There is systematic exclusion in the conferral of citizenships

  • Interview Sapana Pradhan Malla
There is systematic exclusion in the conferral of citizenships

Sep 21, 2014-

The Nepal Citizenship Act 2006 gave a Nepali mother a right to confer citizenship to her children by descent. The act said that a person born to a Nepali mother or a Nepali father can be a citizen of Nepal. But after the initial euphoria, the current Constituent Assembly (CA) is drafting a provision which seeks to overturn a woman’s right to grant citizenship to her children. Dewan Rai spoke to women rights activist and former CA member Sapana Pradhan Malla about what the controversial provision means to gender rights movement, how the state can amend it and why it should do so.

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What is the citizenship debate all about?

The debate is about the discriminatory provision in law, which does not allow women to confer citizenships to their children. It is about how the constitution currently being drafted is more regressive from women’s perspective when the country is trying to be more progressive. It is also about how gender inequality and prejudice are being propagated through a discriminatory clause on citizenship. The citizenship debate is about correcting the language in that clause so that the women’s rights to confer and retain citizenship are guaranteed.

What does the draft provision

really say?

The present draft says that both the “father and mother” should be Nepalis for a person to acquire citizenship through the lineal descent. If not, a child is eligible only for the naturalised citizenship. On the other hand, a foreign spouse of a Nepali man can be a Nepali citizen once she starts the process of relinquishing her foreign citizenship. For a Nepali woman married to a foreigner, though, the husband has to wait for 15 years before he can become a naturalised citizen of this country. The draft on citizenship has also proposed that a woman who gets a naturalised citizenship based on marriage can hold constitutional public positions in Nepal but naturalised children of Nepali parents are not allowed to hold such offices.

By replacing the ‘or’ conjunction with ‘and’, how has the legal meaning of citizenship changed?

In Nepal, one woman dies every six hours while giving birth but she cannot give a citizenship to the child she gives birth to. Her independent existence as a citizen has never been recognised. With the insertion of the ‘and’ conjunction, even the identity and existence of a Nepali man is unrecognised. With the proposed provision, the married couples, if their relationship ever sours, will have a problem acquiring citizenships for their children. This will leave thousands of people stateless. This is a systematic exclusion in the conferral of citizenships.

What does the proposed citizenship provision mean for matrilineal inheritance of citizenship?

It means non-recognition of motherhood and reproduction. In other words, it means not realising that men do not get pregnant. The current provision takes away women’s power to provide an identity to the child she gives birth to. This implies continuation of discrimination based on sex. It means women cannot be the basis through which a child creates a relationship with the state. The provision controls women’s freedom to marry whomever she chooses and to reside wherever she wants. It perpetuates the patriarchal notion that women have to ‘go away’ post-marriage and that marriage is the basis through which she receives state rights.

Why is it important for women to be able to grant citizenship to their children?

This is important to make sure that no one becomes stateless. We need to recognise that mothers are equal citizens, that motherhood is a reality. Citizenship is the base of all the other rights that an individual in a state and on international arena enjoys. No one should be stateless and without identity, which a citizenship provides. It is important to protect children from discrimination and stigma.

By saying that both ‘father and mother’ need to be Nepalis to

acquire a citizenship, how does the clause hurt the Lesbian, Gay, Bisexual, Transgender, Intersex (LGBTI) movement?

This provision is contradictory to the state’s recognition of the LGBTI community. By explicitly saying that a man and a woman have to be the parents for the child to be a Nepali citizen, the clause has completely excluded LGBTI couples. LGBTI couples can comprise only males or only females. And they can have a child, which is their right as well, through surrogacy or adoption other than male and female copulation. What happens to their child then?

What are the alternatives to the provision currently being entertained?

Either of the parents (father or mother) should be given the right to confer citizenship. For a married spouse of a Nepali person, the provision should include a minimum five-year residency in Nepal, instead of the current 15 years, to be eligible for a naturalised citizenship on relinquishing the previous citizenship.

Why is there such a great reluctance to retain the ‘or’ provision as included in the 2006 Act and as dictated by the Supreme Court in 2011?

The easy excuse politicians often use is that allowing either of the parents to provide citizenship increases the national population, as there is an open border with India and a high prevalence of cross-border marriages. Retaining the ‘or’ provision is also taken as a threat to national security. Politicians and bureaucrats also doubt the loyalty of children born to a foreigner husband toward the state.

They seem to fear that if a foreign man’s chid is allowed to become a Nepali citizen, foreigners will ultimately control the politics and economy of the country. One can argue

for and against these fears, but basically it is all related to how women, their independence, identity and nationality are perceived.  

What do you think of the nationalist argument? And how do you deal with the fear?

What is nationalism? It is just another sentiment. What needs to be considered are the feelings of anger and frustration in women that the present situation is creating. It is disengaging women from the state. Why do the political leaders think their own mothers, daughters and sisters are against the state? With marriage, a woman’s feelings for her country, her national sentiments and loyalty do not automatically change.  

Is the open border with India a problem when it comes to citizenship or is it the problem of management?

In fact, due to bad governance, there is an underground market active on citizenship forgery and sales and a large number of such cases are registered with the anti-graft body.

Why does the concept paper submitted by the Committee on Fundamental Rights and Directive Principles say that the state will follow ‘rigid’ principles while writing the citizenship chapter?

The concept paper also says it will follow non-discrimination principles. A report by the Committee on Fundamental Rights and Directive Principles says, “Ansa [property] and Bansa [heredity] of women will be guaranteed.” The question then is what they mean by ‘rigid’ principles on citizenship.

Can the Political Dialogue and Cons-ensus Committee enter this debate?

In the last Constituent Assembly, the then-High Level Political Committee endorsed the discriminatory provisions on citizenship—from the ‘and’ clause to the 15-year requirement in the case of a foreigner husband.

But because the Committee was not part of the CA and because women

CA members opposed the discriminatory provisions, the endorsement became highly contentious. Then the responsibility to settle the dispute was conferred to the Constitutional Committee (CC).

The CC formed a taskforce to settle the issue. On May 16, 2012, the taskforce, however, passed the citizenship provision as it was, without any alteration. The whole process can be read in Darpan (pages 276-453), a book compiling the CA proceedings.

How can we improve the Citizenship provision?

The drafting committee in its observation has mentioned that the provision of “father or mother” can be considered. So, if the Political Dialogue and Consensus Committee wants, it can open a debate on the provision. The chairpersons of the CA and the political leaders also have ‘special’ powers to amend the provision.

When the bill goes for public discussion, media and civil society can provide public input. The house then can instruct the drafting committee to incorporate the public’s concerns in the bill. If this does not happen, the CA members can also register an amendment proposal in the final bill. Political parties should also remember that their manifestos are committed to ensuring identity through mothers.

But there is also a chance that the bill will be endorsed without any

public consultation.

Published: 22-09-2014 09:51

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