Is it wrong for a sovereign state to bar the foreign woman from holding vital government offices? Pakistan and Afghanistan bars a non-Muslim from holding the Office of President

I often hear women activists and Madheshi leaders complaining against the citizenship clauses enshrined under the Constitution of Nepal. They claim that Nepali laws deny equal citizenship rights to women. But this is not true for obvious reason. Every sovereign country can tailor just laws suiting its normative structure.     

Recently, India amended its Citizenship Act that aims to provide citizenship to ‘Hindus’ and Christians who have illegally migrated to India from Afghanistan, Bangladesh and Pakistan. This is against the basic notion of secularism and right to equality clauses enshrined in the Indian constitution itself. Importantly, the Hindu Marriage Act (1955) defines Hindu as a person professing and practicing Hinduism, Jainism, Buddhism or Sikh or a convert or re-covert thereof. The Citizenship Amendment Act (2019) too stands on the same page while defining Hindus. This way, India, the world’s largest democracy, discriminates persons against religion even as Article 15 of the Indian constitution aims to eradicate discrimination on the ground of religion, race, caste, gender or place of birth.  

This author has intentionally cited the India’s example to give a reply to some Madheshi activists who time and again suggest that Nepal ought to take a leaf from the book of citizenship laws of India. But, if that happens, it would be a big disaster. We should be thankful to the makers of constitution, for Nepal’s constitution does not deny citizenship or other rights to any particular ethnic or religious groups.

Constitutional provisions
The 2015 constitution provides that there would be two modes of obtaining citizenship, namely, citizenship by descent and citizenship by naturalization. In this context, Article 11(3) stipulates that a person is eligible to acquire citizenship by descent if ‘his/her father and mother both are citizens of Nepal.’ 

However, if a person is born to a Nepali mother citizen who is married with a foreigner and has not acquired citizenship from his/her father’s country, when proved, s/he will be conferred with naturalized citizenship. A person born to a Nepali citizen mother but whose father is not traced shall be given citizenship by descent. Similarly, a foreign woman married to a Nepali citizen is entitled to obtain naturalized citizenship of Nepal. 

Moreover, there is a well-settled practice of awarding citizenship by descent to a person whose father is a citizen by descent and mother is otherwise.  This way, the constitution does not leave anyone stateless. 

Article 12 of the constitution is a welcome provision which allows an individual to seek citizenship certificate along with gender identity. Now, it’s a well-settled law that an individual can choose his gender identity by his own declaration, without any third party intervention. This intervention could have been insistence on surgery, a medical diagnosis or any other such practice. In this vein, the judiciary had also stood by the cause of trans-gender people. The Supreme Court of Nepal in 2007 in the case of Sunil Babu Pant v. Government of Nepal held that the persons were entitled to select their gender identity based on their “self-feeling.” 

Where is the problem?
To be very frank, constitutionally, there is no any problem. But, there is a problem created by some Madheshi activists who instigate the people during the public protests and later bag vital government offices in return. 

Dipendra Jha, for example, a celebrated advocate and the Chief Attorney of Province-2, in his book Federal Nepal: Trials and Tribulations, writes that if a Nepali woman whose husband is a foreign national goes to border towns of India such as Barginiya, Bhithamod, Raxaul and Sunauli to deliver her baby, then her child will be given naturalized citizenship. For this child to get citizenship by descent, it must be born in Nepal, he writes. However, this is completely exaggerated information. The citizenship law of Nepal is based on jus sanguinis or bloodline not jus soli. So, the place of birth of a child is immaterial.    

Assume that a Nepali woman who is on a trip to Pakistan or any other country delivers her baby on a foreign soil during her visit. Her child will not be prevented from obtaining Nepali citizenship—by descent or naturalization—whichever s/he is entitled to.   

After all, there is no any certainty that a woman would give birth to her child on a particular date and time. A woman, who is on a foreign trip, could suffer labor pain during her seventh or eighth month of pregnancy and she could bear a child there. But to believe in Dipendra Jha, Nepal is such an inhuman state which does not consider natural or unnatural urgencies. This is simply not true.

Jha further writes: “Bureaucrats, lawyers, civil society and media, as the protectors of hill nationalism, do not allow Madhes-based parties to work on the issue of citizenship independently.” 
Then, should we say a goodbye to parliament and entire law-making mechanism and allow different political parties to work independently on different subject matters?

Jha believes CDOs in Nepal are reluctant to provide citizenship to Madheshis. They distort the laws and don’t grant nationality when it comes to awarding citizenship to Madheshis, he argues. “The incident of disobedience by the CDO is evidence that it does not matter what position you hold, even after getting elected the hill elites do not allow you to extend assistance to marginalized communities such as the Madheshi and the Tharu. To maintain a position of power, you have to follow the orders of hill elites or be ready to be thrown out of power. Because the hill elites have only one implied policy which is being implemented strictly, ki ta hamra ki na ramra, (if not mine it is bad). In Nepal, you cannot be good by keeping views other than those of the hill elites.” 

This is how Madheshi people are misled against the hill people and the whole social fabric or harmony gets disturbed. Such views are not rational. Here lies the problem. 
Naturalized vs Descent 

Madheshi leaders criticize a constitutional provision which bars naturalized citizens to hold vital government offices. Yes, Article 289 (1) bars the naturalized citizens from holding the office of President, Vice-president, Prime Minister, Chief Justice, Speaker of Parliament, Chairperson of National Assembly, Governor of the Province, Chief Minister, Speaker of Provincial Assembly and chief of security bodies. 

But in case of other positions, a non-descent citizen has to fulfill the requirement of clause 2 of Article 289. It says that for the appointment to the positions other than referred in clause (1) a person must have resided in Nepal for at least 10 years in the case of a person who has obtained the naturalized citizenship of Nepal and for at least five years in the case of a person who has obtained the citizenship of Nepal by birth or who has obtained the naturalized citizenship of Nepal in accordance with clause 6 of Article 11. Article 11 (6) grants naturalized citizenship to foreign woman married to a Nepali citizen. 

Referring to this clause Jha writes that naturalized citizens have been treated as second-class citizens and this will have a direct impact on matrimonial bonds and family ties of the Madhesi community across the Nepal-India border. He further argues that these citizenship provisions are discriminatory from the perspective of gender, ethnicity and national origin. Again, it’s an exaggeration. If a person marries a foreigner woman with an intention to get his wife appointed in any of the posts secured for citizens by descent, then our constitution says no. But for positions other than mentioned above, there is no any legal restriction. 

Is it wrong for a sovereign state to bar the foreign woman to hold vital government offices? Pakistan and Afghanistan bars a non-Muslim from holding the Office of President.     

If we revisit Indian position, then we can draw a conclusion that Nepali law is comparatively flexible. As per the mandate of the Citizenship Act (1955), an overseas citizen is not eligible for election as President and Vice President and for appointment as judge of High Court and Supreme Court or contest election for parliament or provincial assemblies.

The admired commentator of Constitutional Law in India VN Shukla in his book Constitution of India writes: “Citizens alone have the right to hold certain high offices such as those of President, Vice President, Governor of State, Judge of the Supreme Court or High Court or of the Attorney General and the Advocate General.” But, overseas citizens are not entitled to hold such offices. In India, there has been a trend of glorifying the constitution and constitutionalism but in Nepal, there is a fashion to criticize constitution.  

Over and above all this, there is considerable number of cases where the Supreme Court has asked the authority concerned to issue citizenship certificate to the person who is born and brought up in Nepal and his father and/or mother is Nepali citizen.   

Moving forward 
There is a well settled jurisprudence on citizenship with regard to right and duty. Right refers to what we own and duty to what we owe. Only right leads to anarchy, only duty leads to dictatorship but right with correlative duty leads to democracy.

This author humbly submits that the disputes and heated debates over the citizenship clauses could be put at rest by three ways. One, government agencies should disseminate the constitution in English, Maithili, Bhojpuri and other local languages so that Madhesi people could read and interpret the legal provisions on their own. This will frustrate the role of activists. Two, there could be check on the authorities involved in disseminating citizenship by taking bribe. Third, people, politicians and public institutions should stand on the same page to consolidate ethos of constitution. It will help all of us to travel on the path of a meaningful democracy. 

The author, formerly a lecturer of Kathmandu University School of Law, is currently a Judicial Officer with Janakppur High Court, Birgunj Bench    

 
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