The House of Representatives is set to pass an amendment bill to the Citizenship Act of 2014 after President Bidya Devi Bhandari earlier this week returned it for a review along with a 15-point message.
This is the first time the President has sent back a bill passed by both Houses since Nepal adopted a federal Constitution in 2015. She was using a constitutional provision that the President can ratify a bill passed by both Houses of Parliament within 15 days, or send it back for reconsideration.
As per Article 113(3) of the Constitution, the President can send bills except one concerning financial matters submitted for ratification to the respective Houses for review.
“The Constitution has given the President the authority,” says constitutional expert Bipin Adhikari. “Now Parliament must seriously deliberate on the 15-points sent forward by the President.”
In her nine-page message, the President raised concerns over the provision of self-declaration, the right to privacy, and dignity of mothers. The document also says that there needs to be a historical overview of the drafting processes of the citizenship law, and has requested a detailed study before amending the law.
President Bhandari also suggested discussing the report presented by the State Affairs Committee of Parliament before passing the amendment, pointing out the need for a long-term solution to the controversial issue of naturalised citizenship.
According to Article 304 of the Constitution, the acts and regulations that are in conflict with the current Constitution became invalid after 18 September 2016. But it was not until this year that the government started working on the amendment to the Nepal Citizenship Act 2014.
Seven years after the promulgation of the Constitution, Minister of Home Affairs Bal Krishna Khand registered the draft Bill in Parliament and it was passed by both Houses less than a month later. The debate on a serious issue like citizenship did not even last three weeks, and House Speaker Agni Sapkota did not think it necessary to send the bill to the parliamentary committee for discussion.
Experts say Speaker Sapkota forgot his constitutional role and simply followed the instructions of his bosses in the Maoist party and other leaders of the ruling coalition. Earlier this year, Sapkota had not allowed the US funded Millennium Challenge Corporation (MCC) compact to be presented in the House until Maoist Chair Pushpa Kamal Dahal gave the go-ahead. The Citizenship Bill too seems to have been passed after he got his party’s green light.
“It was wrong to fast track a subject like citizenship,” says Adhikari. “If it had been sent to the parliamentary committee there would have been enough discussion. It isn’t something that should have been passed without proper discussion.”
According to Adhikari, the President returned the Bill after consultations with the Prime Minister, providing an opportunity for the much-needed discussion. The matter is complicated because the coalition partners see President Bhandari as being close to former prime minister K P Oli of the opposition UML.
The amendment itself has become a polarising issue. Although thousands of Nepalis, mostly living in the Tarai, will finally get their citizenship papers, critics have said the coalition has tried to appease the Tarai vote bank ahead of elections. But the amendment perpetuates gender discrimination by making it more difficult for Nepalis to get citizenship in the name of their mothers, whereas it is easy to get one in the name of their fathers.
“We can’t say that the President has taken a position. She has not issued an order, she has sent the legislative branch a reminder. We cannot compromise on national issues for the sake of speeding things up,” Adhikari says.
The Office of the President says discussions were held with Prime Minister Deuba, Law Minister Govinda Bandi, the Attorney General, leaders of the ruling party, as well as other stakeholders.
“As far as we know, the President also consulted people without citizenship, experts as well as both the supporters and opponents of the Bill,” says Tika Dhakal, the President’s communication adviser.
Senior advocate Satish Krishna Kharel says that although the draft Citizenship Bill is progressive compared to the past because it addresses the problems of non-resident Nepalis to a certain extent. “However, the bill is flawed in terms of gender equality,” he adds.
The Bill sent back to Parliament for reconsideration states that children born to a Nepali mother whose father cannot be identified can get citizenship by descent only when a self-declaration is made that the father ‘is not known’. Experts say that this clause holds stigma and is an insult to mothers.
Likewise, whereas a foreign woman married to a Nepali man will be granted citizenship immediately, there is no provision to grant citizenship to foreign men living in Nepal after marrying a Nepali woman.
Advocate Meera Dhungana says that naturalised citizenship should be given to foreign men married to Nepali women even if it means having criteria such as minimum period of residence in Nepal and renouncing the citizenship of the country of origin.
“The bill should be ratified only after removing those gender discriminatory sections,” she says.
It also seems that some leaders of the ruling party are trying to make the retraction of the bill a political matter, and started a media trial to send it for re-verification as it is without addressing President Bhandari’s concerns.
Analysts however say that the President’s decision is an opportunity to improve on the draft Bill as it will help to address its shortcomings.
Former Speaker Daman Nath Dhungana says that ratifying the Bill as it is could backfire on the ruling coalition. He suggests having proper discussions over the points sent by the President, and adds: “Trying to send a Bill without addressing the President’s 15 points of concern is against the dignity of both the President and Parliament.”