Whose nation is it? CITIZENSHIP & CONSTITUTIONS of NEPAL

Whose nation is it?

The geographic location doesn’t allow Nepal the luxury to be very democratic when it comes to citizenship.

CITIZENSHIP & CONSTITUTION

BY SIGDEL, K. R. 

THE KATHMANDU POST, MARCH 24:

Despite sustained efforts to make Nepal’s citizenship law more scientific and less susceptible to manipulations, there is no dearth of instances of misuses of the legal provisions that govern citizenship.

A study of the citizenship-related anomalies in the past few years shows increasing numbers of non-Nepalis getting Nepali citizenship and misusing them.

The Home Ministry records show that, it has scrapped increasing numbers of citizenships since 1999. Though the government has not been able to initiate action on all the recorded cases due to “legal and procedural difficulties”, it has scrapped about 280 fraudulent citizenships since 1999.

“Members of international criminal gangs remain at the forefront in the abuses while equally disturbing is the fact that many, who have received citizenship in recent years, have questionable Nepali identity,” said a senior Home Ministry official. “The government has busted a few (criminal) rackets involved in facilitating citizenships, but misuse has continued unabated.”

For instance, in a recent revelation, Babbu Srivastab, the person behind media entrepreneur Jamim Shah’s murder, is found to have received Nepali citizenship. “This is just one example. I guess, there are thousands, both criminal and non-criminal, who have got Nepali citizenship despite being disqualified.” (see list)

And interesting is the fact that all this is happening while the constitutions over the past 45 years appear to have gradually tightened their screws on citizenship provisions.

When Nepal adopted its constitution in 1962, any child with either a Nepali father or a Nepali mother was considered eligible to apply for a Nepali citizenship by descent. This was considered “too liberal” to be able to prevent misuse and some stricter conditions were added in the successive legislations, including the Constitution of 1990. The 1990 Constitution limited the eligibility criteria and said only those children who were fathered by a Nepali citizen could apply for the citizenship. The new constitution, says Advocate Sabin Shrestha, is making it even “tougher”, if the recently finalised draft of the Constituent Assembly (CA) thematic committee on Fundamental Rights is anything to go by.

Constitution of 1962	Constitution of 1990	Interim Constitution of 2007	CA Preliminary Draft
A person shall acquire the citizenship by birth if his/her father or mother was born in Nepal	A person shall acquire the citizenship by descent if at the time of birth his/her father was a Nepali citizen	A person shall acquire the citizenship by descent if at the time of birth his/her father or mother was a Nepali citizen	Citizenship by descent if the person’s father and mother were Nepali citizens when s/he was born
Citizenship by birth if the child was born before the commencement of this statute	NA	Any person born in Nepal before April 14, 1990 shall acquire the citizenship by birth	NA
NA	Any child found inside Nepal shall be deemed Nepali citizen until and unless his/her father is unknown	Child found in Nepal shall be deemed Nepali citizen until his/her father or mother is unknown	Any child found inside Nepal shall be deemed Nepali citizen until his/her father or mother is unknown
Any foreign woman married to a Nepali can acquire Nepali citizenship after giving up her foreign citizenship	Foreign woman married to a Nepali can get Nepali citizenship after starting process to give up foreign citizenship	Any foreign woman married to a Nepali can acquire Nepali citizenship if she wishes	Any foreign women married to a Nepali can acquire Nepali citizenship after 15-yr legal residency and giving up foreign citizenship

The draft states that for a child to be eligible for citizenship by descent both his/her father and mother must be Nepali. Much tougher is the provision on naturalised citizenship: while the constitution of 1962 and 1990 state that any foreign woman who is married to a Nepali national will be eligible to apply for citizenship, the draft says that foreigners married to a Nepali will have to renounce their foreign citizenship and prove 15 years of legal residency in Nepal.

Some experts say the new provision on citizenship is “unnecessarily tough” in that it has created hurdles, which could deprive genuine candidates from the citizenship rights. “There is no country in the world, except Myanmar, which have such a provision,” says Professor Krishna Khanal, an expert on constitution.

Experts argue that making constitutional provisions on citizenship tougher would not help stop non-Nepalis from getting Nepali citizenship. The constitution, they say, should be as democratic as possible and it is the government’s job to see whether the provision is misused.

To many easing the criteria for citizenship would be detrimental because the geographic location doesn’t allow Nepal the luxury to be very democratic when it comes to citizenship.

“The citizenship issue should be handled with utmost care,” says Balkrishna Neupane, an advocate who fought and own four legal battles against post-1990 governments’ “unwise” decisions on citizenship issues. “An influx of just one percent of the neighbouring country’s population would increase Nepal’s population by almost double, whereas even if the entire Nepali population is added to the neighbour’s population, that would not make any difference.”

Neupane stresses that the new constitution should not ignore the problems that have emerged from the Interim Constitution’s guarantee that those “born before April 15, 1990 shall acquire Nepali citizenship by birth”. This very provision, says Neupane, is one of the loopholes from which an increasing number of non-Nepalis, including foreign criminals, are getting Nepali citizenship.

Binda Pandey, Chairperson of the CA committee on fundamental rights concedes that the draft has drawn criticism of all kinds. But she also says there are rooms for improvements, too. “We have incorporated all differing views as notes of dissent, which are yet to be resolved” said Pandey.

However, the fear still looms that in the name of meeting the CA deadline, the CA could end up endorsing a constitution with flawed provisions on citizenship.

Notorious criminals who misused Nepali citizenship

Rohit Barma	Indian murder of Mirja Dil Sad Beg
Babbu Srivastab	Indian accomplice in Jamim Shah Murder
Dr. Amit Kumar	The kidney racket kingpin tried but arrested
Ashraaf Ali	Pakistani arms smuggler
Subraata Bayen	Bangladeshi arms smuggler

Citizenships distributed as of June 14, 2009

Citizenship by descent:	16,903,346
Married naturalised:	296,576
Citizenship by birth:	241,499
By Distribution Team:	528
From mother’s name:	128
Honorary (Edmund Hilary):	1
Fraud reports:	not disclosed
Scrapped:	280
Total valid:	17,442,078

Pending Citizenship Applications

Foreign father and Nepali mother:	67
Foreign father and foreign mother:	65
Nepali citizenships renounced:	229
Citizenship application by birth:	995
Total Pending	1,356

[For original post See April 2, 2010 THE KATHMANDU POST, MARCH 24 at http://www.ekantipur.com/the-kathmandu-post/2010/04/02/Features/Whose-nation-is-it/206809/]