Nepal's unequal Citizenship Law

Just as Nepal came out of its first phase of lockdown on 21 June, the ruling Nepal Communist Party (NCP) tabled a revised Citizenship Bill in the Federal Parliament. The bill was met with sharp public outrage for its unequal treatment of women.

It granted foreign females naturalised citizenship through their Nepali husbands. But there is a catch — they need to have spent a minimum of seven years in Nepal before they become eligible.

Interestingly, the bill has no mention of the provision for foreign men marrying Nepali women, which rules out the possibility of Nepali women extending citizenships to husbands of foreign nationalities.

Nepal is a country with a long discriminatory legacy in its history, and this is nothing new to women. Until a hundred years ago, ‘Sati’ customs required widowed women in some communities and princely aristocracies to immolate themselves on the funeral pyre of the dead husband.

Often, petrified widows who were unwilling to accompany the husband in death were dragged to the pyre and burned alive, while authoritative patriarchs provided witness. Society determined that after the death of husbands, women had nothing to live for.

We have, of course, come a long way from there. Today, the mere mention of this repulsive practice  wrenches our gut and makes us cringe. We cannot comprehend the true psychological impact of the practice on the society, particularly, on women.

The practice of Sati has long been consigned to the deep trenches of history, thanks to its ban in Nepal  100 years ago by erstwhile Rana Prime Minister Chandra Shumsher Rana. The ban was assisted by gradual social change and the State’s proactive intervention through codified decrees.

Widow burning was an extreme form of socially-entrenched and socially-sanctioned, deep-seated prejudice against women in a patriarchal society. But a century later, gender-based discrimination continues to exist not just socially but also in the form of Nepal’s citizenship law and the Constitution. The law still treats women as second-class citizens in how nationality is conferred upon them.

Gender-based Discrimination in the Citizenship Law

The Constitution of Nepal (2015) has discrepancies between articles related to citizenship under Part 3 and those related to equality of rights under Part 3. While the Constitution guarantees equality of rights under Part 3 and Article 18 specifically prohibits gender-based discrimination, the articles related to citizenship have discriminatory provisions that treat women differently from men. Article 11(5) provides for unequal rights for Nepali men and women in conferring citizenship to their children.

Children born to a Nepali father and a foreign-born mother are eligible for citizenship by descent, while those born to a Nepal-born mother and a foreign-born father will be granted naturalized citizenship, with less privileges.

Typically, constitutions of many countries have conditional proviso or ‘notwithstanding’ clauses inserted if an equality right guaranteed by one part of the constitution is to be limited in its other provisions. In the 2015 constitution, there is no such conditional proviso that limits the equality of rights in nationality. Yet, constitutional provisions related to citizenship are discriminatory.

Also, the provisions in the Constitution for granting citizenship to children of Nepali men and women are unequal. The 2015 constitution does allow a Nepali woman to pass on nationality by descent to her children, but only if the father is unknown. If the father of the child is a foreign-born man, the child is only eligible for naturalized citizenship, and not citizenship by descent.

The children of a Nepali man, however, are automatically eligible for citizenship by descent regardless of the nationality of the mother. There are significant differences in the privileges enjoyed by a child with citizenship by descent compared to those of a child with naturalized citizenship. Naturalized citizens are not eligible for key constitutional positions of the State.

Nepal’s Citizenship Act (2006), which is a law made under the then interim Constitution of Nepal 2006, also has a key gender-based discrimination in how nationality is conferred upon foreign-born men and women married to Nepali nationals. Nepali men have an edge over Nepali women in how the law treats their foreign-born spouses in issuing citizenship.

Under this 2006 citizenship law, foreign women married to Nepali men are eligible to apply for Nepali citizenship automatically after marriage, but foreign men married to Nepali women have a waiting period of 15 years. This legislative discrepancy is a clear violation of the constitutional guarantee of equal rights. It is, therefore, unconstitutional.

On 21 June, the parliamentary Committee on State Affairs and Good Governance endorsed the government’s Citizenship Amendment Bill to the Citizenship Act of 2006. It introduced additional regressive measures that immediately sparked off alarm.

Foreign-born women who were eligible under the 2006 Citizenship Act to apply for naturalised citizenship without a waiting period would now be required to linger for seven years before being eligible for citizenship under the proposed amendment bill which does not reduce the waiting period for foreign-born men from 15 years to seven years to at least make the waiting period the same for men and women.

The main opposition political parties have decried the bill’s regressive measure of seven-year waiting period, saying that the new provision unfairly targets the ethnic Madhesi communities that have cross-border matrimonial ties with border communities in India.

An assessment of citizenship law and administrative policies and practices under it shows Nepali women face legal discrimination that limits their ability to live a life of equality and dignity compared to men. Even though Nepali-born single mothers have the legal right to pass on citizenship by descent to their children, administrative hurdles have been reported in the media that make it onerous for single mothers

The Beijing Declaration and international policy context:

Nepal is not the only nation that has gender-based discrimination in citizenship laws. The Global Campaign for Equal Nationality Rights reports that globally 25 countries prevent mothers from conferring their nationality on their children on an equal basis with fathers, and over 50 countries deny women equal nationality rights with men, including conferral of nationality on non-Nepali spouses.

Discriminatory laws deny equal rights to women to acquire citizenship or to confer citizenship to children or spouse. Those laws prevent children from being recognised as a citizen in their mother’s country, even when the child is born in that country. The discriminatory laws deny foreign husbands their spouses’ citizenship, while foreign wives of male citizens are eligible for naturalised citizenship, either immediately after marriage or after a waiting period.

The issue of discriminatory nationality laws unfairly impacting women is not new and has been raised at international fora, especially under the United Nations. However, it appears that discriminatory citizenship issue has yet to receive as high a global profile as other issues affecting women, such as health, education, occupation, wage and employment.

The UN, for example, has organised four World Conferences on Women to promote empowerment and gender equality around the globe (the first one in 1975 in Mexico City, in 1980 in Copenhagen, in 1980 in Nairobi, and in Beijing in 1995), but none of them highlighted the discriminatory citizenship issue.

The 1995 Beijing Conference, which was a major turning point for global agenda for gender equality, released a declaration, the Beijing Declaration and Platform for Action, which was adopted unanimously by 189 countries, including Nepal. The document emphasised the participating governments’ determination to advance the goals of equality for all women, everywhere.

The Beijing Declaration, which is considered the key global policy document on gender equality, recognised that even though the status of women has advanced in some important respects, the progress has been uneven. Inequalities between men and women continue to persist and major obstacles remain, with serious consequences for the wellbeing of all.

The Beijing Declaration also reaffirmed the participating governments’ commitment to equal rights and inherent human dignity of women and men, to the principle enshrined in the Charter of the United Nations, to the Universal Declaration of Human Rights and other international human rights instruments, particularly the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

The Beijing conference was followed by a series of five-year reviews of the implementation of the Beijing Declaration commitments, under the leadership of the UN Commission on the Status of Women (CSW).

Beijing Declaration turned 25 this year. The 25-year review and appraisal scheduled for 9-20 March had to be edited to a single day event due to concerns related to Covid-19. The UN Commission on the Status of Women convened a meeting to adopt the draft political statements and suspended the remainder of the session until further notice.

The UN Division for the Advancement of Women, merged with three other UN entities working around women’s right and empowerment in 2010 to become a new agency. The merger has added a much-needed focus on women, nationality and citizenship in the Women 2000 and Beyond report series. The report has specifically raised the issue of discriminatory citizenship laws, reporting that where parents have different nationalities, laws bestow the nationality of the father upon a child, but deny the child her mother’s nationality.

Although the laws of most countries now entitle a woman to maintain her independent nationality upon marriage, many countries still retain laws that discriminate between women and men in terms of how the nationality is passed on to their children, particularly nationality by descent. Most countries that have provision for nationality by descent confer the nationality of the father on his children, irrespective of the nationality of his spouse.

It is less common for those countries to pass on the nationality of a woman married to a foreigner on her children automatically. In many countries, nationality by descent from the mother is conferred only where she is unmarried or the father is unknown or stateless.

Way forward:

Even though much progress has been achieved internationally in empowering women in public and private life, much work still remains to be done in eliminating gender-based discrimination with regard to citizenship.

In Nepal’s case, the Citizenship Act of 2006 and the Citizenship Act  of 2020 both are inconsistent with the Part 3 of the Constitution that guarantees equality of rights and prohibits gender-based discrimination. These laws are unconstitutional in contravention to equality of rights and, therefore, can be challenged in the country’s constitutional court of law.

In many countries including the US and Canada, unconstitutional laws often fail the constitutional test if challenged in a court, forcing the law-making authorities to replace the provisions that are unconstitutional with new provisions that are constitutionally compliant. In Nepal, it does not appear to be common for unconstitutional laws to be tested in Supreme Court, which is the constitutional court of law.

A UN Women report lays out the scenarios in which inequality in the acquisition and retention of nationality causes particular hardships for spouses of different nationalities. International human rights standards to redress these inequalities exist within the human rights treaties, article 9, in particular of the CEDAW, 1979.

Judicial decisions in a number of countries indicate how these standards can be used to challenge existing inequalities between men and women. However, there are many obstacles to the effective implementation of human rights standards.

While international law recognizes the sovereign States’ discretionary power to enact laws and devise public policies with respect to conferral of citizenship upon individuals, the UN has made recommendations for actions at both international and nation levels. At the national level, the UN recommends legal and administrative reforms in domestic law to ensure international standards that are based on the CEDAW, 1979.

This is an opportunity for Nepal to decide to stand on the right side of history. Does Nepal want to stand with the small community of discriminating countries with unequal rights for women or with the larger global community that has fair citizenship laws based on gender equality? There are adequate constitutional provisions for equality of rights in Nepal’s constitution and the broader international policy framework for eliminating discrimination as part of the Beijing Declaration for Nepal to take progressive, not regressive, legislative action.

The time to make that choice is now, as Parliament will have to decide on the fate of the citizenship amendment bill. Women’s dignity is not a choice, it is their right. There cannot be second thoughts on it.

Ajay Pradhan is Senior Policy Advisor, Treaty and Self-Government Agreement Negotiations, Government of Canada. He lives in Vancouver, Canada.