Since the new constitution was unveiled last September, this has become a major highlight of ‘constitutional discrimination on citizenship’ narrative. And it continues to circulate in Nepali as well as foreign media. The issue, therefore, merits a comprehensive review.
Citizenship is emotional as much as a legal issue. Imagine the prospect of your wife or husband being barred from enjoying fundamental rights because s/he happens to come from other country. Or imagine your son or daughter not being eligible for public office, government jobs and top political posts of the country they call home. Imagine being stateless. The thought is revolting.
But rationality, not emotions, guides vital national issue like citizenship everywhere in the world, for citizenship is closely linked with sovereignty. This article will examine citizenship provisions in our constitution and examine if it has really disfranchised a significant section of population (especially Madheshis and women) as claimed.
What’s in it?
The oft-quoted refrain in media discourse is that the new constitution is much more regressive than even the Interim Constitution (2007) on citizenship. Is that the case?
Citizenship provision in Interim Constitution was derived from Nepal Citizenship Act 2063 (2006) which was the outcome of Madhesh Movement. In a way, it was an arrangement for resolving all citizenship disputes of the time. Therefore it had set a cut off date for any person “born and living permanently in Nepal before the end of Chaitra, 2046 (mid April, 1990)” to be eligible for Nepali citizenship.
According to Interim Constitution “any person whose father or mother was a citizen of Nepal at his or her birth” would be Nepali citizen by descent. “A woman of foreign nationality who is married to a Nepali citizen” would get a naturalized citizenship. A son/daughter born to “a woman citizen of Nepal married to a foreign citizen” would get naturalized citizenship if s/he had permanently resided in Nepal.
Interim Constitution was silent on rights and powers of naturalized citizens. Perhaps by virtue of being interim, it had left many things unsaid.
According to the new constitution a person whose “father or mother” was citizen of Nepal at the time of his/her birth and who has permanent domicile in Nepal gets citizenship by descent. Child of a citizen by birth before the commencement of this constitution will acquire citizenship by descent when he grows up if “both his father and mother are Nepali citizens” [Article 11 (3)]. This means either of the parents should start the process of acquiring citizenship as early as possible after they are married, if s/he is of foreign origin. A person eligible for citizenship by descent can obtain citizenship certificate in the name of “his/her mother or father” (Article 12).
Citizenship provision for a person born to Nepali woman married to foreigner is the same in new constitution as was in interim constitution: S/he gets a naturalized citizenship.
Activists argue that person born to Nepali father and foreign mother gets citizenship by descent but someone born to a foreign father and Nepali mother gets naturalized citizenship. In reality, if both of his/her parents have citizenships of Nepal at the time of acquiring citizenship, s/he gets citizenship by descent.
The new charter seems to dictate to a foreigner married to Nepali woman that if he wants to have his child acquire citizenship by descent, he should start the process and acquire the citizenship before the child is born. For somebody who wishes to live in Nepal and make it a permanent home, I wonder why this is a big issue.
According to activists, citizenship by naturalization is way inferior to citizenship by descent. I believe the fuss over the terms ‘naturalization’ and ‘descent’ is exaggerated. Every citizen (by descent, birth or naturalization) is entitled to all civil and political rights. S/he can vote, compete for government jobs, contest elections, become parliamentarian, conduct business and buy land and property. There is nothing derogatory about the word naturalization. It simply means that the person is a new entrant to Nepal.
The activists also argue that descendents of naturalized citizens will also be naturalized citizens. “That’s a stupid argument,” a Secretary at the Ministry of Law (who preferred not to be named) responded when I asked him if that was the case. “The condition applies for only one generation. The next generation gets the citizenship by descent.”
Some doubts about citizenship are being cleared, of late. According to the latest report, around 3,000 foreigner women married to Nepali men have already acquired naturalized citizenships since this constitution was promulgated. Unless the state proves through action that nobody will be rendered stateless, any story can be propagated. So sooner the government formulates new laws on citizenship, the better.
Why did the framers of the constitution impose “and” provision and make it mandatory for both father and mother to be Nepali citizens for the child to acquire citizenship by descent? Government officials defend this provision. “And’ does not deny anyone the right to citizenship provided that they agree to go through necessary procedures and fulfill certain criteria,” the Secretary argues.
Leaders associated with constitution making dismiss it as non-issue. “The issue is not that of ‘and’ or ‘or’,” Nepali Congress leader Ramesh Lekhak told me recently. “They want a provision for a naturalized citizen to become executive head.” Article 289 of the constitution bars a naturalized citizen to be “elected, nominated and appointed as the President, Vice-President, Prime Minister, Chief Justice, Speaker of the parliament, Chairperson of National Assembly, Head of the province, chief minister, speaker of Provincial Assembly and chief of security bodies.”
Framers of the constitution justify this provision by saying that it is so everywhere. Madheshi leaders and activists cry foul but do not substantially refute it.
There is one more restriction on naturalized citizens. For them to be eligible for constitutional positions they will have to “have permanent domicile for at least ten years in Nepal.” For those who have obtained citizenship by birth and citizens born to foreign women married to Nepalis (naturalized citizens), they shall have to have permanent domicile for at least five years in Nepal. Constitutional experts, however, take such restrictions as normal. “Such limitations are there because our constitution fundamentally rejects idea of dual citizenship,” argues Bipin Adhikari, constitutional lawyer and Dean of Kathmandu University School of Law.
A constitution is open to interpretations, sometimes even misinterpretations. If laws were as clear as operation manuals, why would we need lawyers? So long as promises enshrined therein are delivered, it remains incomplete for the people.
The US, EU nations and India have expressed concerns over Nepal’s citizenship issue. So what is the system in their country? In the US, a new entrant will have to acquire a green card before he gets the citizenship, which is not easy. One has to wait for as many as 12 years in some cases. Rights and powers conferred to green card holders also differ from one sate to other. Most states allow a green card holder to vote for local and state elections but not in federal election.
Generally one can apply for a citizenship after being a green card holder for five years. A foreigner married to American citizen can get citizenship after five years. By this calculation a new comer in the US will have to wait for around ten years to be eligible for the rights and powers that American citizens by descent or birth enjoy.
EU countries have much broader concept of citizenship. In fact, EU itself embodies the concept of borderless Europe. Nationality of an individual country is secondary to EU nationality. A citizen of EU state has the right to vote and stand in elections of European Parliament, in any EU member state and the right to vote and stand in local elections in an EU state other than their own, under the same conditions as the nationals of that state. Besides some of the EU nations also allow dual citizenship systems. Nepal’s case cannot be compared to them.
According to India’s Citizenship Act (1955), a foreigner married to Indian citizen gets Indian citizenship by registration after seven years of permanently residing in India. As for Nepalis in India, people-to-people relation is also guided by 1950 India-Nepal Treaty of Peace and Friendship which confers preferential treatment to citizens of one country living in another country. Article (7) of this treaty states :”The Governments of India and Nepal agree to grant, on a reciprocal basis, to the nationals of one country in the territories of the other the same privileges in the matter of residence, ownership of property, participation in trade and commerce, movement and other privileges of a similar nature.” So there are millions of Nepalis working, living and doing business in India just like millions of Indians are living, working and doing business in Nepal. But when it comes to citizenship, a Nepali is also considered a foreigner. A Nepali wishing to acquire Indian citizenship must renounce his/her Nepali citizenship first. Holding dual citizenship is illegal in India, as in Nepal.
The fault lines
If you give examples from elsewhere, Madheshi leaders warn not to compare Madhesh-India relations with other countries. We have a roti-beti relation with India, so what applies to others does not apply in case of Madheshis, goes the argument. They have a point.
Nepal’s Madhesh has open borders with India. There is hardly a family in Madhesh where they have not married their daughters off in India or where they have not brought brides from there. They depend on India for virtually everythingâ€”from brides to grooms to goods, jobs and education. This special relationship sometimes makes the distinction between two nationalities difficult.
Therefore, Madheshi leaders claim restrictions and limitations of Article 289 on our brides and children born of them should be immediately lifted. But they are in favor of this limitation to apply in case of non-Indian women/men (European and Tibetan) married to Nepali citizens. “We have never demanded citizenships for foreigner men who marry Nepali women. Only Pahadi women activists want this,” Laxman Lal Karna, one of the active leaders of Madhesh agitation had told me last July. He stands by it even today. But this is precisely what women activists want.
Why can’t we have equal provisions for both foreign women marrying Nepali men and Nepali men marrying foreigner women? I had asked this to Nepali Congress leader Shekhar Koirala in a recent interview. “The number of foreigners marrying Nepalis and settling in Nepal is increasing every year,” he said, “there are a number of American, British, Russian and Chinese nationals who have married Nepalis and settled down in Nepal. You cannot give them the right to be country’s prime minister or president.”
Nepal’s citizenship debate is stuck in whether it should be guided by an overarching global norm or whether the people of Indian origins or brides married to Nepali people should be treated with privilege.
When women activists say citizenship provision is discriminatory against women, their focus is on Nepali women married to foreigners, when Madheshi leaders say so their focus is Indian women married to Madheshis.
Government officials worry that the activists are belittling importance of citizenship document. “The trouble with the activists,” says the Law Secretary, “is that they treat citizenship like an identity card that you can distribute to just about anyone. This is ridiculous.”
Nepal’s citizenship debate is mired in multiple fault lines. Try to correct one, it will open another. Try to correct all, you risk becoming the nation that distributes citizenships to literally everyone that walks on the soil of Nepal.
The difficult choice
If citizenship dispute is to be resolved to the satisfaction of both activists and Madheshi leaders, you will have to allow new entrants (brides/grooms) unrestricted access to power from the day they enter the country. Apparently, Madheshi leaders won’t relent until this happens.
But this will be tantamount to considering Madhesh and India as the same country. This is where citizenship issue impinges on sovereignty.
Or you could give citizenship by descent to children born of Nepali women married to foreigner men (irrespective of whether they have acquired citizenships of father’s country, irrespective of whether foreigner men have lived in Nepal and become Nepali citizens) and allow them all rights and powers. What does it matter? We live in the age of migration and shifting population when we talk about global citizenship.
But it should matter to a country like Nepal which stands between two giants and which has become a platform for China, India and the West to establish their supremacy and checkmate each other.
Even while we have ‘rigid’ citizenship policy, we have a number of people at the border regions holding citizenships of both Nepal and India, even though both countries have outlawed it. Indian Home Minister Raj Nath Singh claimed in August 2015 that there are 10 million Indians residing in Nepal’s Madhesh, meaning 10 million Indians have Nepali citizenship. Singh could have been exaggerating but there is some truth behind the story.
The Times of India reported in 2012 that there are 80,000 people holding both Nepali and Indian citizenships along UP-Nepal border region. Navbharat Times reported in November last year that about 20,000 Indians of border towns in Bihar hold Nepali citizenships. There has been no government investigation on Nepalis holding Indian citizenships as well, but anecdotal evidence shows there are many such people.
Apart from being a license to vote, assume political power and work, a citizenship also means that its holder has been born in that country, or resided there for certain period, so that he starts developing loyalty to that country, have love and respect for it and agrees to live by its laws. If you agree to these conditions, you can be a citizen of that country. Other issues are secondary.