Stateless in New Nepal: Inclusion without Citizenship is Impossible
May 23, 2012
Last week, Nepal’s Constituent Assembly (CA) members drafted citizenship provisions in the country’s long-awaited constitution, causing much consternation and almost guaranteeing that approximately 2.1 million persons out of an estimated population of nearly 30 million will remain stateless.
The specific draft provision that is deeply problematic and regressive refers to how a child may obtain citizenship by descent in the new Nepal: a child would be granted Nepali citizenship if both mother and father prove they are Nepali citizens. In contrast, the current Interim Constitution of Nepal (2007), the Citizenship Act of 2006, and a 2011 Supreme Court directive all provide for citizenship if a child is born to a Nepali mother or a Nepali father.
The “and” provision is likely to increase the number of stateless children in Nepal as it requires the presence of both parents at the time of registration. The absence of either parent would be enough to disqualify the child. It also means that children with one Nepali and one foreign parent would be ineligible for citizenship if the foreign parent cannot (due to conflicting provisions) or does not wish to take on Nepali citizenship.
A compromise suggested by some CA members is that the “and” provision be accompanied by language permitting exceptions to be made in “special situations.” But vague language permitting exceptions abandons the crucial matter of citizenship to bureaucratic discretion and does not provide any assurance that statelessness in Nepal will be reduced or avoided. In fact, even under the relatively liberal provisions of the Interim Constitution, bureaucrats had used their discretion to avoid providing citizenship on the basis of the Nepali mother if the father was identified as a foreigner. Therefore, such cursory appeasement of opposition in the CA cannot credibly be seen as an effective resolution of contending positions on a serious issue.
The debate between “and” and “or” has characterized the current discourse on citizenship with strong and competing notions of gender: proponents of the former favor a stricter law to deter land ownership issues resulting from cross-border marriages of Indians with Nepalis and to preserve what they see as gender equality (both parents’ names will be written on the child’s citizenship certificate); while proponents of the latter advocate for individual identity and value, equal access to rights for all Nepalis, and protection against future generations of stateless persons.
Worryingly, the debate continues with widespread misunderstanding of some critical language, its meaning, and its consequences. Some of those in favor of “and” have expressed fear that if “or” were chosen, Nepal would transform from a patriarchy to a matriarchy. This dangerous conflation of patriarchy with patrilineal, and individual value and independence (or an absence of patriarchy) with matriarchy, should be immediately addressed and clarified in order to ensure a fair, well-informed debate and outcome.
Critical to the citizenship discourse is that it should not be positioned solely as a gender empowering or disempowering debate. Nepal today is a fledgling democracy at a crossroads, and is struggling to achieve a common understanding on the process of nation-building and a national identity. The added complexity of millions of stateless people can pose serious threats to internal peace, stability, and security. Most countries that have faced ethnic and class-based conflicts have struggled with redefining nationality laws and citizenship after conflict. The key has been to naturalize those that are born on your soil (jus soli) and/or whose birth giver (mother or father) are citizens of that country (jus sanguinis). The logic being that if you keep them stateless on your soil, you create a community of people without allegiance – politically, socially, or morally – to your country.
Of course, the fact that current discriminatory provisions negatively affect the rights of minority groups should also be recognized with the understanding that these provisions directly violate a number of Nepal’s international commitments. The proposed requirement that both parents be present for a child to be granted citizenship by descent is of great concern, especially with regard to women. For Nepali women, securing legal proof of citizenship can be difficult, especially when a male family member refuses to assist them (for example, if he does not accept that the child is his) or is simply unavailable to do so because he’s away working in another country like millions of Nepali migrant workers. Denying women proof of citizenship is an expedient way of ensuring that they cannot assert their rights to marital property or inheritance. Furthermore, that Nepali women have been unable to confer citizenship reflects a dependent notion of nationality that is based on and conforms to a patriarchical hegemony. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) clearly states that nations should grant citizenship rights regardless of gender and goes on to state that, “State Parties shall grant women equal rights with men with respect to the nationality of their children.”
Statelessness also has a particularly pernicious impact on children, which often impinges on their rights to access to education, affordable healthcare, and land ownership. As Article 7 of the Convention on the Rights of the Child states, a child “shall have the right from birth […] to acquire a nationality.” And it continues that “State Parties shall ensure the implementation of these rights, in particular where the child would otherwise be stateless.”
International law requires countries to consider applicants’ “genuine and effective links” with a country when evaluating nationality claims, including the social, cultural, and economic ties they have established over time, which is particularly relevant in context of the residents of Nepal’s southern plains, the Terai, and other areas adjoining India. While other countries strive toward citizenship norms based on international best practices, Nepal’s discourse on citizenship is redolent of its antiquated feudal structures: politicians have expressed fear of creating a matriarchical society and of inciting an influx of Indian settlers in the Terai. Worse, they have shown an unwillingness to work together on statelessness and perhaps most dangerously have, across the board, sidelined the citizenship issue as less important than state restructuring.
In addition to its inability to provide satisfactorily for the development and progress of its people over the past five decades, Nepal’s citizenship laws and eligibility provisions over the same period have created a large number of stateless persons who are effectively denied access to formal sector employment opportunities, banking facilities, property transactions, business opportunities, and a modicum of social security. Excluding even larger swathes of the population through regressive provisions in the new constitution will only exacerbate the situation. Today, approximately 2.1 million Nepalis are without citizenship certificates and are effectively stateless. The Election Commission of Nepal indicates that the number could be even higher. A large number of these did not vote in 2008, and unless the restrictive provisions on citizenship are changed, this number will only increase. Under proposed constitutional provisions, the children of these stateless parents could also be excluded from access to citizenship, and as generations unfold Nepal will see sharp increases in an undocumented, uneducated population that could lead to significant and costly political and administrative hurdles in the near future. The denial of citizenship and, therefore, participation in political process for a significant portion of the population will severely undermine democracy in Nepal.
As Nepal looks to finalize a new constitution, it is critical that its leaders examine the issue of citizenship outside of the context of individual power groups. If Nepal’s lawmakers do not lead by example, the entrenched patriarchy and xenophobia of their constituencies will lead the country toward a looming crisis of statelessness and a potential regeneration of political instability and violence.
Pema Abrahams is a program associate and George Varughese is country representative for The Asia Foundation in Nepal. They can be reached at [email protected] and [email protected], respectively. The views and opinions expressed here are those of the individual author and not those of The Asia Foundation.
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