Seven years after the Supreme Court issued a landmark verdict in the Sabina Damai vs Government of Nepal case, allowing children to obtain citizenship in the name of the mother alone, the 2015 Constitution and a draft bill in Parliament have set the clock back.
Activists say the 2015 Constitution which was drafted, debated and promulgated mainly by men, denies equal citizenship rights to women, and the draft bill further entrenches Nepal’s patriarchal culture. The three main objectionable provisions are:
a) A foreign woman married to a Nepali man can get naturalised citizenship right away, and is given six months to furnish proof that she has renounced her original citizenship. But if a foreign man marries a Nepali woman, he will not get Nepali citizenship. He can apply for naturalised citizenship after residing in Nepal continuously for 15 years. But his marriage to a Nepali woman will not count, and he has to apply for naturalised citizenship just like any other foreigner.
b) Children of a Nepali man married to a foreign woman are entitled to citizenship by descent. But the children of a Nepali woman married to a foreign man will get naturalised citizenship, and that too only after producing proof they aren’t already citizens of their father’s country. They can get citizenship by descent only if the father has naturalised Nepali citizenship.
c) Children above 18 can easily get citizenship if their fathers are Nepali, but it is much more difficult if they only have their mother’s citizenship. If the father is unknown, is estranged, or refuses to accept them, their mother will have to ‘declare’ to authorities that she does not know who the father of the child is.
“The constitution and the citizenship bill perpetuate the male notion that their semen is superior, and women are not equal to men,” says former Supreme Court Justice Balram KC.
KC was one of two justices who ordered the Dolakha district administration in 2011 to grant citizenship to Sabina Damai through her mother’s name. Sabina’s father was not known, and Dolakha’s Chief District Officer had refused to grant her citizenship unless her father’s identity was established.
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The Supreme Court not only directed the Dolakha administration to grant Sabina citizenship without asking about her father, it also ruled that women would henceforth be able to pass on citizenship to their children even without their husbands.
“That verdict was not just for Sabina Damai, but for every person whose father is unknown and who wants citizenship through his or her mother’s name,” KC says.
Barring a few exceptions, male-dominated district administration offices have defied the precedent set by Damai vs GoN and continue to deny citizenship to offspring of single mothers.
In 2013, Shanti Nagarkoti filed a petition at Supreme Court after she was denied citizenship by the Kathmandu district administration unless she provided her father’s name. Two years later, the Supreme Court ordered the Kathmandu administration to grant her citizenship despite her father being unknown.
Thanks to the judiciary, a handful of other mothers have been successful in getting citizenship for their children in their name only, but it is not yet the norm. Only the most determined mothers and those willing to fight a long legal case have managed to get Nepali citizenship for their children.
When the Constituent Assembly passed the new Constitution in September 2015, fewer than 30% of the 601 member House were female, and none of them were in decisive positions. Their voices were easily suppressed by a cartel of male leaders from the hill upper caste community.
As a result, the Constitution, which is progressive in many ways, embarrasses even its staunchest supporters. Former top United Nations official Kul Gautam has always defended the statute, but he too believes it discriminates against women. At a conference on Nepal’s constitution in Kathmandu this week, he admitted that gender discrimination in citizenship is the only fundamental flaw in the charter.
But Parliament is unlikely to amend the Constitution and the draft Citizenship Bill to grant equal rights to women. When women MPs demanded equal citizenship rights in the Parliament this week, Home Minister Ram Bahadur Thapa fell back on the nationalist argument that citizenship was a matter of national security.
Nepal’s main parties have always held the view that granting equal citizenship to women will encourage more foreign men, especially Indians, to marry Nepali women. They have spread the fear that Nepal will become “another Fiji”, where Melanesians were outnumbered by descendants of migrants from India due to a liberal citizenship law.
Krishna Bhakta Pokharel, a ruling party MP who was a member of the Constitution drafting committee, says: “Our constitution is shaped by the idea that women go to live in their husband’s homes after marriage, and not vice versa. This is the reality, and we cannot ignore it while drafting the citizenship law.”
NCP MP Binda Pande says the citizenship provisions in the Constitution not just violate international treaties to which Nepal is signatory, but also contradict the statute’s guiding principles and election manifestos of all political parties.
The Constitution stipulates that a person whose father ‘or’ (not ‘and’) mother is a Nepali citizen at birth is entitled to citizenship, but this provision is rendered ineffective by other clauses that bar citizenship for offspring of Nepali women married to foreign men.
“All Nepali citizens should be able to pass on citizenship to their children irrespective of their gender,” she says. “It should be as simple as this. Why do we pretend to grant equal citizenship rights through one clause, only to take it back by enacting many other clauses?”
Women have slammed discriminatory citizenship provisions by writing articles and speaking out in public. Some have added Dosro Darjaki (Second Class) before their names on their Twitter handles.
Says Election Commissioner Ila Sharma: “This is my way of non-violently protesting against a patriarchal state that wants to treat us as unequal citizens.”