of Afghan refugees in Pakistan.25 It is also essential to acknowledge
that the current provision does not recognize stateless individuals in
Pakistan, and requires every person to be attributed a nationality.
This raises concerns about the executive assigning nationality
arbitrarily, potentially based on physical appearance or speech
patterns, as has been reportedly done. Therefore, strict standards
and safeguards must be established and followed meticulously to
uphold every individual's right to nationality.
Furthermore, Section 8(2) denying an individual the right to appeal
against the determination of their nationality (or any order issued
against them) is a violation of due process guaranteed under Article
10A of the Constitution and the principles of natural justice. The right
to appeal is especially crucial for foreigners because they have a lot
more at stake, including their life and liberty. Due process requires
the authority to provide a fair and reasonable opportunity for a
hearing to the individual whose rights or interests may be affected.
The Supreme Court has also emphasized the importance of this
principle, stating that due process requires that a person have the
right to receive notice of any proceedings that may impact their
rights and must be given a reasonable opportunity to defend
themselves.26
Burden of proof
Section 9 of the Foreigners Act places the burden of proving
whether a person is or is not a foreigner on the individual whose
nationality is in question. This poses significant challenges for
individuals facing any allegations on account of being a foreigner,
especially refugees, stateless persons etc. in proving their nationality
or lack thereof. The lack of documentation available to these groups
is a key hurdle in this regard.
The lack of adequate documentary evidence is a particularly
prevalent problem in proving nationality (as well as claiming
25
P. W. Hogg and A. A. Bushell. (2007). Constitutional law of Canada. Carswell.
New Jubilee Insurance Company v. National Bank of Pakistan [2009] PLD 1126
(Supreme Court).
26
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