An unresolved agendaDespite many progressive laws for women in the new constitution, the provision of citizenship is unequal and fails to protect a woman’s natural and inalienable right to her child in conferring nationality to her/him autonomously and unconditionally;
Despite many progressive laws for women in the new constitution, the provision of citizenship is unequal and fails to protect a woman’s natural and inalienable right to her child in conferring nationality to her/him autonomously and unconditionally; and to confer citizenship to her spouse in terms equal to those of a man. This lack of equality exists despite the fact that the constitution has ensured right to equality (Article 18) and women’s equal right to lineage (Article 38 (1)) as fundamental rights.
Nationality by descent
Nepal’s nationality law is largely jus sanguinis, in which nationality is determined by blood/descent, but a Nepali woman still cannot confer citizenship by decent to her child if the father is not a Nepali citizen at the time of acquiring the citizenship of the child, and/or if the child is not born in Nepal. This means, among many other instances, that if a woman bears a child due to sexual exploitation during employment abroad, she is unable to confer full Nepali citizenship to her child. Only naturalised citizenship with limited political rights can be awarded in such cases. A man, on the other hand can award full citizenship to his child independent of the mother’s nationality or child’s place of birth.
The very foundation of Nepal’s unequal law regarding citizenship by descent lies in ancient tradition, which inaccurately grants men the exclusive power to carry forward the family lineage, crushing the natural and inalienable right of motherhood and overlooking the evidence that women and men pass on lineage to their offspring equally. The consequence of such a fallacious and bigoted law is that the state now institutionalises the historical discrimination and control that has been executed over women’s bodies and rights by clans, caste groups and the society for centuries.
According to the United Nations High Commissioner for Refugees (UNHCR), until the adoption of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1979, most countries had unequal nationality laws in terms of gender, and there are still 26 countries which do not give mothers equal rights as fathers to confer nationality to their children—Nepal is one of them.
A look through history
The history of citizenship laws in Nepal shows that the very first Citizenship Act of 1952 was gender-neutral, as it allowed either mother or father to confer citizenship to a child. The Citizenship Act of 1964, which was introduced with the onset of the Panchayat rule (infamous for promoting a constricted form of nationality), removed the rights of women to confer nationality to their children. The law was apparently brought forth to guard Nepal against encroachment from its immediate neighbour, India, as cross border marriages were widely practiced between the bordering villages. It becomes widely evident that the law was founded on the masculinistic dogma that saw a woman as the property of a man without agency of her own, and turned a blind eye to the genetic phenomenon of maternal heredity.
This Act was replaced by the current 2006 Citizenship Act which secured relatively more rights for women, and also protected children against statelessness by giving the mother the right to confer nationality by descent in case the father was unknown. But in doing so, the Act, as well as the current constitution of 2015, have still failed to protect a women’s sovereign rights in the matter.
As per current law, naturalised citizenships basically include citizenship of spouses married to Nepali men, citizenship of children born from Nepali mothers and foreign fathers, among others. The law fails to give women equal rights as men to confer citizenship to her spouse through marriage.
The Madhes-based parties are demanding the amendment of the constitutional clause to enlarge the political rights of people with naturalised citizenship. This demand especially addresses the plight of the wives in the Madhesi community who are residing with their families in Nepal due to cross border marriages and cross cultural ties with India’s bordering villages and towns. The socio-cultural factor of patrilineage and patrilocality still requires women to abandon their place of birth as well as their own nationality for those of their husbands’. To push these women into the margin as second class citizens for the rest of their lives is unjust.
This demand focusing only on naturalised citizenship, however, does not fully address the issue of maternal line of descent. The process of naturalisation is for non-citizens or ‘outsiders’, and to assume that children born of Nepali mothers are ‘outsiders’, is only an extension of the patriarchal mindset. The ultimatum must be for constitutional provision for citizenship by descent through the mother or father—equally.
After the promulgation of the constitution, the issue of citizenship by descent has been abandoned by the political parties, and the small number of advocates for the issue have stopped raising the agenda. Not surprisingly, it failed to become any party’s agenda during the recently concluded elections. None of the newly elected parliamentarian women have spelled out in the media that citizenship is among the pertinent issues that they would address in their new roles.
In the absence of any political will to address this issue, how will this movement move on from here? We have activists like Deepti Gurung who fought hard and won the Supreme Court case to confer citizenship to her two daughters in her name, and she is committed to keep fighting to secure full citizenship right for all women. Subin Mulmi, lawyer and advocate for women’s citizenship rights says the problems created by the Constitution can still be resolved through a progressive lawmaking process, through the amendment of the current Citizenship Act. And since the citizenship issue was a civil society-led agenda where political parties showed allegiance only later, political will can be generated through continued advocacy.
Of course, equality in citizenship law alone is not adequate to wipe out the violence and discrimination against women and girls that is so pervasive and deeply engrained at the cultural level, but it is a powerful legal tool that can change the cultural attitude towards women and girls and ensure their position as an equal sex.
On the occasion of the International Women’s Day this month, Prime Minister KP Sharma Oli issued a long statement highlighting Nepal’s commitment to women’s rights. In the statement, he pointed out that the current government had given high priority to consolidate the existing constitutional and legal provisions for women’s right to equality—including equal right to lineage—into practice. This commitment is promising, but the first step to put it into practice would be to amend the constitution and the citizenship laws to ensure a woman’s inalienable right to provide citizenship by descent to her child without any conditions attached, and to confer citizenship by marriage to her spouse. Equally important is to give full citizenship rights to the thousands of non-Nepali women who are married to Nepali men and are permanently residing in Nepal—especially in the Madhes—with their families, but have been pushed into the margin as second class citizens by the current constitutional provision.
Parajuli is a freelancer who is passionate about women’s rights and social justice