Two steps back

Adv. Dipendra Jha
JUN 17 -

French philosopher Michel Foucault often argued that the dominant group used identity as a form of subjugation and a way to exercise power over marginalised communities, preventing them from moving outside fixed boundaries. This is what happens with citizenship.

During the reign of king Mahendra, the citizenship provisions were incorporated in the constitution for the first time. There were several reasons for Mahendra to adopt narrow provisions vis-à-vis citizenship. A movement for democracy was flourishing in the southern plains and places such as Bairganiya, Janakpur, Rajbiraj and Jhapa had become hotspots for democratic activity. As far as citizenship was concerned, Mahendra wanted to suppress any possible democratic uprising by creating constitutional and legal barriers for the people of the southern belt.

Carrying on the legacy

Now, it is interesting to see how ultra leftists want to carry on Mahendra’s legacy on citizenship issues. Like Mahendra, those from the far left and even some in the moderate left seem to see people with a different complexion as ‘foreign’. They have very narrow definitions of nationality and thus, raise questions about the nationality of people belonging to regions other than the hills. In fact, ultra leftists and far rightists have always raised suspicions about the nationality of Madhesis. Around 20 percent of ‘real’ Nepali citizens, who have been living in Nepal for centuries and have been deprived of Nepali citizenship, are stuck between these two extremes. When it comes to gender parity, both ultra leftists and rightist say that women can have equal rights on all matters, but not on the question of citizenship. As these two forces have a larger presence in the second Constituent Assembl (CA), one can surmise the constitutional language on citizenship.

Matters included in the fundamental rights chapter of the proposed new constitution, as per an agreement, are contrary to equality and democracy and are more regressive than the provisions in the Interim Constitution. According to this agreement, a citizen shall be entitled to obtain citizenship by descent only if both parents are Nepali citizens by descent. If this matter in which consensus has been reached becomes part of the new constitution, it will be inconsistent with provisions in numerous international treaties that Nepal is party to, including the International Covenant on Civil and Political Rights. Citizens deprived of citizenship can lead to frustration and an unhelpful approach can pose security challenges. If adequate reforms are not made to citizenship laws then the people of marginalised communities—Madhesis, Dalits and people of ethnic communities—will only suffer more.

Gender disparity

Furthermore, the agreed-upon provisions under the fundamental rights chapter do not solve the citizenship problems of the children of single women. In particular, the offspring of single fathers or mothers whose parents refuse to cooperate or are unable to cooperate in helping their children obtain citizenship.

As per the agreed upon issues, a foreigner who marries a Nepali woman shall have to stay in Nepal for 15 years to obtain a naturalised citizenship whereas a foreign woman who marries a Nepali man shall be eligible for Nepali citizenship immediately upon marriage. When a man marries a woman of whatever nationality, his offspring get Nepali citizenship whereas when a Nepali woman marries a foreign man, her children cannot obtain Nepali citizenship. Is this the type of equality we are talking about? Though the proposed constitutional provision ensures that a woman married to a Nepali man can obtain Nepali citizenship immediately, this provision has only secured the right of daughters-in-law. The proposed provisions say a Nepali daughter’s foreign husband or son-in-law has to wait 15 years before obtaining Nepali citizenship. This too does not align with international provisions.

Additionally, the Interim Constitution has a provision to allow the filing of an application to acquire naturalised citizenship for offspring born from mixed marriages. However, the Ministry of Home Affairs has not distributed a single naturalised citizenship for the past ten years.

The proposed constitutional provision resembles the provision of citizenship in Bhutan, introduced with the intention to limit the number of people of Nepali origin in the country. Bhutan, like Nepal, follows democratic norms. So it too should not uphold a basis of citizenship adopted by dictatorial countries with an intention to make some of their citizens stateless non-citizens. Looking at the economic progress of China and India, we have to free ourselves from the fear that their citizens shall flock into our country and seize our opportunities.

The wrong approach

True, Nepal has legitimate concerns about citizenship fraud. However, it would not be in the national interest to punish Nepali children and place them at a high risk of statelessness in the name of addressing these concerns. Like all other countries, Nepal

has expressed concern in safeguarding its citizenship system from forgery and abuse and the matter has been well addressed through clear legal provisions. But it can be further dealt with by maintaining strict provisions of jailtime for anyone found to have acquired Nepali citizenship through fraud.

Problems of citizenship fraud hardly justify the CA’s steps to make citizenship provisions similar to that of Bhutan or Vietnam. There are other ways to control fraud. The process of citizenship distribution could be taken away from security agencies and given to local bodies such as municipalities or VDCs. Moreover, in order to monitor, improve and control the citizenship functions of local agencies, a permanent Citizenship Commission can be established at the central level.

Rather than using this issue as a political bargaining chip, this is the time for change-seeking forces to reclaim their strength in the CA, overturning these proposed provisions, which are under rubric of ‘agreed-upon issues’. Fifty CA members from Madhesi parties have already shown their united strength in asking for

a separate commission to investigate the violence that took place in the post peace agreement period in the Madhes. Citizenship could be another issue for the Madhesi CA club to rebuild a broad alliance to resist constitutional provisions on citizenship that seek to maintain the status quo.

- Jha is a lawyer practicing at the Supreme Court

Extracted from The Kathmandu Post : Two steps back