Print Edition - 2017-08-20  |  Free the Words

Barrier to gender equality

  • Eliminating citizenship discrimination in Nepal is essential
- WENDY YU

Aug 20, 2017-Nepal has recently been in the spotlight for controversial governmental actions surrounding the adoption of its new Constitution in 2015. Despite this legislative attempt to “eliminate[e] discrimination based on class, caste, region, language, religion and gender and all forms of caste-based untouchability”, the population’s mind-set and cultural practices are big obstacles. 

There has been enactment of provisions and laws that uplift the status of women and minority groups. Nonetheless, looking at the practical reality, the right to equality has not been properly practiced in Nepal; the patriarchal society prevails. The female population is discriminated against, even when it comes to something as fundamental as citizenship. 

Citizenship discrimination can occur in three situations. The first is between a Nepali father and a Nepali mother. A Nepali father can easily confer citizenship to their children, whereas a Nepali mother needs to furnish evidence that her husband is Nepali. The second is between a male spouse and a female spouse. A male spouse can confer naturalised citizenship by marriage to a foreign female spouse, whereas a female spouse cannot confer the same to a foreign male spouse. The third is between sons and daughters. A son can acquire citizenship from his parents whereas a daughter can only acquire it after she gets married. If she gets married to a foreigner, she cannot acquire Nepali citizenship. With the adoption of the new Constitution, an important modification to article 11.2 B was brought forward. Citizenship by descent can be acquired by anyone whose mother or father is a citizen. The double requirement has been removed. It appears that Nepal is taking a step forward in its pursuit of equality; however, what frequently occurs is that a Nepali mothers’ rights often end up being disregarded. 

Once again, the mind-set of women being under the subordination of men can be seen, further emphasised in articles 11.5 and 11.7. 

Constricting provisions 

Articles 11.5 and 11.7 are new provisions that restrict article 11.2 B. As stated in article 11.5, in case a person whose mother is a Nepali citizen and if the father is unidentified, then the child born to a Nepali mother, in Nepal, can acquire citizenship by decent only if the father cannot be traced. On the same note, article 11.7 states that a person whose mother is a Nepali citizen and whose father is a foreign citizen can only acquire naturalised citizenship in Nepal. 

These provisions clearly classify Nepali women into three categories: a woman married to a Nepali man, a woman married to a foreign man and a woman whose husband is unidentified or cannot be traced. In terms of article 11.7, naturalised citizenships are not issued because it becomes a matter of the discretion of the state. Even if the entire conditions are fulfilled and all the documents are submitted, the government can maintain its refusal to provide citizenship. There are numerous citizenship demand cases that go to court. The court has stated many times that they constitute precedents that apply to all cases. The court decisions clearly push for precedents of allowing citizenship, but the implementation authorities do not interpret it that way.  

There are two steps to getting a citizenship certificate. The first step is to get a recommendation from the local bodies. The second is to go to the district administrative authority. The problem is that these two different authorities are under two different ministries. The Ministry of Home Affairs (MoHA), under which the district administrative authorities function, have issued several directives to push for fair judgement in citizenship cases. These circulars do not reach the local or village 

executive offices; thus, recommendations are not issued. Since the local executive bodies do not fall under the purview of MoHA, they need not follow them even if they are aware of such directives.

Stuck in the past

Another problem is the authority’s primitive mind-set. Xenophobia is prevalent among the administrative officers, so they refrain from issuing recommendations. The patriarchal mind-set comes into play when someone tries to get citizenship through their mother; they immediately ask about the father’s citizenship. And, when a married woman tries to acquire citizenship through her father, they ask for the husband’s approval. 

In most cases, implementation authorities are not even aware of the law or the Supreme Court’s decisions. Subin Mulmi, human rights attorney for the Forum for Women, Law and Development attested to this by saying that the government needs to hold more training with respective local bodies and civil society. “If there is a proper accountability mechanism for the two authorities and if the civil society is complemented with government efforts, then there will be a lot of progress,” he further claimed. The future of Nepal is optimistic, as several major reforms have taken place, with a female president sitting in office and the first district elections in 20 years being conducted with relative success. Nepal has already evolved through seven constitutions. Fundamental rights have increased and access to justice improved. Nevertheless, eliminating citizenship discrimination is essential for equal treatment. 

 

Yu is studying law at the Université de Montréal and conducted research in Nepal

Published: 20-08-2017 08:06

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