Constitution amendment

The citizenship debate

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Nepali Citizenship

Citizenship has been one of the more contentious issues in Nepali politics and society since the inception of the post-monarchy Constitution of 2015. While several new acts came into existence, nationality law still has to see the light of day almost five years after promulgation of the new Constitution. At the center of the whole debate on citizenship lies the naturalization rights of foreign nationals—particularly women, from India. Although the fiasco has a gender tint, with many rightly claiming it to be gender discriminatory, the ethnic dimension to it plays a more pivotal role in the lawmakers’ willingness to compromise, especially because that very dimension is seen to weaken national security. Let’s delve in.

Nepali citizenship is based on the principle of jus sanguinis, which means that a person’s claim to citizenship to Nepal originates from bloodline or descent, largely through father. The first Citizenship Act of Nepal was passed in 1952, after overthrow of the autocratic Rana regime. This Act was “very liberal on the issue of naturalized citizenship and gave citizenship to anyone who had lived in Nepal for at least five years” (Shrestha 2017 in the Report on Citizenship Law: Nepal). Many consider this liberal nationality law to be “the root of the problem which gave Nepali citizenship to Indian-origin migrants who settled in Nepal” (Mulmi 2019 in TKP). Indeed, the then policy of the state to issue citizenship to the “Indian-origin” people does remain at the heart of the current problem of exclusion and statelessness. To rectify the errors of the 1952 Act and to preserve the “Nepaliness” of the populace by restricting the settlers’ easy access to citizenship, the nationality laws that followed were made much stricter.

The 1964 Citizenship Act, during the Panchayat era, placed restrictive provisions on individuals seeking naturalization in Nepal. A continued residence in Nepal for no less than 12 years, “in case of a person other than of Nepali origin,” and the ability to “read and write” in Nepali were two such provisions that were not just regressive but discriminatory to the non-Nepali looking or speaking Madhesis. The 1990 Constitution further codified patriarchal norms in citizenship acquisition in that only men could pass on descent to their children and immediate naturalization rights to their spouse. This faulty gender discriminatory provision, along with the already regressive elements of the nationality law, deprived thousands of people, especially women and people from the Madhesi community, of their citizenship rights for years.

Women and citizenship

In a corrective step to address the problem of statelessness—arising from women’s constitutional inability to independently pass on citizenship to their children and/or their ability to provide their spouse a naturalization right, the post-monarchy government rolled out a somewhat liberalized Citizenship Act in 2006. Although the Act provided citizenship by birth and naturalization to some 2.6 million people, it reinforced patriarchy and prevented a mother alone from passing on descent to her children, contrary to a man’s legal privileges that not only allows him to pass descent to his children independently but also to provide his foreign wife naturalization right after marrying her. The 2015 Constitution, while more progressive on some regards, still has some discriminatory and controversial provisions. For instance, although it provides woman the right to pass on descent to their children, it specifies that if the Nepali woman is married to a foreign citizen, she can only pass on naturalized citizenship to her  children—a major source of the current conflict. Another debate is on the issue of naturalization. While the Constitution remains silent on Nepali women’s right to pass naturalization rights to their spouse, it states that if “a foreign woman married to a Nepali citizen so wishes, she may acquire naturalized citizenship of Nepal as provided for in a Federal law.” It does not specify the years of period that is required for naturalization, which is the major source of the current disagreement.

Even after almost five years of the new Constitution, Nepal still lacks a citizenship act, citing the absence of which district administration officers have turned down thousands of citizenship applications. These legal and administrative loopholes have not only deprived people of their citizenship rights but have effectively made them stateless, stripping them of socio-political and economic rights and facilities. The main reason behind it is a major political disagreement on some provisions—one of which is naturalization.

Madhes-based parties and citizenship

To put it in simple terms, lawmakers have failed to forge consensus on the necessary conditions to issue naturalized citizenship. While the Constitution is silent on the specifics, Madhes-centric lawmakers favor continuing the existing provision of immediate naturalization of foreign women married to Nepali men. While the main opposition Nepali Congress also seems to favor this demand, lawmakers from the ruling Communist Party of Nepal (CPN) have stood firmly against it and seek to delay naturalization by placing certain years of naturalization period. Largely ignored in this tussle and politics of citizenship is the gender narrative, against the gender discriminatory provision—the very source of conflict between the Madhes-centric and ‘nationalist’ lawmakers.

After years of disagreement, though, the State Affairs and Good Governance Committee of the parliament has proposed seven years of naturalization period as well as a provision of “issuing a national identity card to the woman after her marriage so that she is not deprived of social, economic, and cultural rights until she obtains her Nepali citizenship.” Despite some initial sign of support for the committee’s recommendation, Nepali Congress has decided to back down, calling the proposal “long and regressive.” The Nepali Congress is again with the Madhes-based parties now to continue the existing provision—immediate naturalization eligibility of foreign women married to Nepali men, given she has initiated the process to renounce her foreign citizenship.

First of all, it is useful to look into why Madhes-based parties are so rigid on their demands for immediate naturalization rights of foreign women married to Nepali men. Nepal’s open border with India and the existence of a ‘special relationship’ between the two countries is no secret. Neither does it require any complex analysis to understand that there have been cross-border marital relationships for not just decades but centuries. While the open border does facilitate the age-old practice, what really enforces it is strong cultural and linguistic ties between the people of the two bordering regions. It may be convenient for the non-Madhesi people to disavow or discredit non-Nepali languages, cultural practices and festive celebrations of Madhes, and Madhesi costumes and lifestyle, it requires a certain level of respect and openness to truly notice and acknowledge the existing India-Nepal border dynamics and people-to-people relations. Apart from the marital alliances, the socio-economic interdependence of the people at the borders of the two countries is much more nuanced than any Kathmanduite is ever willing to accept. In fact, the very reasons also play important role in the cross-border marriages—the prospect for receiving better or giving lesser dowry being one of them.

Due to the above-mentioned reasons, Madhes does really have a literal roti-beti (bread and daughter) relationship with India. This special relationship has been acknowledged and validated by Nepal’s nationality laws for years. For majority of the Madhesi people, therefore, marrying across the border feels like their natural right that nobody should be able to strip off by placing any restrictive provision. Against this backdrop, Madhesi leaders find themselves to be the sole protectors of and advocates for this special rights of the Madhesi people.

On the contrary, though, the ruling CPN that has risen to power on the back of an anti-India nationalist rhetoric sees the citizenship issue as a solid agenda to benefit off. Framing the citizenship debate from a national security angle, they not only challenge the age-old tradition of Madhes but also question the loyalty of thousands of Madhesi women by preventing women from passing on citizenship by descent to their children. Madhes-centric leaders, however, seem unbothered by the gender-discriminatory provision on citizenship and are only focused on preserving the men’s right to bestow immediate naturalization to their foreign wives. The women group, on the other hand, seems engrossed only by the women’s constitutional inability to pass on descent to their children. This lack of coordination between the two groups—Madhesis and women—arising from their failure to spot a vital connection between the descent and naturalization provisions has made both of their agendas weaker. As a result, a prolonged disagreement on different provisions have continued to exist, giving the State Affairs and Good Governance Committee an illegitimate way to expedite the process.

Looking Forward

The committee’s recommendation of seven years as the naturalization period, based on votes rather than a consensus, is clearly against the spirit of a liberal democracy. Voting has long been seen as a regressive tool to conveniently silence the voices of marginalized and minority groups. On a subject as crucial as nationality and citizenship, the voices of the Madhesi people should not be sidelined by voting. Instead, there should be an open and rigorous dialogue on the matter, which addresses both the national security concerns as well as the dignity and equality of women and Madhesis through a middle-way approach. This middle-way approach may require a constitutional amendment.

The first step would be to amend the Constitution and provide Nepali women equal citizenship rights. They should be allowed an equal right to pass on citizenship by descent to their children, irrespective of their husband’s nationality or presence. By elevating Nepali women from their now second class status, the provision will solve the statelessness of thousands of children whose father are foreign citizens and/or missing. The fear of Nepali lawmakers and leaders of possible “Indianization” of Nepal is disrespectful of Nepali women, particularly the Madhesi women, for it questions their loyalty to the state. The implication that such a provision will encourage Madhesi women to marry Indian men and ‘sell’ Nepali citizenship is unfortunate and pathetic, for the provision simply allows their children to be rightful Nepali citizens if they so want. Any loophole can be mitigated through another gender-equal provision—on naturalization.

The silent constitution

The current Constitution is silent on Nepali women’s right to provide their foreign spouse a naturalization eligibility. To address this fault as well as the ongoing debate on naturalization of foreign women married to Nepali men, the Constitution should be amended to include one gender-neutral provision for naturalization. That gender-neutral provision could well place a naturalization period—the same number of years for both men and women—before a foreign national can apply for Nepali citizenship. The committee’s recommendation of seven years, for instance, could then be codified, and the Madhesi leaders’ concerns of immediate socio-economic rights could be addressed by issuing residency cards or national identity cards; prior to receiving a citizenship, the right to conduct business, attend educational institutions, obtain a residency passport, and travel could all be granted through the same national identity cards. Such a provision will not create statelessness but rather a practical solution to the citizenship problem. Regarding the lack of constitutional provision to allow national identity cards, the Constitution can and should be amended for this.

Some Madhesi leaders claim that ours is a patriarchal society where a woman moves into a man’s house after marriage, therefore, the man should be able to give her a citizenship immediately. This is a silly argument that is based on an unjust premise. Such leaders should understand that our Constitution and laws should not be made to facilitate patriarchy but to uproot it. Therefore, instead of advocating for the rights of patriarchs, they should focus on creating an equitable society, which will automatically solve the problems they seem so passionate to solve.

Other Madhesi leaders claim that because foreign women married to Nepali men give birth to Nepali citizens by descent, they should have an immediate right to be Nepali citizens too. However, this argument, too, is silly and regressive. Such leaders fail to spot the root cause of the problem, which is patriarchy and not the law that upholds it. As mentioned above, a gender-equal Citizenship Act, which allows women the right to pass on citizenship by descent to their children, will leave no ground for such arguments. A child born to a Nepali parent, irrespective of the parent’s gender, will have citizenship by descent. Similarly, a foreign national married to a Nepali citizen, irrespective of the gender, will obtain a naturalized citizenship after a certain number of years. During those years, the foreign national will enjoy social and economic rights in the country, after stated and proven commitment to renounce the foreign citizenship and, therefore, a possession of a Nepali national identity card.

Madhesi leaders’ citizenship demands are legitimate and fair. They do speak for the existing Nepal-India border dynamics and people-to-people experiences. However, they seem to be hitting on the wrong nail. They are so blinded by patriarchy and identity politics that they cannot locate the true genesis of the citizenship problem. Women groups also seem too oblivious to some issues and so drowned in other that they do not see any possibility of working together with the Madhesi leaders. In Nepal’s context, ethnic discrimination against the Madhesis has an interesting link with patriarchy and gender discrimination—and vice versa. Until we see this unfortunate instance of one substantiating the other, we will not be able to move forward in a progressive way, be it the citizenship dispute or any other socio-political discrimination.

Author: Mahesh Kushwaha; @okaymahesh

Image by Mary Pahlke from Pixabay

This article was first published in https://en.setopati.com/view/153204 on June 19, 2020.

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