Citizenship is an entitlement that ensures the citizen’s full participation in social life and creates individual’s political membership with the state. After the individual became
a subject of international law, it has been regarded as a right of people for securing the rights of individual in national and international spheres. These days, citizenship has emerged as the basis to ascertain identity and inclusion. The proposed provision by fundamental rights committee on citizenship has committed to prohibit sex-based discrimination.
However, it has stated that it will take strict measures in granting citizenship in the pretense of geopolitics, population policy, open border and national security. This policy can result in complex consequences of possible statelessness. Statelessness is a state of having no citizenship and no legal bond between a state and an individual. Stateless people face numerous difficulties in their daily lives: They have no access to health care, education, property rights and the freedom to movement. They are also vulnerable to arbitrary treatment, exploitation and crimes. Their marginalization can create problems in the society and result in instability at an international level, including conflict and displacement in extreme cases.
The legislative-parliament and all the major political parties, during the Constituent Assembly elections committed to grant citizenship through mother. As per the international human rights standards, it is the duty of the state to safeguard against statelessness, and ensure non-discrimination, protect right to family, right to movement and no denial of citizenship right arbitrarily. In Nepal, although the court has also accepted existence of discrimination in citizenship law, nothing has done to rectify problem as it is a political issue and subject to constitutional amendment.
In several countries, citizenship is granted through descent, birth, and naturalization. However, citizenship law in Nepal is based on the premise of descent and naturalization and that too, in limited instances. Nepal’s citizenship law viewed women as a dependent on their relationships with men, either father or husband. Even though the Interim Constitution of 2007 has allowed citizenship from the maternal side, working complexities and prejudices continue to exist. The Interim Constitution in itself, in the case of a woman married to a foreigner, comes forth to only grant naturalized citizenship to her children, that too, on the grounds that the children are born and residing permanently in Nepal. What has not been understood or rather not been put across is that the rights to whether or not grant naturalized citizenship is vested on the state, but citizenship by descent is a matter of right. As a result, in many situations children from Nepali mothers are devoid of their identity and remain stateless.
Now the proposed provision requiring both the father and mother to be Nepali citizens in acquiring citizenship is against the constitutional norms accepted in many countries, notwithstanding the norms of international law that stipulates that any between the father or the mother will suffice, and this is what was recognized by the 1962 Constitution of Nepal. The provision has undermined the very essence of biological and natural role of the mother. In cases where either father or mother is non-Nepali, the child has to wait until he or she turns 16. The Nepal government holds the right not to grant citizenship, and this has paved the way for complexities in safeguarding identity and against statelessness. Due to the tradition of cross border marriage between Nepalis and Indians, the language provision may result in an awkward situation where all the children born from madhesi community would be stateless.
The proposed provision requiring a foreigner married to a Nepali citizen to live up to 15 years, and relinquish citizenship of the country of origin, before applying for Nepali citizenship has further compounded the problem. Though it does not prohibit the right to marriage but it does deny the right to family and the right to the choice of residence. Moreover, as the spouse acquires citizenship after 15 years, irrespective of the birth of children, the children will also have to wait for naturalized citizenship instead of obtaining one based on descent.
There is no provision of issuing residence permit to the spouse who wishes to remain in Nepal after marriage. Moreover, even though the proposed provision provides that naturalized citizenship can be granted to foreign women married to Nepali citizens before this constitution comes into effect, if she wishes to acquire Nepali citizenship certificate by relinquishing citizenship of foreign country, the proposed constitutional provision is, however, silent in the context of foreigners married to Nepali women or children born prior to the promulgation of the new constitution. As evident, the complexities comprising perpetual historical discrimination have not been addressed.
The Constitution of 1990 allowed acquisition of naturalized citizenship to son, daughter of Nepali citizen or those who resided up to two years in the case of descent. However, the currently proposed provision only allows acquisition of naturalized citizenship to those residing permanently upon being born in Nepal — whereby even if one parent is a Nepali in case of marriage to a foreigner — has in effect also obliterated the earlier provision of easy acquisition after two years of permanent residence. Henceforth, instead of ensuring easy and simple access, the proposition has made the access to legal identity all the more difficult and rigid.
Though there is a provision to acquire citizenship from the maternal descent in cases where the father is not identified, which can also include the cases of rape or trafficking, the fact that baby has to be born in Nepal even when trafficked remains problematic. Despite the knowledge of father, if his identity is not disclosed, children can get the citizenship but disassociation with the father may as well lead to obstruction of the children’s right to property and his right to family. Likewise, there is no clear-cut provision regarding pregnancy by means of surrogate mother or sperm donor or for adopted children. Moreover, the proposed draft of the constitution has prohibited the exercise of political public positioning within the naturalized and descent.
It is high time to analyze whether it is fair to formulate rigid citizenship laws today that do not respect the rights of children and recognize individual identity of man and woman. If open border is a problem, shouldn’t it be regulated? There is no point in making people suffer because of a weak administrative mechanism or corrupt system of the government. Can population be controlled only by restricting the right to citizenship? Besides, one should seriously consider whether the number of foreigners living in Nepal is higher or Nepali living abroad! What is our migration trend? What if the migrant population gives birth outside the country?
According to the Home Ministry records, as of mid-June 2009, the total number of people who acquired citizenship by the name of the mother, with the father being either Nepali or unidentified, stands at 128.
Application citing foreigner father and Nepali mother stands at 67 but none among them have been granted citizenship. As for marital naturalized, the number of foreign women married to Nepali men is 289,600. However, as for Nepali women married to foreign men, citizenship for spouse is prohibited and the number is also not that high, as only 67 mothers have applied for the citizenship for their children. And the ground reality is that even today, many children from Nepali women are living in Nepal without any legal identity. Even in the case of women married to Nepali men, whereby the relationship is not accepted or father does not come forth not to share the property, women have to persistently endure the prejudiced self-esteem-inflicting comments from the home administration such as: Send them to their father’s house.
Women continue to be discriminated even in New Nepal. Shouldn’t patriarchal mindset and values change alongside the restructuring of the state? For how long should ethnicity, color, language, gender, region-based discriminations persist regarding citizenship? Time has come when we need to become more liberal in our thinking and respect the rule of law, not the rule of men.