Citizenship, gender and statelessness in Nepal: Before and after the 2015 Constitution

Citizenship, gender and statelessness in Nepal: Before and after the 2015 Constitution

Sara Shneiderman and Subin Mulmi 

Nepal’s limited definition of citizenship has created a potential population of non-migratory stateless people projected to reach over 5 million soon. Citizenship has therefore become a hotly debated issue as the Himalayan nation emerges from a protracted period of political upheaval.

Citizenship of Nepal in context
A decade-long civil conflict between Maoist and state forces ended in 2006 with a Comprehensive Peace Agreement. After two Constituent Assembly elections in 2008 and 2013, the second Constituent Assembly promulgated a new constitution in September 2015.

This contentious document sparked months of protest and violence (by both state actors and protestors), in which over 50 people lost their lives. Central to the constitutional debate were the constraints placed on the conferral of citizenship by women and naturalised citizens of all genders on their offspring. These constitutional ambiguities, along with difficulties often experienced in obtaining citizenship certificates even in cases where the legal framework should grant such a certificate, have the potential to render significant numbers of people stateless. These dynamics demand attention from national, regional and global activists and policy-makers, and we hope to raise awareness with this article and the chapter in Understanding Statelessness on which it is based.

As a country of nearly 30 million sandwiched between India and China, the Nepali state has always faced challenges in recognising and defining its own citizens. This is in part due to the country’s ethnolinguistic diversity: Nepal is home to over 100 languages and over 60 indigenous nationalities, in addition to a large number of Hindu caste groups. Many erstwhile citizens of Nepal therefore share cultural and linguistic practices with those across borders, both southwards in India and northwards in China’s Tibetan Autonomous Region.

While this diversity is sometimes positively highlighted in nationalist visions of Nepal’s unique identity vis-à-vis its two neighbours, it can also be portrayed as a negative attribute that challenges a homogenous vision of the Nepali nation-state unified around the concepts of the Hindu religion, the Nepali language and the cultural practices of hill communities (rather than plains or mountain communities).

After 30 years of authoritarian monarchical rule under the Panchayat system, the restrictive Citizenship Act of 1964 was retained when Nepal returned to democracy in 1990. This Act stipulated that citizenship by descent could only be acquired by persons whose fathers were Nepali citizens at the time of the child’s birth. For naturalised citizenship, the residency requirement was increased from five to fifteen years and the mandatory requirement of being able to speak the national language was also added. Foreign women married to Nepali men could acquire Nepali citizenship if they provided evidence that they intended to rescind citizenship of the foreign country.

The Second People’s Movement of 2006 led to the adoption of an interim constitution in 2007. This constitution maintained the provisions regarding naturalised citizenship, but citizenship by descent was expanded to allow citizenship to persons born to a father or mother who were Nepali citizens at the time of the child’s birth. However, a prohibitory clause superseded this provision stating that persons born to Nepali mothers and foreign fathers could only acquire a naturalised citizenship certificate. This provision prevented children of single mothers and those whose fathers refused to acknowledge their paternity from obtaining citizenship certificates. The prerequisites for today’s situation of statelessness were therefore created in 2006.

Excluded from citizenship
After the 2012 failure of the first Constituent Assembly to promulgate a constitution, the second Constituent Assembly promulgated the constitution on 20 September 2015. Though more progressive than previous provisions, the 2015 Constitution still discriminates towards women, as certain conditions restrict them from conferring citizenship to their children independently in the same capacity as men. In particular, persons born to Nepali women and foreign fathers can only acquire naturalised citizenship and such citizenships are hardly distributed in Nepal: only 13 persons had obtained such naturalized citizenship certificates as of January, 2017. Also, the new provision in Article 11(5) states that persons born in Nepal to Nepali mothers can acquire citizenship by descent but only if their fathers cannot be traced.

Not only does this provision curtail women’s right to transfer citizenship in equal capacity as men guaranteed by Article 9 of the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW), but due to a lack of clear terminology, it does not resolve the problems for children of single mothers. Considering the fact that there are 898,800 children below the age of 16 living with single mothers in Nepal (National Population and Housing Census of Nepal, 2011) and that a study conducted by Forum for Women, Law and Development (FWLD) projects 5.4 million without citizenship certificates in Nepal, the number of persons at risk of statelessness is huge, increasing every year at a staggering rate.

The government has acknowledged the fact that many persons do not have citizenship certificates in Nepal, yet continues to reject the term ‘stateless’ to describe such individuals. UNHCR received a warning from the Ministry of Home Affairs when it attempted to raise concerns regarding the stateless population of Nepal. Nepal is not a party to the two Statelessness Conventions, but according to the principles of international law, the definition provided by the 1954 Convention Relating to the Status of Stateless Persons goes beyond the concepts of de jure and de facto statelessness to identify several other conditions that determine statelessness.

These newly adopted principles are applicable in Nepal, as the country hosts a significant number of potentially stateless persons of non-migratory nature. This also includes many born within the country’s territorial boundaries who have never applied for citizenship due to lack of access to state services, and/or active discrimination against certain ethno-racial groups.

Challenging statelessness
In the recently published book, Understanding Statelessness, we have included a chapter which reviews historical and current cultural dynamics and case law surrounding this issues. Several court cases brought by individuals affected by discriminatory citizenship provisions have recently seen new developments. The case of Deepti Gurung’s daughter (kept anonymous in the chapter due to the then pending nature of the case) was recently decided in her favour, awarding the right to citizenship on May 22, 2017. We are still awaiting the full text of the decision. Several cases of similar nature have been decided positively by the apex court and the applicants have been able to acquire citizenship certificates, but in practice the decisions have failed to register as precedents, resulting in a situation where each individual must file litigation in the Court in order to obtain citizenship.

This includes the case of Gopal Khanal whose mother is a Nepali citizen but father has abandoned the family and is presumed to have passed away. Despite submitting the father’s citizenship certificate number and a government identity card, the District Administration Office refused to issue citizenship. The case was decided by the Supreme Court on April 4, 2016, where the defendants were ordered to issue a citizenship certificate to the applicant. It took eight months for the decision to be implemented.

On August 29, 2016, six different cases of applicants who sought citizenship through their mother were positively decided on the same day. Consequently, all of them have been able to acquire citizenship certificates. Another case of Diwakar and Prabhakar Chhetri (name changed to Hari Bista and Gorakh Bista in the chapter) has also been decided positively by the Supreme Court on May 12, 2016, but has not been implemented for more than a year despite the Court order to do so. The book chapter explores whether it would be legally correct to term such persons as stateless.

New developments
In the above-mentioned chapter, we also discuss the roles of the international community (especially UNHCR) and national civil society in addressing these problems. Since it was written, two developments suggest new pathways towards improved state attention to the issues of citizenship and statelessness.

First, local level elections were conducted in much of the country for the first time in 20 years in mid-2017. There are now newly empowered elected representatives in local governance who have the duty to issue recommendation letters for citizenship certificates, whereas these documents were previously provided by officials deputed by the central government with little knowledge of local affairs. This may lead to a positive shift in the mindset of service providers, as the new local officials are more accountable to the people and more aware of the practical problems of acquiring citizenship certificates in their home area.

Second, a preliminary amendment draft bill to bring the Nepal Citizenship Act of 2006 in line with the constitution was prepared by the Task Force of the Ministry of Home Affairs and is scheduled to be finalised by the end of this year. This is an opportune time for civil society and international organisations to advocate for progressive provisions in the amendment bill to prevent a future crisis of statelessness in Nepal.

 

Subin Mulmi is an Advocate of Law working at the Forum for Women, Law and Development (FWLD), a non-profit human rights organisation in Nepal, and an independent researcher. He is co-author of several FWLD publications on citizenship, statelessness and gender in Nepal. Sara Shneiderman is Associate Professor in Anthropology and the School of Public Policy & Global Affairs/the Institute of Asian Research at the University of British Columbia. She is author of Rituals of Ethnicity: Thangmi Identities Between Nepal and India (University of Pennsylvania Press, 2015).

Image credit: Subin Mulmi, “Several protests and demonstrations were organised in Kathmandu opposing the proposed Father AND Mother provision in the constitution. This photo shows the ‘2000 rising for citizenship’ event organised on November 15, 2016 in Kathmandu. Deepti Gurung, a single mother of two daughters who had not acquired Nepal’s citizenship can be seen on the right leading the rally. In the event, 2000 signatures were collected and submitted to the Secretariat of the Constituent Assembly demanding amendment of the proposed citizenship provision. Deepti’s case was decided positively by the court in May 2017”

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