Citizens sans a state

The controversial provision on citizenship which requires both parents to be Nepalis for the child to be Nepali will make many stateless. But chances of the provision’s being removed are slim

Sharad Vesawkar is a rare gem that Nepal has been proud to have on its national cricket team since 2004. But until September last year, he was stateless. Because he was born to a Nepali mother and an Indian father in the United Arab Emirates (UAE) 25 years ago, the law did not allow him to receive a Nepali citizenship. For years he tried, always getting assurances that one day the discriminatory provisions would be removed and he would get his papers. But even when the Citizenship Act of 2006 was enacted and a clause stated that any children born to a Nepali father or a Nepali mother would now become a citizen of Nepal by descent, Vesawkar was told to wait. The provision contradicted the existing unequal law that allowed a foreigner married to a Nepali man to become Nepali right away but asked a foreigner married to a Nepali woman to wait until 15 years.

It took the International Cricket Council Twenty20 World Cup qualifier matches to change the government’s mind. With Vesawkar’s trial passport soon to expire and with nothing but victories in cricket lifting Nepalis’ hearts, the Home Ministry decided not to lose one of its star cricketers and deny Nepal the chance to participate in its first World Cup. Three weeks before the start of the tournament, ironically in the UAE, the ministry handed Vesawkar his long-awaited citizenship card. He was 24 years old.

That Vesawkar finally became Nepali, on paper, is an exception —a discriminatory act on the part of the state. His 33-year-old brother, who lives and works in India, still does not have a Nepali citizenship. The rule is to deny 800,000 children like Vesawkar’s brother citizenship through their mothers’ name, to deny that Nepali mothers are as much Nepalis as Nepali fathers. The state now has an opportunity to rectify this, overturn the clause in the new constitution being drafted, which proposes that both parents have to be Nepalis in order for the child to be Nepali. Instead of the proposed requirements—called the ‘and’ clause—Vesawkar and others like him would rather have the requirement be that only one of the parents be Nepali, called the ‘or’ clause. But the chances for the ‘or’ clause’s being instituted are slim.

In May this year, the Constitution Records Study and Determination Committee, responsible for identifying agreements and disagreements of the first Constituent Assembly, forwarded the controversial clause on citizenship as settled to the Constitution Drafting Committee. Fortunately, the Drafting Committee caught the error and sent the provision to the Political Dialogue Consensus Committee (PDCC) to be discussed and resolved. This is where the debate now stands.

Recently, at a TV programme, Home Minister Bamdev Gautam said that the PDCC had already agreed to change the ‘and’ to ‘or’ and allow citizenship through matrilineal descent, as well. But people like Vesawkar, his brother, mothers struggling to confer Nepali identity to their children, activists and women in general are not convinced that their needs will be met. The debate in the CA is currently focussed so much on the number of federal provinces and the form of government in the new constitution that politicians could easily let the restrictive clause on citizenship pass. Most importantly, there is the ill-founded but real fear among politicians, bureaucrats and lawmakers that empowering the women to pass on citizenship to their children will make all foreigners Nepali.

CA member Gagan Thapa says that this fear has roots in racism and distrust in the state machinery. Most of the Chief District Officers, the authorities with the power to grant citizenship, are of hill-origin. These officials are fearful that the children of Madhesi women who marry Indian citizens from across the border will acquire both Indian and Nepali citizenships.

“This is an old fear. Instead of monitoring citizenship forgery and fraud and taking action against those involved, our state is bent on penalising women. Equality should guide the new constitution, not fear,” says Thapa, who was a member of the Committee on Fundamental Rights and Directive Principles in the last CA.

Unfortunately, says Thapa, it is not just hill-born bureaucrats and politicians unwilling to let go of the ‘and’ provision. This fear of threat to nationalism and national security is so acute that even women and Madhesi lawmakers are known to be willing to compromise on gender equality. At first, the women CA members proposed the ‘or’ clause in cases where both the parents were Nepalis. If one of the spouses was a foreigner, they proposed that the foreigner—whether mother or father—wait until 15 years to become a citizen of Nepal. Madhesi lawmakers vehemently opposed the provisions, especially the latter, saying that it was more regressive than the existing one. They and a majority of other lawmakers wanted the ‘and’ clause and laws on foreign spouses’ citizenship to remain as they were—to protect national security. Women lawmakers conceded, deciding to empower women via other means and sub-clauses.

The January 22 deadline for promulgating the new constitution is approaching. The chances of removing the ‘and’ clause and replacing it with ‘or’ is slight, says Thapa. If the provision remains the same, requiring both mothers and fathers to be Nepali for a child to be Nepali, the number of stateless children, living in their own countries as refugees, without the permission to join university at home or abroad or get a job, will rise. In order to avoid that, lawmakers are reportedly mulling over sub-clauses that allow children of raped victims and single mothers to receive citizenship through their mother—a complex, unequal solution to a simple problem, say activists.

Posted on: 2014-12-20, The Kathmandu Post