When the proposal of the political ´High Level Task Force (HLT) overrode the Fundamental Rights Committee´s proposal on citizenship provisions, it evoked dissatisfaction among women and child rights activists. The proposal is problematic in three ways: It discriminates between men and women, it invites the statelessness of children and it reinforces stigma of those women/children whose husband/father cannot be identified.
According to the HLT, citizenship by descent will be granted to children only if both the mother and the father are Nepali citizens. This provision not only invites the statelessness of those children who are born from couples of cross border marriages, it will invite the statelessness of children born out of Nepali couples in many other circumstances as well. For instance, if both parents are Nepali citizens, but one of them could not produce written evidence of being Nepali citizen to the authority while applying for his or her child’s citizenship card, the child will become de-facto stateless.
Children of parents who are single due to various reasons – rape, trafficking, unsafe migration, or children abandoned by either of their parents, etc – are in potential risk of statelessness. Currently there are thousands of children born in Nepal who do not have citizenship because they do not have documentation of their father being a Nepali citizen.
In terms of discrimination, the proposal sets different conditionalities for men and women who have married non-Nepali citizens. Foreign wives of Nepali men are entitled to citizenship immediately after they initiate proceedings to renounce prior nationality, whereas the foreign husbands may only apply for naturalization after 15 years of residence in Nepal.
Not only does this proposal discriminate between men and women in Nepal, the proposal entirely disregards the state´s commitment to various human rights instruments such as the Convention on the Rights of the Child and Committee on the Elimination of Discrimination against Women.
The provision of acquired citizenship may save the children born out of cross border marriages from statelessness. However, for acquiring naturalized citizenship, the Nepali mother or father must produce several documents including evidence that the child: (1) was born in Nepal; (2) has resided permanently in Nepal; and (3) has not acquired foreign nationality through mother or father´s nationality. This means that children born out of cross border marriages outside Nepal, but live with their Nepali mother or father in Nepal, are not eligible to apply for naturalized citizenship and they are also vulnerable to becoming stateless.
High Level Task Force is proposing a law that will be similar to that of Bhutan, which drove over a million people from their homes, or making Nepal like Myanmar and Congo, where citizenship of both the parents is a prerequisite to ensure a child´s citizenship.
Further, we must not forget that naturalized citizenship is not a right of any individual, but is a matter of state discretion. The government holds the authority to reject applications for the naturalization of these children even if all of the requirements are met. The proposal on naturalized citizenship shows the limited understanding on the principle/concept of ´naturalized´ citizenship. Basically, it is provided to an alien who is already a citizen of a foreign country. But, how can we define the children born of Nepali citizen (man or woman) and do not receive any country´s citizenship as aliens?
Nepali women in particular report facing difficulties in obtaining citizenship certificates, especially when their husband or family members refuse to help them or are unavailable to do so. However, HLT’s current proposal removes the capability of Nepali fathers as well to independently convey citizenship to their children and this further weakens the rights of Nepali children to acquire a nationality and a legal identity.
The question here is not ensuring the citizenship to the child of foreign spouse but rather whether in the case of a Nepali citizen (men or women), the state can deny the right to confer citizenship to one’s own child in a society where fundamental human rights of each individual is to be respected. Nepal is not a party to the UN Convention on Reducing Statelessness but is a state party of more than 24 Human Rights Conventions and Treaties that must be respected.
Despite these grave consequences, influential political leaders, intellectuals, former Nepal Government´s senior officers and civil society activists have justified the HLT´s proposal on the ground of nationalism. These people do not seem confident that Nepal can maintain a balanced relationship with its neighbors and at the same time protect Nepal´s integrity and territory. Because of this psychology of fear, they are lashing out against those people and organizations that advocate for equality and human rights for Nepali children.
However, while saying this, they have not realized the possible threats from foreigner women who marry Nepali men. Given such loopholes, will sticking to the unequal provisions that has been proposed by HLT protect us from possible threats to our nationalism and security of our territory from our giant neighbors as is being claimed?
Thus, the problem lies on our unregulated open border, election-centric leadership, rampant corruption in authority, weak governance, government, asymmetric relationship and our fear psychology vis-à-vis our giant neighbors. The question that we should rather ask is: Is it wise to disrespect the value of human rights, and reinforce inequality and discrimination among our own citizens? Doesn´t carrying the patriarchal value-based discrimination and Hegelian concept of citizen as an ideology and value invite conflict and put our nationality/territorial boundary at risk in the near future?
Moreover, HLT is proposing a law that will be similar to that of Bhutan, which drove over a million people from their homes, or making Nepal like Myanmar and Congo, where citizenship of both the parents is a prerequisite to ensure a child´s citizenship. On the pretext of nationalism, we must not be unfair to the women and children of the country.
The writer is a development lawyer
indu.tuladhar@gmail.com
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