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Constitution Design » Questions for constitution makers in Nepal
Citizens
A country is its people. Constitutions very often set out the basic principles of citizenship. In some countries the determining factor is place of birth and in some it is parentage. In some both are required. The Constitution of South Africa does not define citizenship.
There have been a number of problems about citizenship in Nepal, some of which have been dealt with, at least to some extent, under the Interim Constitution.
- The 1990 Constitution discriminated against women. It said:
Article 9 Acquisition and Termination of Citizenship after the Commencement of the Constitution
(1) A person who is born after the commencement of this Constitution and whose father is a citizen of Nepal at the birth of the child shall be a citizen of Nepal by descent.
(2) Every child who is found within the Kingdom of Nepal and the whereabouts of whose parents are not known shall, until the father of the child is traced, be deemed to be a citizen of Nepal by descent.
(5) Notwithstanding anything contained in clause (4), a woman of foreign nationality who has a matrimonial relationship with a Nepalese citizen and who has initiated proceedings for renunciation of her foreign citizenship,- may acquire the citizenship of Nepal.
You will see that this means that a woman cannot pass Nepali citizenship to her child, while a man can (clause (1)). And there is no provision for a foreign man who marries a Nepali woman to become Nepali (clause (5)).
The Interim Constitution is better - though still has some discrimination. It says:
8. Citizenship at the Commencement of the Constitution:
(2) At the commencement of this Constitution, the following persons who have their domicile in Nepal shall be deemed to be citizens of Nepal by descent:
(b) any person whose father or mother happened to be a citizen of Nepal at the birth of such person.
- This still does not provide for a foreign man to become a citizen because he marries a Nepali woman.
- And there is another problem -which may not have been intended: this Article is about people being citizens at the time the constitution comes into force. On the face of it, it does not apply to the future - to children born after January 15 2007. A new Constitution should make this clearer.
- In fact a new Citizenship Law came into force in 2006. This is on the lines of the Interim Constitution. You can read it here in English
- Another problem about the Interim Constitution is the requirement that a person be domiciled in Nepal. This was not required in the 1990 Constitution. If this is applied some people might be stateless because they are born in another country that does not give them citizenship because their parents do not belong there.
- The position of children is also not entirely satisfactory. They do not get a citizenship certificate until they are 16. The Article in the Interim Constitution on the Rights of the Child (Article 23) says nothing about the right to a nationality - although the Convention of the Rights of the Child (to which Nepal is a party) says:
Article 7
1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents.
The Constitution of South Africa says:
28. (1) Every child has the right -
(a) to a name and a nationality from birth
- Another issue is that of refugees. There are a number of refugee communities in Nepal, especially Tibetans and Bhutanese. It is very difficult for them to get Nepali nationality. See a comment - especially about Bhutanese refugees - on this by Human Rights Watch and also Stateless Refugee Children from Bhutan Living in Nepal Testimony of Bill Frelick to a Joint Briefing for the Congressional Children's Caucus and the Congressional Human Rights Caucus on the Status of Stateless Children, and from the UN High Commissioner for Refugees State of the World's Refugees 2006.
- The Interim Constitution did improve the situation of some people who had long waited for citizenship certificates:
11. Citizenship Team to be Assigned:
The Government of Nepal may assign a Citizenship Distribution Task Force to grant citizenship to persons eligible to acquire citizenship as provided for in existing laws.
The procedure for this was set out in the Citizenship Act 2006 - click for the Nepali or the English version.
- Dual nationality: it is not possible for a Nepali to hold another citizenship as well. Many countries do now recognise the possibility of people have more than one nationality. The UK has always allowed dual nationality. Until recently the USA was firmly against it, but in recent years the law has been relaxed. Canada has recognised dual nationality since 1977.
Other sources
There is a page on Wikipedia on Nepal Nationality - particularly concerned with dual nationality and the position of Nepalis in Hong Kong, and the UK.
You will find some discussion of nationality issues especially dual nationality on the website of the Non-Resident Nepali Association.
There is a Compendium of International and African Standards on Freedom of Movement and Recognition of Citizenship Rights (with an African bias as is obvious) on the AfriMAP website (an Open Society project)
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