President’s Unconstitutional Move on the Citizenship Bill

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President Bidya Devi Bhandari failed to meet the deadline to authenticate the Citizenship Bill. Photo: RSS.

The amendment Bill to the Citizenship Act 2006 was first passed by both the houses and was sent on 5 September 2022 to the President for authentication. The President then sent back the bill to the parliament with 15 different recommendations/ suggestions which was within the prerogative of the President. However, both the houses passed the bill again without making any changes whatsoever. The President is then under the constitutional obligation to pass the bill within 15 days. However, the President failed to do so. This amounts to violation of the constitutional provision on the part of the President. The inability to solve the issue of Citizenship is pushing more and more people into statelessness every year. Thousands of people who are denied the citizenship are deprived of basic privileges offered by the state

The earlier bill to amend the Nepal Citizenship Act, 2006 had been pending in parliament since 7 August 2018. Despite repetitive discussions, the State Affairs and Good Governance Committee of the House of Representatives were not able to reach an agreement on the bill. Then, the cabinet meeting decided to table a new one by removing the existing one. Home Minister Bal Krishna Khand put forth a withdrawal proposal on July 8 2022 for the bill amending citizenship that had been introduced by the previous CPN-UML administration. The main purpose of the second amendment to the citizenship bill was to address the worries of non-residents and stateless individuals. The National Assembly already passed the bill that the House of Representatives approved.

The President’s refusal regarding authenticating the bill is facing huge criticisms. Five written petitions were issued against her. The Supreme Court has also issued a show-cause notice, asking for reasons behind her decision.  The President is yet to submit it. According to some political observers, the President’s decision to invite party leaders and voice her concerns was improper because the decorum does not provide for such activism.

The Citizenship Act, on the other hand, contains a few clauses that violate equality rights. For instance, Article 11 (2.b.) states that a child born to a Nepalese mother or father (who holds citizenship) will receive citizenship by descent. Likewise, Article 11(5) states that the person born to a Nepalese mother but an unidentified father can be granted citizenship by descent. This demonstrates a gender disparity and violates a mother’s “Rights to Equality” because it is only women who must first declare that the father is unidentifiable in order for their kid to be given citizenship. The father’s side is not obligated to make any such declarations.

Some observers believe that  since the president is close to CPN- UML, it might be UML’s political motive to garner votes in the upcoming national and provincial polls. The CPN-UML intends to make marriage based naturalization without cooling period an election agenda linking it with nationalism. Each of Nepal’s neighbors has established a certain waiting period before applicants are allowed to submit citizenship applications. The proposed bill is silent on the previous provision of marital naturalized citizenship for foreigners marrying to Nepali men without any cooling period. A section of people are worried that removing the waiting period will make citizenship less valuable.

Despite the constitution not allowing for such activism, the experts state that the constitution lacks a “clear provision” stating what will occur if she does not authenticate the bill, the President will neither support the bill in its current form nor resign. Does the bill itself become law if it is not passed? It is unclear what action the relevant authorities should take as a result of the constitutional flaw.  

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