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Opinion: fake domiciles and the rights of local people


This piece by Naseer Memon was originally published May 29, 2020 on the Sindhi website ‘Pahen ji Akhbar’. It has been translated by Sameer Mandhro.

A campaign against fake domiciles has been started on social media in Sindh for the last couple of days. Issuing bogus domiciles (to outsiders) has been in practice for decades. It is because of this practice that indigenous people have been deprived of university admissions and jobs. People from other provinces have cleverly taken these opportunities from them. This lawlessness is like daylight robbery. Hence, it is important to understand the issue from a legal and constitutional perspective.

Historic background
Domiciles were introduced in Pakistan in 1950 with the Liaquat-Nehru agreement. This goes back to when the border was closed for the movement of people and the Citizenship Act was introduced in 1951. For the ease of people coming from India to Pakistan, its process was made easy.
In a newspaper interview, former chief secretary and minister Syed Sardar Ahmed of the MQM said that in order to get a domicile at that time one had to go to a nearby mukhtiarkar who would ask a few questions like where did you live and where are you coming from? And then you would get the domicile.
Later, it was decided that on the basis of living in a place for three years one would get a PRC or Permanent Resident Certificate. Then when One Unit was imposed, Sindh’s quota (except Karachi and Khairpur) of 17% was added to Balochistan and the North West Frontier Province’s. When One Unit ended, and the provinces were restored, new laws were made in Sindh.

In
1971, a PRC booklet was introduced in Sindh. It is worth looking at the
conditions of eligibility stated in these booklets. In Sindh no person could
get a government job or admission to an educational institute until she or he
did not have a PRC issued by a district magistrate. This condition was not
applicable to special seats reserved in educational institutions and for jobs
which the government may believe it should not limit to only people of Sindh.

This
is why a few conditions were set if you wanted to get a PRC for admission to educational
institutions. They were:

You should
have been born in Sindh.

At
the time of your birth, your father should have a Sindh domicile and if you
were born after the death of your father, the deceased would have had a Sindh domicile.

If your
father is unidentified [the word illegitimate is used in the document and that
is inappropriate] your mother should have a Sindh domicile.

If you
were not born in Sindh, your parents should have a Sindh domicile and have lived
in the province for at least three years.

If
your parents do not have a Sindh domicile but you possess it, then you should
have studied in Sindh for at least three years.

Your father
or mother has served the Sindh government at least for a year.

Similarly,
to get a job in Sindh, some conditions for the PRC were introduced:

You
should be a citizen of Pakistan.

You should
be born in Sindh and your father’s domicile at the time of your birth should be
from Sindh. If you were born after your father died, your father should have had
Sindh’s domicile before his death.

If you
were not born in Sindh, your parents should have a Sindh domicile and have lived
in the province for at least three years.

If your
parents don’t have a Sindh domicile and you possess it, you should have studied
in the province for at least three years.

Furthermore,
these booklets elaborated that:

If you have the domicile of another province, you should not be entitled to get a job unless the previous domicile is withdrawn and proof is provided to a district magistrate.

At
the start, it was mentioned in the booklets that the applicant had to submit an
affidavit. The district magistrate could verify the application according to it.
According to this law, the conditions to acquire a Permanent Residence Certificate
were clearly mentioned.

But throughout all this, the definition of permanent residence has not been clearly defined. The courts elaborated to say that an applicant would have to permanently withdraw previous residence. This would mean that if someone has permanent residence in Lahore they will not get a certificate if they own a flat in Karachi.

What does the Constitution of 1973 say?

According
to Article 15, every citizen has the right to live, enter, to move freely
anywhere and get a residence. But this right has been conditioned on public
interest.
According to Section 3 of Article 22, no one can be denied admission to an educational
institution on the basis of caste, creed or birthplace. Section 4 of the same
Article mentions that it is on this basis that the authorities are not
restricted to provide social and educational facilities to less privileged
citizens.

It is
mentioned in Section A of Article 37 that the State should take special
measures for the social and economic interests of less developed areas. In
Section C, it is mentioned that the State should provide technical and
professional education. And, on the basis of merit and equality, it must ensure
access to higher education.

After
reading these three Constitutional Articles, the following can be established:

Your
right to move and live to any part of the country is not unlimited but is
connected with public interest. Public interest is defined in Articles 22 and
37 which mentions that it is the State or government’s responsibility to
provide special opportunities to less privileged classes.

Merit
is mentioned in Article 37. Merit doesn’t mean marks. It is defined as the
responsibility of the authorities to ensure protection to the rights of less
developed areas.

In these Articles, the words merit, right and equality are not unconditional but have been linked with underprivileged areas and less privileged classes.

Court cases
The concept of a State is that it is defined as that which is opposite to the law of the jungle where might is right. The State must protect the weak and guarantee equal rights to citizens. We need to see domiciles and PRCs in this light.
These documents were introduced to ensure access to the rights of education and jobs as the responsibility of the State. The Supreme Court laid this out in the 1980 case of Deputy Commissioner Muhammad Yar Khan (SCMR 456 1980).

Defining
the difference between domicile and permanent residence, the court said that
the applicant by birth as a Pakistani citizen has a native home in Dera Ghazi
Khan. In this regard, he is entitled to apply for domicile to the District Magistrate of Loralai. But the matter of permanent residence is completely another
thing. The SC said that the applicant given the domicile by the Loralai magistrate
meant that the applicant has a Pakistani domicile, not of Balochistan or Loralai.
When the applicant wants to get admission in Balochistan’s institutions for higher
education on reserved seats, he has to prove his (permanent) residence before
the authorities. In other words, despite having the right to domicile, the
court made it compulsory to prove permanent residence to get admission to
university.

Similarly,
the Supreme Court’s divisional batch during the Zia-ul Haq era in the District
Magistrate Nawabshah’s case (200 CLC 406) said that the district magistrate
cannot deny a domicile to the children of the applicant because he (the
applicant) has residence in another district. Also, it was also cleared up that
the claim for permanent residence cannot be claimed on the basis of having
domicile.  The court said that for higher
educational institutions being run on taxes you will need a permanent residence
to get admission.
Similarly, there was the Atiya Bibi and Gul Rukh Sarfaraz case against the NWFP
(SCMR1161 2001) for admission to medical colleges. The court reserved right to a
quota for less developed areas. It said that only those candidates who live and
study in those areas should be given the benefit. Merely having a domicile of
the area is not enough.

These court decisions prove that admissions to higher educational institutions or jobs cannot be given merely on the basis of you having domicile for that area but you have to provide you have been a permanent resident with the PRC.

Indian examples
The law of permanent residence exists in India as well, where different states have different criteria. For example, in Assam, the condition for a permanent certificate is that the parents and applicant’s elders should have lived in the state for the last 50 years and the applicant for the last 20 years. In West Bengal, a person who is residing in the state for 15 years or has a permanent home there but is living somewhere to earn a living. In Andhra Pradesh, the applicant should have land in the state. Sometime ago, the Pakistan government protested over the leniency announced by the Indian government in Jammu and Kashmir to acquire its domicile, which it saw as a way to change the demographics of the valley. Even in this law, an applicant has residency if they’ve been there for the last 15 years or he or she has studied there for at least seven years. The children of the employees of the federal government working in the valley could only get the domicile if the employment had lasted up to 10 years.

Fakes
Getting a bogus domicile and Permanent Residence Certificate is easy. Look at the lists of documents you need:

1. Birth
certificate signed and issued by a Grade 17 officer, senator, MNA or MPA or the
Municipal Committee and District Council.

2. A
document of immovable property in the district.

3. A document
of a job or business

4. An
attested photocopy of the national identity card and B-Form if the applicant is
under 18 years.

5. Attested
photocopies of the last educational documents.

6. A
domicile copy and national identity cards of the parents if the candidate is under
21 years.

7. Attested
copies of employment documents if a government employee.

8. Documents
such as utility bills and a copy of a rent agreement.

9. Attested
copies of the identity card, domicile for a married man/woman and B-Form of the
children.

10 Attested
photocopies of identity cards of two neighours.

11. All
documents, including residence certificates, B-form and identity cards must be
attested by a Nazim, Naib Nazim or first class officer.

12. The
application of the domicile attested by the Oath Commissioner.

13. Attested
copies should be provided with original documents.

In all 13 conditions, the headmaster, elected representatives and neighbours all are part of the process. If you want a bogus domicile you have to get all these fake documents and have to involve all these people. But the more important thing is that the office and the staff of the deputy commissioner and agents outside this office are involved in making fake domiciles.
Also, the law and its conditions for a domicile or PRC are not that stringent that an outsider (from another province) cannot easily acquire them. Not just the office of the deputy commissioner but other institutions (educational boards/universities, attesting officers and public representatives) are involved in the bogus domiciles and PRCs. It is responsibility of the deputy commissioner’s office which verifies all documents.

The solution
The Sindh government needs to set up an office where all documents for the PRC and domiciles should be submitted and the public must be given access to that database.

A forensic
audit of all admissions and jobs given on the basis of these documents in the last
three to five decades should be initiated. Because of the significance of this document,
the bar for a PRC should be raised to 10 years.

If a
child of a person hailing from a less privileged area lives in a city to study
they should be given documents of the city and not of their father’s area.

A fake
domicile should be declared a punishable crime.

The
standard definition of permanent residence in the law should be amended. The
condition and proof to withdraw previous residence should be made stricter.

According
to Sindh’s law of PRC, to get admission in educational institutions and to get
a job, the applicant needs to have their father’s domicile and job in the
province. This facility was given during the One Unit time because at that time
Sindh’s quota was linked with Balochistan and NWFP’s. This section is needed no
more and should be abolished.

Source Link: Opinion: fake domiciles and the rights of local people

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