Take 37: The Great Divide
Nepal's citizenship laws continue to view women as second-class citizens
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Citizenship laws and the public debates around the issue have time and again exposed the deeply patriarchal makeup of the Nepali nation-state, and its biases based on gender and ethnicity which have rendered thousands of Nepalis stateless.
On account of national sovereignty and national security, Nepali politicians have blatantly discriminated against Nepalis, especially women.
Reviewing the public debates around the citizenship issue reveal disturbing truths about the fabric of our nation which is stitched together by the threads of misogyny and ultra-nationalism.
However, last week, the President authenticated the citizenship amendment bill which had been languishing in the parliament. This is the same bill that former President Bhandari refused to endorse on the account of it “being disrespectful to women”.
This bill was meant to provide relief to thousands of stateless Nepalis, but the current President’s move has come under considerable criticism for not following due process. And of course, there has been the same old hue and cry by our ever-suspicious ultra-nationalists who are hell-bent on protecting our nation from Fijikaran.
At the time of writing this, the Supreme Court has already ordered a temporary hold on the implementation of the new act.
While trying to keep up with all the new amendments and new acts, one thing that has remained unchanged is Nepal’s laws continue to view women as second-class citizens.
A few days ago, journalist Shova Sharma from Setopati, who has been rigorously covering the citizenship issue, wrote an article about how the citizenship act, despite offering relief to many, was still discriminatory towards women.
With permission from the journalist and Setopati, we are publishing a translation of her piece published on 1 June 2023. This piece outlines how the citizenship act - which was authenticated but is now under hold by the order of the Supreme Court - discriminates against women.
We have made some edits and additions for the sake of brevity and clarity.
By Shova Sharma, Setopati
- June 1, 2023
President Ramchandra Poudel on Wednesday authenticated the bill to amend the Citizenship Act clearing legal hurdles for NRNs (Non-resident Nepalis) and for thousands of stateless individuals who can now apply for citizenship by birth. [Read more about statelessness in Nepal in this piece by The Kathmandu Post]
However, despite the progress made in providing relief to thousands of stateless Nepalis, the Act continues to treat women as second-class citizens.
Under the new Citizenship Act, there are three clear areas where women are denied from having the same rights as men.
Citizenship by Descent
While Nepali men can pass on citizenship to their children unconditionally, four conditions have been imposed on women that they must meet before they can pass on citizenship to their children.
They must have been born in Nepal.
They must be residing in Nepal.
The father of the child is either ‘unidentified’ or ‘untraceable’.
They must officially declare that the father is ‘unidentified’ or ‘untraceable’.
Men do not have to meet any of the conditions to pass on their citizenship to their children; just a show of their citizenship card is enough.
But, when women try to do the same, the first thing they they have to face is questions about the identity of the father. If the identity of the father is known, they are required to reveal it, and if not, they need to explain why that is the case. [This is not only extremely insulting and humiliating to women, but it is also a way to forcefully impose an ideal of the “moral” and “virtuous” woman who is dependent on the man, and is thus denied from exercising her full rights as a citizen.]
This provision fails to recognize and treat women as independent citizens like their male counterparts, and furthermore, it goes against the spirit of the constitution which guarantees equal rights to all citizens.
But, lest we forget, this discriminatory act is derived from the citizenship provisions in the constitution which were already discriminatory to begin with.
Article 11 (5) of the constitution on citizenship through the mother reads, “a person who is born in Nepal to a woman who is a citizen of Nepal and has resided in Nepal and whose father is unidentified shall receive citizenship by descent.” [This shows that women have to declare that the father cannot be identified for her child to receive citizenship by descent.]
The law is so cruel towards women that if the woman’s self-declaration is found to be false, she can face punitive action. Furthermore, if the father who was declared as unidentified when the citizenship was issued to the child, happens to appear at some point in the future to claim the child as his own and provide proof of the same, the mother of the child can face one to three years in jail, or be fined one lakh to three lakhs, or be punished with both. [Here she is punished for having ‘lied’ in her declaration as the father being unidentified or untraceable.]
Citizenship for the Spouse
The second major area of discrimination in the Citizenship Act affects Nepali women married to non-Nepali men. The law is an outright rejection and exclusion of their foreign spouses.
If a Nepali woman is married to a foreign man and he wants to live permanently in Nepal, there is no way for him to get citizenship. Even if he is willing to give up his own citizenship and wants to live in Nepal abiding by the country’s laws, he will still not be able to acquire a naturalised citizenship.
Whereas, a foreign woman married to a Nepali man can easily receive a naturalised citizenship. And they don’t even have to wait for that long. She can receive the citizenship as early as a day after the wedding, and as soon as she begins the process of giving up her citizenship of her country of origin. This provision is a blatant discrimination between women and men. Under the law, children of the same parents are treated differently simply because of their gender - if the brother marries a non-Nepali, she is able to get naturalised citizenship without much hassle and she isn’t required to maintain residency in Nepal, but if the sister marries a non-Nepali, the husband will never be eligible for naturalised citizenship even if he wants to reside in Nepal permanently.
[The different amendments put forward so far related to citizenship rights for Nepalis married to non-Nepali spouses become more complicated and reveal a whole new layer of ethno-nationalist biases specific to Madhesi women. To know more, read this excellent piece by Kalpana Jha, Sangita Thebe Limbu and Abha Lal.]
Citizenship by Descent or Naturalised Citizenship?
The third major area where the law treats men and women differently is in the type of citizenship that can be handed down.
A child born to a Nepali woman and a foreign man can only receive naturalised citizenship. The law states that if the child has not acquired citizenship from their father’s side, they are eligible to receive Nepali citizenship, But the child can only be granted the status of a naturalised citizen. This is not the case for children born to Nepali men with a non-Nepali spouse. They will automatically receive citizenship by descent.
In Nepal, there are certain restrictions placed on naturalised citizens which withhold them from fully participating in the public sphere.
Naturalised citizens are not allowed to hold the public offices of the president, the vice president, the prime minister, the chief justice, and the speaker of the house. This means that children of Nepali women married to foreign men will never be able to reach the highest offices in Nepal.
The discrimination against women runs so deep that a woman’s ability to pass down citizenship to her children and the type of citizenship they can acquire is directly linked to and dependent on the identity of the father. But this isn’t the case for Nepali men.
UML leader Binda Pandey, commenting on Nepal’s citizenship provisions said that the law clearly upholds men as first-class and renders women as second-class citizens:
“We weren’t able to get rid of the discriminatory provisions in the constitution. And now the law is simply a continuation of the same. Our constitutional and legal provisions here uphold that men are first-class and women are second-class citizens”.
The citizenship provisions in the present constitution and the law are regressive compared to the interim constitution and the laws formulated in 2006.
The 2006 Citizenship Act had provisions that made it easy to acquire citizenship either through the father’s or mother’s name.
The law did not require Nepali women to fulfill some of the conditions present in the current provision to pass on citizenship independently to their children. But despite the more progressive provisions guaranteed by the law, the leadership at the Home Ministry, the elected leaders, and the low-ranking government bureaucrats, have repeatedly refused to implement the law in the past.
It was only through legal challenges and through the intervention of the Supreme Court, that some women were able to pass on citizenship to their children. But after the new constitution was passed, the government bodies began to even ignore the court’s orders, making it extremely difficult for women to confer citizenship to their children.
And when it comes to the children of women with foreign spouses, there have never been any provisions introduced to open up the way for women to pass on citizenship by descent to their children.
If you would like to read more about the discriminatory provisions in the citizenship laws, here are some pieces:
नागरिकता संशोधन विधेयक- पुरुष पहिलो दर्जाका, महिला दोस्रो by Shova Sharma
मैले देखेका महिला र पुरुष सांसद by Shova Sharma
What mainstream feminists are getting wrong about the citizenship debate by Kalpana Jha, Sangita Thebe Limbu and Abha Lal
Bhrikuti, as always, such a great read. It saddens me to witness the male-first citizenship rulings. During my stay in Nepal and during the conversation with women (& young girls), they all expressed a fear of marriage mixed with a tacit acceptance of having to do it.