Second-Class: The Nepal Embassy and Citizenship Inaccuracies

Does Nepal’s new constitution create second-class citizens? Recently the Nepal Embassy caused a stir by rebuking the Indian media for spreading this idea. It released a 500-word statement that was shared rapidly through social media. This article will analyze the Embassy’s endeavour to correct inaccuracies regarding Nepali citizenship.

The official statement begins:

The Embassy of Nepal has taken serious note of recent media coverage in India, particularly in newspaper Op-ed, editorial, talk program on TV, as well as social media networks inaccurately highlighting that the Constitution of Nepal promulgated on 20 September 2015 is not inclusive and that the provision on citizenship has treated a group of Nepali people as so-called “second class” citizen. Such reports and opinions are completely untrue.

Sternly addressing the Indian media, the Embassy diplomatically declines to name names. It may be referring in part to this Indian Express article, written a few days earlier, which mentions “second-class citizens”:

The obsession with descent marks a distinction between rights of citizens who are naturalised and rights of citizens by descent. The former are excluded from an extraordinary range of high offices, effectively making them second-class citizens. But most egregiously, it treats women as second-class citizens — they cannot confer citizenship to their children independently of men; in case they marry foreigners, their children will be barred from high office.

We cannot say which Indian media statements the Embassy is responding to. However, we can analyze the Embassy’s own statement in light of the new constitution, to see what can be learned or even challenged.

The Embassy’s statement goes on to make three main points:

Point 1: Nepal’s new constitution is the best in its history.

Point 2: Nepal’s new constitution is inclusive.

Point 3: No second-class citizens exist under Nepal’s citizenship rules.

Let’s examine how each point is presented.

Point 1: Nepal’s new constitution is the best in its history.

The Embassy highlights the unprecedented nature of the new constitution:

… the most rigorous, transparent, democratic, inclusive and participatory process of eight long years devoted by the two constituent assemblies to the finalisation of the current constitution. … The citizenship-related provisions in the present constitution are, in fact, the most accommodative provisions relating to the citizenship in the constitutional history of Nepal … every word and every sentence of the constitution was discussed, debated, cross-referenced, and improved to the best possible outcome

Indian critics are addressed directly:

It is surprising to see that some intellectuals, professionals, columnists and reporters in India have taken no time in terming the new constitution as imperfect and less inclusive.

It is “surprising” to the Embassy that Indians would say the constitution is “imperfect”. Does this imply that Indians should see the constitution as perfect? This would be an unrealistic expectation, since a constitutional amendment is already moving through Parliament, with a key issue being proportional inclusion. Is the Embassy also surprised that Nepali politicians are treating the constitution as “imperfect” and “less inclusive” than it should be?

The Embassy may be correct in saying this constitution is better than all of the previous ones. I am not prepared to debate that point. Even so, the “best so far” can be a mixed bag. It does not disprove the charge of second-class citizenship.

Point 2: Nepal’s new constitution is inclusive.

The Embassy describes inclusiveness in terms of democratic process:

The new constitution reflects the aspirations of the people of Nepal who have waited for over 65 years in writing their constitution through Constituent Assembly; now it has been possible that the constitution has been adopted by the 601-member strong Constituent Assembly with over 92 percent members taking part in the final adoption process. … the most rigorous, transparent, democratic, inclusive and participatory process…  every word and every sentence of the constitution was discussed, debated, cross-referenced, and improved to the best possible outcome through consensus and compromise after taking it to the people for comments and public hearing.

The consensus described is indeed remarkable. Though it is not beyond controversy, I am not prepared to debate the inclusiveness of the process. However, even the most inclusive political process can yield laws that are not inclusive for the nation’s people.

We can certainly see inclusion and social justice in Nepal’s new constitution. Here’s one example:

(42) Right to social justice: (1) Socially backward women, Dalits, Adibasi, Janajati, Adibasi Janajati, Madhesi, Tharu, minority groups, persons with disability, marginalized groups, Muslim, backward classes, gender and sexually minority groups, youths, peasants, laborers, the oppressed and the citizens of backward regions, and economically poor Khas Arya shall have the right to employment in state structures on the basis of the principle of inclusion.

However, as with Point 1, the charge of second-class citizenship has not been rebutted. But Point 3 will go to the heart of the matter.

Point 3: No second-class citizens exist under Nepal’s citizenship rules.

The Embassy frames the “second-class citizen” issue this way:

The constitution guarantees that every citizen, by descent or naturalisation, shall be equal before law and no person shall be denied the equal protection of law. There is no question of discriminating its own citizen as “second class”.

The Embassy claims there is “no question of discriminating”. Yet I have heard many such questions, from groups inside Nepal and out. There was one question front and center in my mind, and as I read and re-read the Embassy’s statement on citizenship, I was shocked at what I did not find: women. There was no mention of women or gender discrimination. Is the Embassy unaware of this issue? Has the Nepal government not heard the many voices saying that women are treated as second-class citizens under the citizenship rules?

The Embassy suggests that critics may not have read the constitution:

Such divisive and unsubstantiated comments and opinions on the new constitution might have come without checking facts, reading the text of the constitution…

I wholeheartedly agree that there should be more fact-checking in the news media, and more careful reading of the constitution. So let us practice both at the same time, by fact-checking the Embassy’s points against the constitution.

A Glass Ceiling

One of the Embassy’s strongest denials is that there is a glass ceiling:

While referring to the citizenship issue, some have even gone to the extent that the current constitution would bar many Madhesi people of Nepal from holding key positions. This is totally false.

This claim is also the most difficult to reconcile with reality. A Nepali with a father who is not a Nepali citizen is, in fact, barred from key positions. The Embassy even lists those positions earlier in its statement, quoting directly from the constitution:

(289) A person shall have acquired a citizenship by descent to be elected, nominated and appointed as the President, Vice-President, Prime Minister, Chief Justice, Speaker of the Parliament, Chairperson of National Assembly, Head of the Province, Chief Minister, Speaker of Provincial Assembly and chief of security bodies.

A Tale of Two Citizenships

The key term here is “citizenship by descent“, as opposed to “naturalized citizenship“. The former is eligible for any leadership position in Nepal; the latter is restricted by article 289. Many Madhesis are children of cross-border marriages. For those with foreign fathers, citizenship by descent is not available. The constitution states they may instead acquire naturalized citizenship:

(11.5) A person born to a Nepali citizen mother and having his/her domicile in Nepal but whose father is not traced, shall be conferred the Nepali citizenship by descent.

Provided that in case his/her father is found to be a foreigner, the citizenship of such a person shall be converted to naturalized citizenship according to the Federal law.

(11.7) in case of a person born to Nepali woman citizen married to a foreign citizen, he/she may acquire naturalized citizenship of Nepal

But isn’t naturalized citizenship preferable to no citizenship? Yes, but “better than nothing” or “better than it used to be” is not the best standard for a constitution. The fact remains that naturalized citizenship bestows fewer rights than citizenship by descent. It puts a glass ceiling on that person’s leadership in Nepal. (Although a glass ceiling is usually invisible and unacknowledged. This ceiling is written in law.)

Remember, the Embassy stated that it is “totally false” that the constitution would “bar many Madhesi people of Nepal from holding key positions”. How can we possibly reconcile this claim with the text of the constitution?  For Madhesi citizens with foreign fathers, this limitation is very real. How many is “many”? If the prohibition is unjust, “any” is too many.

Perhaps one could say that people are not barred from key positions because they’re Madhesi. Madhesis can be police chiefs and Prime Minister–if they have a Nepali father. In other words, the glass ceiling is not racist against Madhesis; it applies to all Nepalis with foreign fathers. If Madhesis are disproportionately affected by this, that’s just the cost of living near an open border with India (ke garne?).

Why Citizenship by Descent Matters

One could say that 99.99% of Madhesis (or any ethnic group) will never reach one of these top posts in Nepal. So what difference does it make whether their citizenship is naturalized or by descent?

First of all, the Nepal Embassy chose to bring up this specific point (albeit in a contradictory fashion). So it is evidently important.

Secondly, there is an enormous difference between being told “You are unlikely to become Chief Justice” versus “You are not allowed to become Chief Justice”.

Thirdly, the citizenship privileges are bestowed unequally by gender. In this case, your mother’s Nepali citizenship is not enough to compensate for your father’s foreignness. Whereas, if the mother and father roles were reversed, there would be no obstacle; your father’s Nepali citizenship would suffice. Citizenship by descent would be yours.

I am not trying to argue that naturalized citizens should be permitted to attain these high posts. The United States does not permit naturalized citizens to lead the country, while Canada does. It’s neither here nor there. Article 289 is not the issue. The point is this: who should be considered naturalized? If a child is born in Nepal, and lives here continuously with a Nepali mother, how is this naturalization? Why should this child be barred from a high post?

Two Roads Diverged

It appears the only way the child of a cross-border marriage can receive Nepali citizenship by descent is if the parents are citizens by the time the child becomes one:

(11.7) Provided that if his/her father and mother both are the citizen of Nepal at the time of acquisition of the citizenship, he/she, if born in Nepal, may acquire citizenship by descent.

Now suppose a cross-border couple wants to solve this citizenship issue before their child reaches 16, the age of citizenship application. How can the foreign man or woman become a naturalized citizen of Nepal?

For a foreign wife, the constitution gives a clear path:

(11.6) 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.

What about a foreign husband? Surprisingly, there is no matching clause for him. The new constitution does not specify how a foreign husband can become a naturalized citizen. This is the most pertinent clause I could find:

(11.8) Except provided for in this Article, Government of Nepal may confer naturalized citizenship of Nepal according to Federal law.

As a point of reference, the Citizenship Act of 2006 (2063 BS) requires a foreign husband to live in Nepal for 15 years before applying for citizenship:

(5.4) The Government of Nepal may grant naturalized citizenship as prescribed to those foreign citizens …
(d) who have resided in Nepal for a minimum period of 15 years.

However, the 2006 Act has no such requirement for a foreign wife of a Nepali man. She can promptly submit an application for citizenship:

(5.1) A foreign women married to a citizen of Nepal desiring to obtain citizenship of Nepal shall have to submit an application …

So we see that gender disparity in citizenship requirements did not suddenly emerge in the 2015 constitution. It was there in 2006, and also in the Citizenship Act of 1964 (2020 BS). (One difference in older documents: naturalized citizenship was denied to the “insane”.)

Place of Birth Complications

The child of a cross-border marriage could be denied citizenship by descent for another reason:

(11.7) Provided that if his/her father and mother both are the citizen of Nepal at the time of acquisition of the citizenship, he/she, if born in Nepal, may acquire citizenship by descent.

The child must be “born in Nepal” to qualify for citizenship by descent. If, instead, a Nepali woman gives birth outside Nepal, and the father is not a Nepali citizen, the constitution does not provide a way for her child to receive citizenship by descent. It seems this would apply even to women caught in trafficking schemes and impregnated against their will.

Falling Through the Cracks

Risk of statelessness is an enormous challenge in Nepal. A 2014 study found that 4 million people in Nepal lack proof of citizenship. This 4 million does not include children younger than 16. One hopes the new constitution will help more people escape this limbo.

But will it still be possible for a Nepali child not to qualify for citizenship at all? The Embassy’s statement claims that the new constitution will “guarantee that all Nepalese can achieve the citizenship as per the federal laws.” Nevertheless, there appears to be a way to fall through the cracks:

A child born abroad to a Nepali mother and a foreigner father does not get Nepali citizenship if the foreigner father disowns the child or if the father is not identified. Here are some examples of such a child: A. A child born abroad to a Nepali mother as a result of rape. B. child is born abroad to a Nepali mother and a foreigner father, and the Nepali mother is forced to return and reside in Nepal along with the child. Clause 5 of Article 11 of the new constitution has stated that a child born to a Nepali mother inside Nepal and permanently domiciled in Nepal will get citizenship by descent even if the father is unknown. But this clause is silent about the fate of Nepali mother’s foreign-born child, whose father is unknown. So, if the federal law fails to categorically address the concern of the aforementioned child, then s/he will not get a Nepali citizenship. 

What Lies Beneath

There is an unsettling question under the citizenship issue. Perhaps we adults are too polite to ask it. It may come unexpectedly from a teenager filling out a citizenship application:

Why is it worse to have a foreign father than a foreign mother?

Or its inverse:

Why is it better to have a Nepali father than a Nepali mother?

Or more simply:

Why is a woman less trusted than a man?

This is the heart of the “second-class citizen” charge. The Nepal Embassy does not attempt to answer these questions in its statement. It misses the point: the 2015 constitution does not grant citizenship rights equally to men and women. Until and unless this is addressed by future amendments, women without Nepali husbands, and their children, cannot ride first class.

[Update]

Amnesty International released an open letter to the Nepal government:
“Amend Regressive Aspects of the Constitution”

 

References

Nepal Constitution 2015 (2072 BS) – Nepali, English

Nepal Citizenship Act of 2006 (2063 BS) – English

Nepal Citizenship Act of 1964 (2020 BS) – English

Nepal Constitution 1959 (2015 BS) – English

Acquisition of Citizenship Certificate in Nepal – FWLD 2014 Report

http://reliefweb.int/report/nepal/stateless-nepal-how-patriarchal-system-denies-citizenship-millions

http://thehimalayantimes.com/nepal/citizenship-provisions-discriminate-against-women/

http://southasiacheck.org/fact-check/citizenship-provision-in-new-constitution-is-discriminatory-against-women/

Robert Penner

Robert Penner (B.A., Philosophy) has been working in Kathmandu since 2012 as a software engineer. https://twitter.com/robpenner

  • Think Like a Freak

    A noob question – what is the citizenship policy in India for these situations A) if a child is born out of an Indian father and foreigner women B) If its an Indian woman and foreigner father.

    • Robert Penner

      The Indian Citizenship Act of 1955 does not discriminate between men and women with regard to citizenship by descent. According to this clause, only one parent is required to be a citizen of India:

      “(ii) one of whose parents is a citizen of India and the other is not an illegal migrant at the time of his birth, shall be a citizen of India by birth.”

      http://indiancitizenshiponline.nic.in/citizenshipact1.htm