Hopes that were raised by the announcement that the citizenship provision in the new constitution would allow for mothers to pass on citizenship to their children have been dampened by the release of the text of the proposed provision forwarded to the Constituent Assembly for deliberation.
The first clause on citizenship in the document, which the Political Dialogue and Consensus Committee (PDCC) regards as ìsettledî, says that a person can apply for citizenship through either of their parents if both are Nepalis. This means a person gets to choose which parentís name will appear on their citizenship card, but the person will still have to prove that both their parents are Nepalis.
In contrast, both the Citizenship Act (2006) and the Interim Constitution (2007) explicitly state that the child of a Nepali mother ëorí a Nepali father can obtain citizenship by descent.
After Baburam Bhattarai, chairman of the PDCC, hailed the provisions as a ìprogressive step for gender equalityî, many had become optimistic about attempts to ensure gender parity in citizenship law.
But women rights activists, who have long been advocating the ëorí provision--in which a mother or a father can pass on citizenship to their children regardless of the nationality of their spouses--say that this ìnewî clause is a convoluted way of passing laws in favour of the ëandí clause, in which a person has to prove that both their parents are Nepalis.
ìIt seems like they are giving us a choice, but that choice only comes after we have established the truths of our parentsí nationality. This is still the ëandí provision,î said Sapana Pradhan Malla, a women-rights lawyer. ìAll the democratic constitutions of the world have ensured citizenship of descent through either of the parents.î
Thousands of children are currently stateless because the government demands proof that their fathers are Nepalis. Many mothers whose husbands have disappeared or abandoned the family or have died struggle to provide citizenship to their children because the Chief District Officers often demand proof that the fathers are not of foreign nationality. ìAll we demand is gender equality, to recognise a Nepali womanís right to pass citizenship to her children.
The verbal agreement the senior leaders of the major parties reached on Wednesday seemed progressive, but the written document retains the old provisions,î said Hisila Yami, a UCPN (Maoist) leader. The clause on citizenship for children of a Nepali married to a foreign national also seems more liberal but is cloaked in conditions which make it harder for such children to obtain Nepali citizenship. The first condition requires a Nepali married to a foreigner to specify at the time of their marriage that the Nepali spouse will retain the Nepali citizenship and will remain in Nepal permanently. The second condition requires that the children of such parents should apply for citizenship a year after they come of age.
ìPutting a statute of limitation on a personís right to citizenship is absurd. A person born to a Nepali parent should be able to apply for citizenship whenever s/he wants,î said Malla.
But the drafters are not ready to accept that there ia problem in the provision of citizenship by descent. UML leader Gokarna Bista, also a member of the subcommittee that finalised the document, said there will be clarity once there is an Act on it. ìAlso, citizenship by descent was never an issue. The debate was about naturalised citizenship. We have included a provision allowing Nepali women married to a foreigner to pass citizenship to her children in her name,î said Bista. The decision was taken unanimously.
During the deliberation on contested issues of naturalised citizenship, Madhesi parties wanted to continue the old provision, which allows a foreign female married to a Nepali male to acquire Nepali citizenship immediately after the marriage. However, the old provision requires a foreign male married to Nepali woman to reside in Nepal for 15 years before applying for Nepali citizenship. As of now, the PDCC has retained these provisions in the forwarded draft. Earlier, the subcommittee formed to settle disputed issues had proposed seven-year residence for all foreign spouses, both male and female, married to Nepali nationals to be eligible to apply for Nepali citizenship.
ìContinuation of the old provision is discrimination against women, as it is a continuation of the notion of dependent nationality, which means that after marriage womenís own identities are lost and new ones created through the husband. These are traditional and prejudiced values that contradict all norms of human rights,î said Malla.
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