The new Constitution of Nepal was adopted and entered into force in September 2015. The Constitutional provisions related to citizenship are an improvement on the gender discriminatory provisions contained within the previous Interim Constitution. However, there remains overt discrimination based on the parents’ gender with direct implications for children’s access to nationality as well as other issues of concern, including ambiguity, a lack of clarity, and internal contradictions within the Constitutional text.
On a positive note, the Constitution6 contains the following provisions, which if implemented, will enhance gender equality in relation to the transfer and acquisition of nationality, enhancing the child’s rights under Article 7 CRC:
Article 18 (1) of the Constitution ensures that “all citizens shall be equal before the law. No person shall be denied the equal protection of the law”. Furthermore, Article’s 18(2) and (3) provide comprehensive protection from discrimination for all citizens, both in terms of application of general laws and prohibition of discrimination by the state. The non-exhaustive list of protected characteristics in these provisions include sex, race, caste, economic condition and language or geographical region, characteristics that historically have been the basis of discrimination against the parents and guardians of children in Nepal, resulting in the violation of the child’s rights under Article 7 CRC.
Article 11(2)(a) of the Constitution states that “any person whose father or mother was a citizen of Nepal at the birth of such a person” shall “be deemed to be citizens of Nepal by descent”.
Article 11 (4) of the Constitution states that “every child found in Nepal whereabouts of whose paternity and maternity is not known shall, until the mother or father is traced, be deemed a citizen of Nepal by descent”.
Article 51(b)(3) of the Constitution obligates the state to pursue policies related to “implementing international treaties and agreements to which Nepal is a state party”.
However, as with the Interim Constitution, the new Constitution also contains ambiguous and internally self-contradictory provisions. Accordingly:
Article 11 (5) of the Constitution states that “a person born to a Nepali citizen mother and having his/her domicile in Nepal but whose father is not traced, shall be conferred the Nepali citizenship by descent. Provided that in case his/her father is found to be a foreigner, the citizenship of such a person shall be converted to naturalized citizenship according to the Federal law.”
According to Article 11 (7) of the Constitution: “notwithstanding anything contained elsewhere in this Article, in case of a person born to Nepali woman citizen married to a foreign citizen, he/she may acquire naturalized citizenship of Nepal as provided for by a Federal law if he/she is having the permanent domicile in Nepal and he/she has not acquired citizenship of the foreign country.”
Consequently, the Constitution, while on the one hand entitling Nepali citizenship to all persons whose father OR mother is a Nepali citizen and to foundlings, on the other hand restricts children of a Nepali citizen mother and foreign father to the lower class of ‘naturalised citizenship’ as opposed to citizenship by descent. Furthermore, while the new Constitution imposes no conditions on Nepali fathers, it states that Nepali mothers shall independently apply for citizenship on behalf of their child only if the father is ‘unknown’, a term with significant stigma attached. Even in such cases, if the father is later established to be a foreigner, the child loses citizenship by decent and is declared to be a naturalised citizen.
The added stipulation of “permanent domicile” of the mother also raises concern regarding access to even naturalised citizenship, for the children of Nepali mothers working in the migrant labour force, whose fathers are foreign.
There are various disadvantages to naturalised citizenship over citizenship by descent. For example, the Constitution restricts certain high public offices to those with citizenship by descent.7 Furthermore, historically, naturalisation has been a highly discretionary and difficult process. According to research carried out by FWLD and cited in our previous joint UPR submission, “the discretion wielded by state authorities in relation to naturalization is extremely wide, and the overwhelming majority of naturalization applications do not result in the conferral of nationality. Research conducted by FWLD reveals that in the first six years of the implementation of these provisions, not a single naturalization application was successful”.8 Naturalisation remains at the discretion of administrative authorities even after the new Constitution has come into place. There is no evidence that the process has become more accessible and fair over the last year.
These inconsistencies demonstrate that the Constitution maintains gender discrimination in relation to citizenship rights, despite guaranteeing gender equality in the law.
While disappointing, Article 304 of the Constitution specifies that “laws inconsistent with this Constitution shall, to the extent of inconsistency, ipso facto, cease to operate, one year after first session of federal legislature, in accordance with this constitution”. Consequently, the Constitution provides a grace period of 2 years within which existing laws are to be revised and brought into compliance with it. As stated above, despite its inadequacies, the new Constitution is an improvement on the interim Constitution and is significantly more in line with Nepal’s international obligations than the Citizenship Act and Citizenship Rules of Nepal. Consequently, there is a critical window of opportunity to promote reform of Nepal’s Citizenship Act and Rules, to bring them into compliance with Nepal’s Constitution and its international obligations – in particular, CRC Article 7.