KATHMANDU, Feb 15: A circular issued by Deputy Prime Minister and Home Minister Bijaya Kumar Gachchhadar to District Administration Offices (DAOs) across the country to provide citizenship certificates by descent to the children of those acquiring citizenship by birth has lately triggered a debate, and at times led to accusations among political parties.
The controversy surrounding the circular reached a high after the issue was taken to the Supreme Court and chief district officers (CDOs) in most districts refused to implement the circular, arguing that it was ´unconstitutional´ and also ran counter to existing laws related to citizenship.
But facts on the ground suggest that a genuine citizenship problem, which needs to addressed sooner rather than later, has been blown out of proportion.
The government formed after the success of the people´s movement in April 2006 had brought in an amendment to the Citizenship Act to address the problem relating to citizenship mostly in the Tarai districts. As per the amendment, any person born in Nepal before April 13, 1990 and residing within the territory of Nepal since then was made eligible to receive a citizenship certificate by birth.
But this was devised as a special, one-time provision since the Constitution of the Kingdom of Nepal, 1990 did not have any provision for issuing citizenship certificates on the basis of birth.
According to the Home Ministry, altogether 170,042 people had received citizenship by birth under this provision, which was also included in the Interim Constitution and was valid for two years starting November 26, 2006. But neither the Interim Constitution nor the citizenship act that provides citizenship by descent envisioned the problem that would be posed by the children of such parents who were born before the parents acquired their citizenship.
As per Article 3 (I) of the Citizenship Act, 2006, only a person whose father or mother was a citizen of Nepal at the time of his/her birth is eligible for citizenship by descent.
To resolve this problem, Home Minister Gachchhadar had taken a proposal to the cabinet to provide citizenship by descent to the children of those who received citizenship by birth under the 2006 special provision. Since his proposal was not endorsed by the cabinet, Minister Gachchhadar took a ministerial-level decision to send a circular to the district administration offices, bypassing the bureaucratic channels within the ministry.
The bureaucrats say their argument is not that such children should be denied Nepali citizenship. "Since the parents have already acquired citizenship certificates there is no question of denying citizenship to their bona-fide children. But existing legal provisions do not say anything about providing citizenship certificates to such children," said a senior bureaucrat at the Home Ministry.
And the problem, they argue, can be resolved through a simple amendment to the Citizenship Certificate Act, if not to the Interim Constitution itself.
The officials say the circular sent to the DAOs on January 10 contradicts the provision in the Interim Constitution and in Article 3 (i) of Nepal Citizenship Act, 2006. "A bureaucrat at the level of CDO cannot take a decision on the basis of a circular that goes against existing provisions in the Act. The best thing the government can do to resolve the matter is to bring an amendment to the Citizenship Act with a provision for issuing citizenship certificates to such children," the official said.
However, Jitendra Dev, who is spokesperson of the Madhesi People´s Rights Forum (Democratic), the home minister´s party, said the circular was issued after holding consultations with the Maoists and NC leader Krishna Prasad Sitaula, who served as home minister when the Citizenship Act was amended.
"The circular was issued as they [NC and Maoist leaders] suggested that there was no need to bring any amendment in the Interim Constitution or in the Act. I believe this is a problem created by the bureaucrats," he claimed.
Dev argued that once the problem concerning the children of those acquiring citizenship through birth is settled, the problem of citizenship certificates in Nepal will be resolved once and for all.
"I, as a Madhesi leader, propose that no citizenship should be issued on the basis of birth once the current problem is resolved," he said, adding, "It would be a great achievement for the country to resolve the problem of citizenship that has been persisting for so long."