The common bar

Published On: November 22, 2016 12:25 AM NPT By: Sushrey Nepal

Sushrey Nepal

Sushrey Nepal

The contributor for Republica.

Barring exceptions in handful of countries constitutional positions are primarily reserved for citizens by descent
Disputes over constitutional qualifications for appointment of naturalized citizens in public offices are not new. The issue was used to ignite last year’s Madhesh movement and it has come to the fore again as the government prepares to relax conditions on naturalized citizens. 

Madheshi parties claim that the new constitution has curtailed the rights and powers granted to naturalized citizens by the Interim Constitution. But the interim constitution was silent about the rights of naturalized citizens. Article 155 provided that constitutional positions was open to any person who is a citizen of Nepal, by birth, descent, or having acquired naturalized citizenship after residing in Nepal for at least 10 years. Even though this provision did not spell out all constitutional positions naturalized citizens were eligible for, it was interpreted to mean that any person who has obtained Nepali citizenship was worthy enough for appointments as the head of constitutional bodies, even as Prime Minister and President. Unsurprisingly, this provision had proven controversial when the interim constitution was promulgated in 2007.

Article 289 of the new constitution has special provisions on citizenship requirements for certain public posts. It says that a person must be a Nepali citizen by descent if he/she is to be elected or nominated as President, Vice President, Prime Minister, Chief Justice, Speaker of the House of Representative, Chief of State, Chief Minister, Speaker of State Legislative Assembly, and Chief of a security body.

The constitution does not curtail naturalized citizens’ right to contest for other public offices. But Madheshi forces believe this provision is discriminatory as it infringes on the fundamental rights of naturalized citizens. But what is the practice elsewhere?

Naturalization is an established concept in the municipal laws of most nations. Over the years, naturalization has been a topic of hot debate. Article (2) of the American constitution, for example, mentions that only “naturally born citizens” of the US are worthy of being nominated for the office of President. The reason that the constitution hasn’t defined the term ‘naturally born’ has often created controversy. 

During the 2008 presidential campaign, there were claims that Barrack Obama was not a ‘naturally born citizen’, which the US Supreme Court had dismissed. Obama’s mother was an American citizen while his father was from Kenya, but Obama himself was born in the US.  

While trying to secure the nomination of the Republican Party this year, Ted Cruz’s eligibility had been questioned as he was born in Canada to an American mother and a Cuban father. 

The criterion to become the Prime Minister of India is pretty much straight forward. The Indian Constitution pronounces that the person needs to be a citizen of India in order to become the prime minister. However, experience shows that the possibility of a naturalized citizen or a citizen by registration to become the head of state in India is almost zero. 

Sonia Gandhi had to forfeit Prime Ministership in 2004, even though she led the United Progressive Alliance (UPA), which had the majority in national parliament. Her opponents cited the provision from Indian Citizenship Act which mentions that a person getting Indian citizenship under marital registration shall not be eligible to enjoy privileges an Indian gets in his country of origin. They argued that if a naturalized citizen of Indian origin cannot become PM in Italy (Ms Gandhi’s nation of origin) the same law should apply to a citizen of Italian origin in India.

Bhutan has a stringent citizenship law using which it expelled millions of its citizens in the 1990s on the pretext that these people didn’t have legitimate Bhutanese lineage. The debate resurfaced when the country which had denied citizenship to their nationals of Nepali origin crowned a Nepal-born crown prince as their monarch in 2006. 

Moreover, the constitution of Bhutan states that the ‘Golden Throne of Bhutan’ shall not pass to a person who enters into a marriage with a person other than a “natural born citizen of Bhutan.” The constitution of Mexico requires her President to be “Mexican by birth.”

Laws in the UK are considerably lenient for foreign-born citizens. A person is qualified to become the prime minister so long as he is the citizen of the UK. However, Andrew Bonar Law is the only prime minister born outside the British Isles.

Barring exceptions, constitutional positions are primarily reserved for citizens by descent around the world. Those who argue against this norm say that the world is becoming a global village as inter-state migration is on the rise. Therefore, they say, every person should be seen as a global citizen and equal rights must be granted to them. But such arguments are impractical.

For countries like Nepal allowing naturalized citizen to become head of state will backfire. Our geo-political situation is such that if the constitution is amended and naturalized citizens are bequeathed the same privileges as citizens by descent, it will ultimately put our sovereignty in jeopardy.


The author is a BSL fellow at Indian Law Society’s Law College, Pune

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