Unequal by law

  • The constitution needs to be amended so that people of all genders can receive equal treatment
- Sanjay Sharma, TINGYI YANG

Jan 27, 2017-

On January 22, the Supreme Court ruled that there should not be any hassle for children to receive citizenship through their mother when the father is ‘unidentified’. The decision was in response to authorities denying citizenship to such children through descent in case it is revealed later that their father is a foreigner. Even today, many societies are governed by patriarchal values, which are reflected in some form at state the level. While some countries are marching towards gender equality with progressive policy changes and implementation, others are turning more conservative. 

Here, in an attempt to highlight some retrogressive steps made by a secular democratic republic, we map out the constitutional provisions in Nepal that are unequal in terms of women’s citizenship rights. Because of the heteronormative mindset of the lawmakers (they promote heterosexuality as the preferred sexual 

orientation), we argue that the citizenship provisions undermine the rights of all genders. Additionally, we look at similar provisions that were in place in Japan a few decades back and try to argue how societies are guided by similar ideas across time and space. 

Disengaging women

The 2015 Constitution of Nepal requires both the father and the mother to be Nepali citizens for their children to be able to get a citizenship certificate through descent. Earlier, there was a ‘father or mother’ clause in the 2006 National Citizenship Act and the 2011 Supreme Court directive to grant lineage-based citizenship. It is somewhat ironic that in a country where the President, the Speaker of the Legislature-Parliament and the Chief Justice of the Supreme Court are women, the current provision is an attempt to disengage women from the state. The proponents of the ‘or’ clause believed that it would threaten national security, and make immigration easier because of the open border with India and cross-border marriages. Readers interested in more details can refer to the opeds by Bhim Rawal and Sapana Pradhan Malla in Kantipur and The Kathmandu Post in July 2015.

The ‘and’ provision contradicts other principles of equality, such as non-discrimination, property rights, maternal lineage, women’s special rights, etc. Now, a Nepali woman married to a non-Nepali man can transfer citizenship by naturalisation to her children, while a Nepali man married to a non-Nepali woman can transfer citizenship by descent. 

Similarly, for a single woman to be able to transfer lineage-based citizenship to her child, she will have to prove that the father of the child was not a foreigner and the child was born in Nepal. Malla writes, “The ‘and’ clause denies the citizen’s right to choose partners in marriage, right to choose domicile, right to family, and right of daughters to child custody.”

The Japanese example

In 1950, when Japan adopted its new nationality law after World War II, it was, in a broad sense, patrilineal and similar to Nepal’s current provision. According to the law, a child could acquire Japanese nationality by birth if the father was a Japanese national. A child born to a Japanese mother and a foreign father could only have Japanese citizenship if the father was unknown or stateless. This means that those who were born to a foreign father under the law, despite having lived their whole life in Japan and speaking only Japanese, were still considered ‘aliens’ in legal terms.

In 1978, a case was brought to the Tokyo District Court in Japan. A Japanese woman, an American man and their daughter argued that this part of the nationality law showed a clear discrimination against women and was unconstitutional. In the Japanese constitution, one article says that “there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin.” The case was later also brought to the Tokyo High Court and the Supreme Court. Although the courts ruled against the plaintiffs, the case was reported by domestic and foreign newspapers and drew public attention. 

The 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) requires equal provisions for both genders. Eventually, planning to ratify CEDAW and facing pressures from minority groups, Japan in 1984 passed amendments to the 1950 law. The new law granted Japanese fathers and mothers equal rights of conferring citizenship on their children without depending on each other.

Four patriarchal ideas

Overall, discriminatory citizenship laws are guided by four major patriarchal ideas: that women have to move to their husbands place after marriage, and not the other way round; that they should be protected by men, thereby creating discrimination against single women, single mothers, LGBT couples, and even single men; that families have to be heterogeneous with male members taking care of the rest; and that ‘purity’ should be maintained in lineage.

Although the belief that a woman marries into her husband’s household is narrow and biased, it partly explains why patrilineal citizenship laws were adopted widely, not just in Japan and Nepal. 

Becoming a citizen is essentially becoming a member of the community. When a woman marries into the man’s community, their children are ‘automatically’ considered members. This belief goes against the principle of gender equality and is strongly guided by patriarchal and heteronormative values. Although Japan amended its biased laws, Nepal recently adopted such unequal provisions. Traditional notions regarding gender and sexual relations are influenced by complicated beliefs and values, and only parts of these are manifest in the citizenship laws. Many of these, by appearing in the state systems, define how societies are structured today. 

However, while political parties and the civil society are engrossed in the state restructuring process, issues like these are being marginalised. A discussion was started by a few 

activists and journalists last year, but since then, public discourse has subsided. Simple having some women in state positions will not make Nepal egalitarian. Progressive laws have to be formulated and implemented. No matter how much politicians extol the constitution, it is undoubtedly biased against women and other non-male genders. An amendment to this is also necessary, but it seems to have taken a back seat for now.

 

Sharma and Yang study political science at the Central European University, Hungary

Published: 27-01-2017 08:46

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