Discriminatory Citizenship Provisions in Nepal’s Preliminary Draft Constitution 2072 (2015)

Ajay Pradhan | June 30, 2015

Yesterday, the Constitution Drafting Committee submitted to Nepal’s Constituent Assembly the preliminary draft Constitution, 2072 (2015). (You can download the draft Constitution here).

I gave Part 2 a read, which is devoted to citizenship. Part 2 contains Articles 10 through 20. This commentary only focuses on Part 2 of the draft Constitution. I do intend to read the rest of the Constitution and post commentary on other provisions of relevance to people's rights.

It doesn’t take you long to notice that the draft Constitution has discriminatory citizenship provisions based on gender. The gender-based discrimination applies to citizenship by descent and citizenship by naturalization.

Citizenship by Descent

Article 12 has provisions for citizenship by descent.

Article 12, sub-article 1, clause a (ka) requires both father and (not or) mother to be Nepali citizen at the time a child is born for the child to be able to obtain Nepali citizenship by descent.

Article 12, sub-article 1, clause b (kha) also requires both father and (not or) mother to be Nepali citizen, of which at least one is a citizen by descent, for their child to be able to obtain citizenship by descent.

These two clauses don’t quite look discriminatory, do they? Read Article 12, sub-article 4 and you’ll see that they are, in fact, discriminatory provisions           .

Article 12, sub-article 4 allows citizenship by descent through mother, if the father is unknown. However, this sub-article disallows citizenship by descent through mother, if the father is known to have foreign citizenship. Curiously, though, this provision does not apply if the gender is reversed. If the father is Nepali and the mother is a foreign citizen, there is no clause disallowing citizenship by descent through father.

Do Nepal’s political elites want to perpetuate a patriarchal society or what? What century are they living in?

This is not all. Read provisions for citizenship by naturalization. The gender-based discrimination becomes even more stark and reveals the misogynistic mindset of Nepal’s political elites.

Citizenship by Naturalization

Article 13 has provisions for citizenship by naturalization.

Article 13, sub-article 1 requires the foreign husband of a Nepali woman to spend 15 years in Nepal before he becomes eligible for Nepali citizenship by naturalization.

So, what’s the big deal? Let him wait 15 years and then apply for citizenship. Fair enough? Well, that’s now how it would work in the case of a Nepali man with a foreign wife. Nepali man gets the better deal than Nepali woman.

Article 13, sub-article 2 does not require the foreign wife of a Nepali man to wait 15 long years before she becomes eligible for Nepali citizenship by birth. The foreign wife of the Nepali man does not even have to wait one year; she is immediately eligible for citizenship.

Why this gender-based misogynistic discrimination? One can only assume that it is driven by politicians’ zeal of hyper-nationalism, fear against India and India’s perceived demographic pressure and influence in Nepali state. Do one thing. Call and talk to your Nepali politician uncle from Nepali Congress, UML or Maoist parties and your ultra-nationalist, chauvinistic uncle will explain that this discrimination is in the national interest.

Tell him, this is unacceptable in the 21^st Century.

Dual Citizenship vs. Non-Nepali Resident Citizenship Card

Article 18, sub-article 1, clause b (kha) ends your Nepali citizenship if you acquire foreign citizenship. So, no dual citizenship for you.

But, interestingly, Article 19 provides that Non-Resident Nepali Citizenship can be (not shall be or will be) given to people of Nepali origin who have taken citizenship of non-South Asian countries (i.e., countries outside of the South Asian Association Regional Cooperation or SAARC). The draft Constitution does not define the term “people of Nepali origin” and is silent on the status of a non-resident Nepali’s children, grand-children and their children who are born in a foreign country, live in a foreign country and are citizen of a foreign country.

Clause b (kha) of sub-article 1 under Article 18 appears to contradict the provision of Article 19. Clause b does not have a notwithstanding clause to accommodate Article 19, leaving the provisions potentially subject to dual interpretation before a court of law, killing the provision under Article 19.

As a non-resident Nepali, I think you should all voice your concern to the appropriate authority, directly, through media or, at least, through social media.

Silence is not an option.