Now that the Preliminary Draft of the Constitution of Nepal-2015 has been sent to the public for feedback, citizens should seize the opportunity to react to it. Here are my observations.
Citizenship certificate is among the first necessary legal documents of an individual to claim state facilities. Chapter two of the draft mentions various grounds for acquisition and termination of citizenship. Provisions for acquisition of Nepali citizenship have been broadened. But some conditions continue to remain vague, controversial and misleading.Clause 1 (b) of Article 12 has ample rooms for controversy. It mentions "a person whose mother or father was a citizen of Nepal at the time of his/her birth and both the parents of such a person are Nepali citizens at the time of acquisition of his/her citizenship." Parsing the language of the clause yields two interpretations. One, to obtain citizenship, either father or mother (any one of them) can be a Nepali citizen at the time of the birth of the person. Two, when such person is to obtain a citizenship, his/her parents (both of them) should be Nepali citizens.
The first part of the clause uses 'or' to separate parents (father or mother), and the second part, puts 'and' (father and mother) to indicate both the parents of the person applying for a citizenship. This means when it is time to obtain citizenship for child, both father and mother must be Nepali citizens.
Clause 4 of Article 12 has a welcome provision for females. It says that "A person born to a Nepali citizen mother and who has domicile in Nepal but whose father is not known, shall be granted Nepali citizenship by descent." But the article fails to mention Nepali mothers deprived of a citizenship certificate owing to different reasons and thus effectively denies her child the citizenship.
Similarly, provisions for obtaining a naturalized citizenship under Article 13 are also dicey. Clause 4 (b) stipulates that any foreigner willing to obtain a naturalized citizenship "should be engaged in some business." When it comes to business, there are specific places where a foreigner is not allowed. In practice such earned profit is remitted to the person's country of origin. It might be better if the provision emphasized social service and contribution of such an individual to the country rather than demanding "engagement in business".
Clause (e) of the same Article requires that "a citizen of the country which has the practice or legal provisions to offer naturalized citizenship to Nepali citizens" can be eligible for naturalized citizenship of Nepal. This notion is based on 'tit for tat' principle. To make citizenship conditional on domestic provisions of another nation is ludicrous. Moreover, it is unfair to have legal provisions based on prior conditions of an alien nation. Practically, there is no point in refusing a candidate with fair character and competence and willing to acquire naturalized citizenship on the ground that his/her nation does not allow Nepali nationals from obtaining naturalized citizenship.
Finally, the ground for providing citizenship to Non-residential Nepalese (NRN) mentioned in Article 19 is yet again confined. It restricts Nepali residing in SAARC nations from obtaining such facility. We should not overlook the objectives behind the introduction of this provision. This clause is aimed to attract possible investors of Nepali origin to participate in the socio-economic and cultural development of Nepal. As such, to restrict any willing Nepali from participating in national development just because s/he is a SAARC national seems ideologically motivated. Moreover, we should not forget that our immediate neighbors have a crucial role in socio-economic development of the nation, much more so than the countries that are geographically far.
Regarding the rights to equality, it is the duty of the state to ensure that every citizen is equal before the law. However, there are certain groups of person/s who have been historically subjected to social, economic, political and legal discrimination and subjugation. These people have no or very less access to state mechanisms including education, health, courts and job opportunities. Hence, it is the duty of the state to ensure that these groups are provided with special provisions for empowerment, protection and easy access to state facilities.
Article 23 (C) of the draft has envisioned specific provisions for bringing these groups into socio-economic, political, cultural and legal mainstream. The inclusion of the term 'economically backward' has enhanced the chances of vulnerable groups being the priority of the state.
Meanwhile, the scope of this provision has been broadened as compared to previous constitutions. It includes economically backward groups of people including the 'sexual minorities' and 'Khas Arya.' The clause also specifies that 'economically backward' means anyone below the poverty line. The provision for Right to Equality has been broadened for larger benefit of the economically backward groups irrespective of their caste, creed and social upbringing.
The author is an advocate at the Supreme Court of Nepal
luitelchandraprasad@gmail.com
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