However, this provision of the constitution was controversially not applied in practice. The authorities demanded land ownership certificate as a pre-requisite to apply for citizenship certificate and vice-versa. Those who wanted to obtain citizenship certificate had to produce land ownership certificate and those who wanted to obtain land ownership certificate had to produce citizenship certificate. As a result, hundreds of thousands of people especially in the Tarai and remote areas lived and died without a citizenship certificate.
When the children and grandchildren of such persons approached the government authorities to obtain citizenship certificate by birth, they were asked to demonstrate the citizenship of their father who never obtained or was given one in his life. About 10 years ago, the parliament passed a bill on citizenship but the late king, Birendra, instead of putting royal seal on it, sent it back to the Supreme Court for its opinion and it was never returned to the parliament to become a law. Nepali Congress and CPN-UML worked on the issues of citizenship some 15 years ago by establishing a commission under leaders Mahanta Thakur and Dhanapati Upadhyay respectively. They identified the problems and recommended distributing citizenship certificate to those who were deprived of it.
This being the background, the government, three years ago, distributed citizenship to about 3 million people mainly from the Tarai area to end the problem of citizenship once and for all. However, this distribution was not free from controversy. It was alleged that many people obtained citizenship certificate on the basis of fraudulent documents.
A new controversy has now arisen over the right to citizenship as the Fundamental Rights and Directive Principles Committee of the Constituent Assembly (CA) committee decided to apply rigid policies on citizenship. But one must understand that the committee did not take a decision by mistake or without having extensive discussions on it. The committee duly discussed and decided that foreign husbands need to stay permanently in Nepal for 15 years before qualifying for Nepali citizenship.
On the contrary, a woman who marries a Nepali man will be eligible to get Nepali citizenship just after marriage and once she relinquishes the citizenship of the foreign country. Human rights activists are pointing out this discrimination between man and woman as an objectionable violation of Nepal´s commitment to international human rights instruments such as Article 1 of the International Covenant on Civil and Political Rights. This article calls for right of all people to ´freely determine their political status´.
One must understand that CA´s Fundamental Rights and Directive Principles Committee did not take a decision on citizenship without having extensive discussions on it.
They are also questioning the provision that requires both father and mother to be a Nepali citizen if their children are to get Nepali citizenship by birth. As the father of the children married to Nepali women would not have Nepali citizenship until he resides permanently for 15 years in Nepal and until he relinquishes his citizenship of the foreign country, the children of such couple cannot file for a citizenship certificate by birth until and unless his father obtains citizenship.
However, the CA committee seems adamant not to change their position even after hearing the hue and cry from civil society and human right activists. The committee has defended itself on two grounds. First, the carrying capacity of the state and second the interest of the state. The arguments of the CA committee seem logical though it is against Nepal´s commitment to human rights instruments. It may be argued that Nepal applies dualist legal system and, therefore, the international instruments cannot supersede domestic law and constitution. However, this argument is not free from controversies.
It can be argued that a state cannot undermine the principle of non-discrimination and no one should remain statelessness. At this point, it can be argued that a few thousand people who might come to Nepal after marriage with a Nepali women cannot put the destiny of 30 million people into limbo. Some legal and procedural grounds can be worked out for those who fall into the stateless category and who come to Nepal after marriage with Nepali women.
The controversy of citizenship and landownership certificates has almost ended.
But new dimensions of the citizenship issues are coming to the fore. It may not be so easy if Nepal ends up giving citizenship to anyone who wishes to have it. But, anyone who is born in Nepal and married to a Nepali citizen should not remain stateless. It should be noted that a Nepali national will remain a Nepali national even if he or she has not obtained citizenship certificate and a foreigner should not be treated as a Nepali national even if he or she has obtained citizenship certificate in a fraudulent manner.
Writer is an advocate
rudralawyer@gmail.com
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