On the recommendation of the Council of Ministers, President Bidhya Devi Bhandari issued an ordinance to amend the Nepal Citizenship Act on Sunday. The ordinance, a part of a continued demand of the Madhesh based parties, comes at a time when Prime Minister K P Sharma Oli is desperately trying to win over the support of Mahanta Thakur-Rajendra Mahato faction of Janata Samajwadi Party Nepal (JSPN). It however neglects the calls of other rights organisations who have demanded equality between a mother and a father in their eligibility to allow their children to become citizens of Nepal.
Communist Party of Nepal-UML, including PM Oli, had amended the bill on the strength of the majority without hearing the concern of Madhes leaders in the past. However, the Cabinet has now included the concern of Madhes leaders in the new ordinance in a bid to impress Thakur-Mahato faction.
So, what is in the Citizenship Ordinance?
According to Minister for Law, Justice and Parliamentary Affairs, Lilanath Shrestha, the government has brought the ordinance on citizenship as per the Constitution of Nepal and the order of the Supreme Court.
The ordinance will allow the children of citizens by birth and children of Nepali mothers to obtain Nepali citizenship. Children of those citizens by birthright who have acquired their citizenship before September 20, 2015, will be able to obtain their citizenship by descent. Earlier, children of citizens were not able to obtain citizenship due to lack of federal law.
Similarly, someone born in Nepal, and whose mother is Nepali citizen, and whose father cannot be identified will also be able to obtain citizenship by descent. However, if the father is a foreign national, the citizenship will be subject to dismissal.
Interim Constitution of Nepal, 2006 allowed the granting of citizenship by birth to those who were born within the borders of Nepal and settled in Nepal till mid-April 1990
Accordingly, the Nepal Citizenship Act, 2006 was amended and those who applied for citizenship before the election of the Constituent Assembly were entitled to citizenship. Provision was also made so that one could apply within two years in case of failure to apply due to special circumstances.
However, those under the age of 16 could not get citizenship and there was no provision on how the children of citizens by birthright could acquire their citizenship.
To address this issue, an amendment was made in Nepali Citizenship Act, paving way for children of those who obtained Nepali citizenship by birthright before September, 2015 to obtain Nepali citizenship by descent.
What difference will it make?
The constitution allowed the children of citizens by birthright to obtain citizenship by descent, but the Citizenship Act was not amended accordingly. According to Law Minister Shrestha, about 35,000 applications for citizenship could not be processed as the law was not enacted as per the provisions of the constitution.
The ordinance will also pave way for a person born to a Nepali citizen mother and residing in Nepal and whose father cannot be identified to obtain the citizenship of descendant.
The Constitution of Nepal had earlier addressed this issue stating, “Nepali citizenship will be granted citizenship on the basis of descent to a person who is born in Nepal and resides in Nepal and the father cannot be identified.”
However, due to missing amendments in Nepali Citizenship Act, people had to file lawsuits to obtain citizenship under this provision, while many did not even make it.
The ordinance has made no amendment regarding the rights of naturalised citizenship.
The constitution states that a foreign woman who marries a Nepali citizen can take the naturalised citizenship of Nepal according to the federal law if she wants.
But earlier when the bill to amend the Citizenship Act was in discussion, the committee passed a proposal by a majority to provide a temporary identity card to a foreign woman who marries a Nepali man with non-political rights and to give her naturalised citizenship only after seven years.
In the case of a child born to a Nepali woman citizen married to a foreigner, it is said that if the child has been residing in Nepal permanently and has not obtained foreign citizenship, s/he can obtain naturalised citizenship in accordance with federal law.
JSPN leader Surendra Jha said that the ordinance on Nepal Citizenship Act will be welcomed by the party. “Every year, about half a million Nepalis fail to obtain citizenship and are deprived of education and employment opportunities. This ordinance will now address one of the issues we were raising for a long time.”