Challenges for implementation of citizenship provision in Nepal

Citizenship is a document which provides individuals with legal recognition of a particular state. This document which provides legal status to individual has huge importance in Nepalese context. The paper has made study in the area identifying the challenges in transferring citizenship from mother to child with reference to interim constitution.

Introduction

In general sense, person signifies three major components i.e. right to identity, right to contract and right to property. But when it is considered in terms of citizenship right, it also incorporates corresponding duty associated with above mentioned three major rights. In fact, the sense of one’s own independent personality is worthy to legitimate citizenship right.

In Nepal, citizenship is a pre requisite of a person to enter to the social and economic life as it is the single most important legal document a Nepali can possess. It not only establishes the holder’s official identity as a Nepali national; it also provides access to rights, opportunities, and state services not available otherwise. The certificate confirms the legal identity of Nepali nationals and proves access to rights, opportunities and services that would not normally be available to non-citizens including: formal sector employment; banking facilities; registration of businesses; civil registration of births, marriages and deaths; registration of property transactions; in achieving driving license; higher education; passports; and government benefits and allowances (for the aged, widowed, disabled, internally displaced and victims of the armed conflict).

History of citizenship in Nepal

From 1951, Nepal granted citizenship on the basis of a person’s birthplace and descent. Naturalization was possible for those who had been resident in the country for at least five years. A decade later, however, the provisions relating to naturalization became more restrictive, placing emphasis on ‘Nepalese origin’ and the ability to speak and write Nepali. A new constitution in 1990 brought in legislation which restricted the granting of citizenship by descent to Nepali men, repealed the granting of citizenship by birth and required foreigners to be resident in the country for 15 years before qualifying for naturalization.

Citizenship related provisions in Interim Constitution of Nepal, 2063

As stated in the government report and the Addendum, in line with the CEDAW Committee’s recommendations in 2004, the Interim Constitution of Nepal, 2063, for the first time recognized equal rights of Nepalese men and women to transfer their citizenship by descent to their children. However, in reality very few women were able to transfer citizenship to their children due to  lack of clarity in legal and administrative procedures. In the various public hearings conducted by the National Women Commission since 2009 in different regions of the country, the issue of

women facing problems to acquire and transfer nationality has been consistently put forward by women.

The Interim Constitution of Nepal, 2063 had corporated citizenship provisions under a separate chapter. It separately contained citizenship provision with separate act and regulation as per the constitution provision had also been enacted. Article 8 of constitution have provided different grounds for providing citizenship i.e. by descent, by birth,  by naturalization,  by integration of new territory and by recognition (honorary citizenship).

Those who are not recognized as citizens face significant problems in their lives as individuals  lack legal status which in turn also affects exercising other rights guaranteed by the constitution.

Challenges for the implementation of provision on Citizenship (with name of mother) in Interim Constitution

1. One legal provision states about equality in men and women to transfer citizenship by descent to their children and next one differentiate women on basis of marital status. Provisions of article 8(2) and 8(3) regard mother as the lineage by descent similar to father, whereas the provision of article 8(7) doesn’t regard her as the lineage to transfer citizenship to child.

However, article 8(7) recognizes women status to transfer citizenship to her children, but the condition is so rigid that it doesn’t allow to the children, who is born out of Nepal, and who do not have permanent resident in Nepal from the birth to the qualified date of acquiring citizenship. Confusing and contradictictory provisions have made complexities in procedure of attaining citizenship and transferring citizenship from mother to child. These distinctions reflect the dominance of patriarchy in the transmission of Nepalese nationality, in that a Nepali woman cannot pass her nationality to family members on the same footing as Nepali men.

As per the record at home ministry, 128 children have got citizenship through mothers' name till 2069 BS.  Similarly, in last fiscal year 069/70, only 13 people gained citizenship from name of mother. This data shows the condition of exercise of  the right in this regard when thousands of citizenship are issued in a year, where only limited number of individuals got citizenship in the name of mother (that too through writ procedure).

2. Even though the state does not directly deny women the right to get citizenship issued for their children through theirs', very few have come forward to claim their right. This is because of the description in the certificate of those individuals whose father are not identified reads as "father unidentified" which they feel to be humiliated. Normally, CDOs do not give citizenship to the children of single women and even if they do, they use ‘father unidentified’ tag and this  from the perspective of equality directly challenges dignity of women and their children.

3. Citizenship by descent is a matter of right whereas citizenship by naturalization is upon the discretion of state. Nepal had provision of issuing certificate on basis of birth, descent or naturalization. Citizenship act, 2063 requires both parents to be citizens of Nepal (and implicitly both to play a role in the application process), so the likelihood of more children being rendered stateless as a result was extremely high. Research conducted by FWLD reveals that in the first six years of the implementation of these provisions, not a single naturalization application was successful.

Failure to obtain a citizenship certificate often results in consequences that amount to de facto statelessness. About 4.4 million people (22.55%) people did not have citizenship in 2013 followed by 4.6 (22.82%) in the year 2014. The Election Commision hints that the number could be higher still.

4. Census 2011 has recorded 161,231 widowers, 498,606 widows (around 0.65 million single parents) and total 896,800 children below the age of 16 years are living with single mother. If the government fails to implement the provision, these children are likely to remain without citizenship certificate. Mostly women and children have been denied from access to full citizenship rights including widows, abandoned women and women married to non nationals. The general patriarchal and discriminatory attitudes towards women are likely to mean that single women and their children are particularly disadvantaged. A writ petition individually could be filed, if right of citizenship is violated, but it is always not possible all the time to all people.

A number of positive precedents have been laid down by the Supreme Court of Nepal in recognizing equal rights of women in acquiring and transferring citizenship to children in line with the provisions of the Interim Constitution. In landmark cases of Ranjit thapa and others vs. prime minister and office of the secretariat et.al, the court held that a child can acquire citizenship by his/her choice. Similarly, in the case of Sabina Damai V. district administration office et.al, the court entertained the citizenship from name of mother.

Similarly, In a case where the father of a child was unidentified, the SC quoting the Interim Constitution and the Citizenship Act issued an order of Mandamus to the District Administration Office requiring them to grant Nepali citizenship by descent to the plaintiff as her mother holds a Nepali citizenship.

Though supreme court shows positive attitude towards citizenship rights of women but still court is not able to fully convey citizenship right to women.

5. The government does not distribute citizenship without verification, as mentioned in the case of Adv. Balkrishna Neupane and other V HMG. If women are given right to pass citizenship to their children, then the threat of national security can be challenged, has been the argument defending non complaince of procedures mentioned. But lack of reliable instrument to keep the record of people entering the country through illegal means, questions the legitimacy of providing the certificate is not rational enough.

6. Nepalese society still alleged to be a patriarchal society on basis of Gender based discrimination, regarding the issuance of citizenship is further evidenced by ministry data that show only 74% of female in country have obtained it against 87% male. The steriotypical mindset of people hurdles acceptance to change.

7. Women's independent rights have not been respected, as mothers identity has not been recognized fully. Single woman including widows, divorcees or women whose husbands have left them ,face problems in acquiring citizenship for themselves as married women have to obtain the consent and assistance of their husband or husband’s family in order to apply for a citizenship certificate. In such cases due to lack of their own citizenship, women are unable to transfer citizenship to their children.

 Similarly, victims of trafficking and women migrant workers who have given birth to children outside of Nepal, also continue to face problems in transferring citizenship to their children. Even when rights and privileges on citizenship are made available to women, practical and conceptual obstacles make it difficult for common to avail themselves fully of these options. The practice is that every Nepali who wants to get the citizenship id has to show proof of his/ her father's citizenship.  But if father does not want to give citizenship to this child then this simple procedure turns out to be difficult.

8. Citizenship right in Nepal is a basis to enjoy other rights as well. Exclusion from this right surely restricts the exercise of other rights too. This issue is therefore, linked with the right to property and inheritance, the citizenship entitles these children within where they are deprived of basic facilities such as registering birth, attending college, applying for jobs, acquire or sell land or properties, acquire passport , open bank accounts, vote or as simple as get a mobile SIM card.

10. Although the government has initiated to keep data with gender disaggregation, but this has yet to be fully implemented. Those data which have been gender disaggregated, are only disaggregated by sex and not by marital status, age, and profession.

The constitution of Nepal has also incorporated similar provisions regarding citizenship in part 2 of the constitution. It also has provided different grounds for providing citizenship i.e. by descent, by birth, by naturalization, by integration of new territory, by recognition honorary citizenship.

Analysis

As citizenship serves as a legal bond between a person and a state, the state should be able to choose and identify its citizens and grant them citizenship cards on different basis.

Article 8(2) of the Interim Constitution and Section 3 of the Citizenship Act fails to take into account the increasing number of single parents who raise their children by themselves. Despite these provisions state that a person can acquire citizenship by descent, if their mother or father is a Nepali citizen, other discriminatory legal provisions and practices curtail the right of women to pass on their citizenship to their children.

 According to Article 8(7) of the Interim Constitution, the children of Nepali women and foreign men can only access citizenship through naturalization, and not by right, through descent. There is no similar restriction on men. One of the consequences of Article 8(7) , is that state authorities in practice refuse to accept citizenship applications submitted only by mothers, as they require proof of the father’s identity to establish that he is not a foreigner. Though the Supreme Court has set precedents recognizing equal rights of women, including through establishing the rights of married women and single women to transfer citizenship to children,  datas show that women continue to face discrimination.

The combined impact of Article 8(2) , 8(7) and similar provisions in the Citizenship Act is that while only the father or the father and mother together face no barriers securing citizenship for their children, it is extremely difficult for only the mother to do so. This has led to cases in which children of single mothers are left stateless.

Guarantee of equality in both the citizenship act and the interim constitution, but denial of authority to pass citizenship in name of mother visualizes negative stereotype on gender biasness. When the nationality of women is not recognized, their families have to suffer culturally, socially or even economically. Vulnerable children, orphans, street children, and children born from rape are at risk of lacking sufficient documentation of their births and families to apply for citizenship certificates later in  their life.

The Interim Constitution continues the provision to prevent Nepali women married to foreign nationals from transferring their citizenship to their husbands and children born to them. It allows Nepali men to convey citizenship to their wives of foreign origin following proceedings to renounce their previous citizenship, whereas in cases of Nepali women married to foreigners, husband can only apply for naturalized citizenship after 15 years of residence in Nepal. Furthermore, even after the completion of 15 years residence, the naturalization remains at the discretion of officials to grant naturalized citizenship.

 Similarly, The constitution of Nepal continues to have confusing and unclear provisions regarding citizenship.  There is lack of clarity in Article 11(2) which states that a person whose father or mother is a Nepali at the time of his or her birth can become Nepali by descent. However subsequent clauses 3 and 4 override the statements which say both the parents have to be Nepali for their children to acquire citizenship by descent.

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. It refers that children born and living in Nepal, and whose fathers are unknown, should be given citizenship by descent; that will be changed automatically to naturalized citizenship in cases where the father of such a child is identified as a foreigner. Both these provisions are regressive in comparison to the Interim Constitution which refers to “citizenship of children in cases where identity of parents is unknown” thus recognizing the individual identity of women. The proposal relating to transferring citizenship to spouses of foreign origin and children born to them continues to remain discriminatory as under the present Interim Constitution.

Similarly, the new citizenship provision still requires proving that his or her father is a Nepali national, obstructing women to pass on citizenship to their children without the need of verifying identity and nationality of father.

Article 11.7 further states that children of Nepali women married to non-Nepali men will not receive naturalised citizenship unless the husband becomes a Nepali citizen. No such provision exists for children of Nepali men married to non-Nepalis.

Citizenship act, 2063 has provisions of penalizing those who make fault citizenship but it lacks the provision of penalizing government official who denies to follow the procedure mentioned in the act and regulation.This has further nurtured non complaince of the procedure.

Conclusion

Going through laws regarding citizenship in interim constitution and constitution of Nepal, following ideas can be formed:

Though for the first time, Interim constitution of  Nepal included the provision of transfering citizenship through mother by descent, it had various shortcomings. Lack of clarity in the provisions itself, non compliance of judicial precedent in one way or other challenges the right of single women and children to acquire citizenship.

Repeatation of some provisions on transfering citizenship from name of mother in Constitution of Nepal, obstruct rights of individuals from various dimensions. If strict complaince of the provisions are not made then more number of them are likely to be stateless even in their own country.   

The government should adopt the legal measures and do away with all the existing

procedural and administrative barriers that hinder women to exercise and enjoy their rights independently of their husbands or male relatives.