreigner within the territory of another state is legally due many safeguards including the right to be not deprived of his personal liberty, property or the right to movement.

As such is the case with the Treaty of Rome 1960 which although applicable in Europe, is nevertheless indicative of such a regime of law protecting citizens of other states who happen to be in a another country at any time. Recently when the US Administration began clamping down on illegal immigrants and hundred were deported, specific action was taken against all such deportees.

No omnibus order was effective against such deportees. In 2003 when six Pakistani nationals manifestly were sneaking through Greece and Macedonia to Europe and were killed in a police action, the Pakistan Government officially took up the plea that I have just outlined that no such actions possible with due process of law. No purpose is served by multiplying such illustrations as there is no question that under established international law, a state is under a legal duty to observe such formalities after it has admitted a foreigner on its soil.

Above all it is mandatory under the Vienna rules relating to diplomatic and consular protocols that every action against a foreigner must be preceded or accompanied by an intimation of the facts of each particular case to the concerned Embassy. I doubt if even single country was informed by the Pakistan Government of the action being taken against any student and for having committed what wrongdoing in Pakistan. Pakistan's Constitution is equally explicit. Under a conglomerate of provisions in Chapter 1 of Part 11 dealing with Fundamental Rights many articles prevents the government from doing that it has purportedly done. Since this matter hopefully may well be challenged one day in Court, I will not go over the specifics of such provisions. But this is clear that no government action is valid unless:

1. A specific notice is served upon the person outlining his delict or wrong doing.
2. He has given a hearing.
3. He has adequate time and opportunity to contest before a court the legality of the government's action.

This is deducible from an examination of Article 2, 4, 8, 9, 10, 14, 17, 20, 24 and 25.

In addition, the question that naturally arises is what had the Muslim students illegally done to invite such wrath of the authorities? Since when has it become crime to study Islam in the only country in the world solely created on the basis of Islam?

We must remember that under Pakistan's Constitution, Articles 31 and 40 say that:

1. The Pakistani Government is under a legal duty to enforce and observe Islamic way of Life in the Country;
2 That it is the constitutional duty of the Government to ensure the most cordial relations between Pakistan and Islamic states.

It is clear that such actions can hardly be germane to a betterment of such relations with other Islamic countries or for the implementation of an Islamic way of life in the country.

Before concluding let us also look at the broader scenario and questions raised by this patently unlawful decision of the Musharraf regime. If the theory is that by doing so, the Pakistani Government is endearing itself to Washington, then that may well so. But did the US itself expel a single Arab student after 9/11? After all 15 of the hijackers of the 9/11 were from Saudi Arabia and four presumably from Egypt. Conversely after 7/7/05 the men responsible for London bombing had overt Pakistani connects, did the UK expel all or any Pakistani students? Of course not.

Not only this logic is medieval in approach, the law of no county recognizes any concept of vicarious guilt by ethnic or nationality connections. As such, Musharraf regime's illogical and inhuman action in expelling foreign students and only from Muslim countries is legally perverse and indefensible. It appears that if a student came from the US or Australia or France to study here in a school he is acceptable but from Sudan or Egypt is not!

I hope therefore that one day this matter is challenged in court to test the validity of patently high-handed actions directed by our federal government against only Muslims students. In the end it is necessary to note that I regret the inaction of the religious political parties to contest such matters in the courts of the country. High sounding slogans by such parties of the county indulge freely in rhetoric and verbal protests against such decisions of the government; but none having the understanding or perhaps the moral courage and the needed logistical commitment to challenge these actions in a court where such tussle sure are rationally contested.

Dr. Farooq Hassan, D.Phil.;
BA (Juris),MA,M. LiTT (OXON);
DCL (Columbia),DIA(Harvard);
Sen.Adv.Sup.Ct. (Pakistan);
Barrister at Law (UK),Attorney at Law(US).

Posted by Jock Gill at February 27, 2006 10:52 AM | TrackBack