With Nepal’s adoption of a new constitution, news has surfaced that in conferring citizenship by descent the requirement of both “father and mother to be Nepali” has been substituted by “father or mother”, meaning essentially that “and“ has been substituted by “or” by the drafters, perhaps in response to massive public pressure in the past few weeks. Now the question is whether “or” really applies equally to both Nepali men and Nepali women.
Identity and citizenship are key in designing any constitution, as they provide the means to claim individual rights. Citizenship is associated with full membership within the state. Citizenship creates a legal covenant between state and citizen; therefore, the burden is to make sure that statelessness is avoided and non-discrimination on the basis of sex is guaranteed. But let us examine what has been achieved though all the pressure, advocacy and negotiation of the past few weeks in terms of the constitutional language on citizenship.
What has been achieved after the struggle to replace “and”?
With listing of citizenship as a contentious constitutional issue and with considerable struggle “and” has indeed been substituted with “or” in Nepal’s new constitution. Article 11.2.b provides citizenship by descent to all children born to parents one of who is a Nepali citizen. Now with the removal of “and” at least citizenship can be acquired through the father. At least the rights that was exercised by Nepali men and foreign women married to Nepali men has not been curtailed. At least with this provision, where fathers do exist and they acknowledge a relationship with mother and child, the child can get citizenship and statelessness can be prevented.
Is there any improvement compared to the Interim Constitution of 2007?
The requirement to be born in Nepal to gain naturalised citizenship has been removed for children of Nepali women married to foreigners. Article 12 of the new constitution allows for the citizenship certificate in either of the parents’ name and also carries their gender identity.
The child of a single woman must be born in Nepal to obtain citizenship by descent Generally two principles apply in conferring citizenship: jus sanguinis (by blood) and jus soli (by birth). Nepal has applied only one principle: that is jus sanguinis. Further, to make it restrictive only for women, the constitution also requires that for women their children need to be born in Nepal to obtain citizenship by descent. With this requirement, a different standard is clearly and egregiously applied to the children of Nepali women, whereas this is not applied to the children of Nepali men. What then will happen to the children of trafficked women, migrant women workers and other transient women whose offspring are born outside Nepal? Since mother is identified, Article 11.4 will not be applicable. And since the child is not born in Nepal, citizenship cannot be obtained under Article 11.5.
The child of a Nepali woman can only obtain naturalised citizenship if married to foreigner. On the one hand Nepali women have the right to marriage, which includes the right to marry of one’s own choice, whether the spouse is Nepali or foreigner. But if the spouse is a foreigner, the children of Nepali women are only entitled to naturalised citizenship under Article 11.7, whereas the children of Nepali men married to a foreigner spouse are entitled to citizenship by descent. Thus, for the children of Nepali citizens, there is a bias in their treatment based on their birth to a Nepali chhori or bideshi buhari.
Constitutional rigidity and discrimination applies only to Nepali daughters. Although the concept paper for the drafting of the citizenship provisions clearly calls for applying the principle of non discrimination and rigidity equally, rigidity is only applied to Nepali daughters and explicit discrimination is made only to the children and spouses of Nepali women. In the case of family of mixed nationality, the right of non national family is to be enjoyed on equal basis; however, under the new constitution such provisions have not been made. Also naturalization is not a matter of right in Nepal, it is at the discretion of the state. Inequality is also perpetuated on citizenship by naturalization in other entitlements under the constitution.
The Nepali woman has to establish that her father is Nepali Ultimately it is the mother who has to prove the father of the child. Therefore in claiming citizenship through the mother, female has to prove first that her husband is not foreigner and then her husband is Nepali due to other subsequent articles and provisions in the constitution. And if she cannot prove this, or if her husband denies their relationship, or in case of violence, her child may not be able to obtain Nepali citizenship.
Therefore the concession by constitutional drafters on “or” is not for Nepali women; it is “or” only for Nepali men! The intention of the constitutional provision cannot be interpreted by reading the first clause, subsequent sentences and provisions must be carefully scrutinised. Although Article 11.7 does say that while acquiring citizenship if both parents are Nepali, children can get citizenship by descent. However, if foreigner husbands are excluded from Article 11.6 in getting citizenship based on marital naturalisation, how can any child born to a Nepali mother married to a foreigner obtain citizenship by descent?
Therefore, the citizenship provisions in the Constitution of Nepal 2015 explicitly discriminate against Nepali women and consider them to be second-class citizens, continuing to treat women based on the dependent notion of nationality. This is not only against Article 9 of the Convention on Elimination of Discrimination Against Women but also against the Convention on the Nationality of Married Women-1957 and the Convention on Child Rights-1989.
Misogyny is clearly evident as driving the citizenship chapter in the new constitution: the right to family and the right to non-discrimination based on marital status, as well as patriarchy as a reason for discrimination and injustice have all been removed. Further and more worrying, if discrimination in citizenship is thus explicit in the constitution, its unconstitutionality cannot be tested by the Supreme Court, as it is subject to constitutional amendment!
The only way forward
The fundamental question is whether or not the Nepali state still views nationality as a privilege that is rigid and mystical or regards it as an instrument to secure the rights of individuals, nationally and internationally, and is therefore a right of individuals to nationality. Note too that this is at a time when the subject of international law is no longer limited to the state but extends also to individuals. There needs to be clarity on which principles citizenship is to be granted: jus soli or jus sanguinis. How can we have different standards for our sons and daughters when the new constitution has guaranteed the right of equal lineal descent without discriminating on the basis of sex?
The state also has the duty to make sure discrimination is prohibited on citizenship, statelessness is avoided, and that there is no arbitrariness in conferring citizenship. Therefore, constitutional amendment in this regard is critical, and Nepali political leaders need to internalise the subject matter and understand the implications of treating women as second-class citizens. Is it because women are not politically powerful in Nepal, or because the leaders think that women’s agenda are not political agenda?
Yes, there is a potentially huge alternate market for citizenship, and that needs to be managed through policy instruments that are lawful, just and good governance. Geopolitics, national security and the open border with India can no longer be used as justification for the continuation of systematic state discrimination against Nepali women. In this day and age, no one can become eligible for citizenship by crossing a national border. This is a bogey raised by those who wish to perpetuate patriarchy in Nepal!
Non-action by the state can create further tensions and statelessness. Therefore, until amendments can be made to the new constitution, clear laws, rules, regulations and procedures should be enacted to ensure documentation of birth, marriage and migration and to facilitate the implementation of present provisions.
The government also needs to enact the decision to confer citizenship through naturalisation as per the new constitution. Officials of local government and the chief district offices have to be educated, empowered and sensitized in making sure births are registered and relationship papers, as well as travel documents, are provided.
Throughout all of this, it is most important to respect motherhood, and to treat women with dignity. Special instructions must be issued to these officials to proceed with naturalised citizenship as a matter of priority, as even today the Supreme Court’s direction to confer naturalised citizenship has not been followed by the government in the matter of the children of Nepali women married to foreigners. In such cases, the foreign spouses of Nepali women should be given permanent residence with socio-economic rights.
Although constitution has also brought many progressive provisions for women’s rights, only if discrimination in citizenship provision is addressed can we proudly claim that the constitution is progressive and celebrate the equal treatment of all Nepalis.
Citizenship by descent
• Article 11.2b: Any person whose father or mother was citizen of Nepal at the birth of such person.
• Article 11.4. Every child found in Nepal whereabouts of whose paternity and maternity is not known shall, until the mother or father is traced, be deemed a citizen of Nepal by descent.
• Article 11.5. A person born to a Nepali citizen mother and having his/her domicile in Nepal but whose father is not traced, shall be conferred the Nepali citizenship by descent, provided that in case his/her father is found to be a foreigner, the citizenship of such a person shall be converted to naturalised.
• Article 11.6: If a foreign woman married to a Nepali citizen so wishes, she may acquire naturalised citizenship.
• Article 11.7: In case of a person born to Nepali woman citizen married to a foreign citizen, s/he may acquire naturalised citizenship of Nepal as provided for by a federal law if s/he is having the permanent domicile in Nepal and s/he has not acquired citizenship of a foreign country.