The committee on the rights of the child 72nd

Update on jurisprudence of the Nepal Supreme Court

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Update on jurisprudence of the Nepal Supreme Court

  1. Two recent landmark decisions of the Supreme Court of Nepal, which further strengthen citizenship rights in the country for children who are at risk of statelessness, were published on 4 April 2016. Below is a brief account of each case:

  1. The case of Bipana Basnet et al. vs. District Administration Office, Kathmandu et al.9 related to a child who was living with his mother, under her legal custody, after she had divorced his father. The applicant brought this case before the Supreme Court on behalf of her son Rijan, because while the Chief District Officer’s Office in Kathmandu (CDO) accepted his citizenship application, it granted him a citizenship certificate in his father’s surname, despite Rijan requesting this in his mother’s surname. The actions of the CDO were discriminatory and in violation of Nepal’s obligations under CRC Article 8. The applicant filed a writ before the Supreme Court, which ruled in his favour, issuing a mandamus order to the CDO to provide the applicant’s citizenship certificate in his mother’s family name. This is first time in Nepal that the mother's family name will be used in a citizenship certificate despite father being known.

  1. In the case of Jayanti Sikhari Khanak and et al. vs. District Administration Office, Kathmandu and et al.,10 the applicant came from the district of Sunsari in the Terai belt and her husband came from Kathmandu. The Terai belt – due to its proximity to India and for reasons of caste and ethnicity – is the region in Nepal where the impact of gender discriminatory nationality law is most acute. The applicant’s husband had abandoned both her and his son, and refused to support his son’s citizenship application when his son turned 16 years old (the age at which Nepali children can apply for a citizenship certificate). Despite the lack of cooperation by his father, the son found his father’s citizenship number and filed an application for citizenship with a duplicate of his mother’s citizenship certificate and his father’s citizenship number as supporting documentation. The Kathmandu CDO office informed the applicant’s son that it could not find a record of his father’s citizenship with the number alone. The applicant filed a writ before the Supreme Court, which issued a mandamus order to the CDO to provide the applicant’s son with a citizenship certificate. The Court also issued a directive order for the systematic and scientific recording of citizenship certificates.

  1. While welcoming both decisions, the co-submitting organisations are concerned about the implementation of these judgments. There is a long record of non-implementation or partial implementation (by limiting the judgment only to the case at hand and not following the principle established it in subsequent administrative decisions) of Supreme Court judgments by Nepali executive and administrative authorities, which has a detrimental impact on the child’s right to acquire a nationality.11

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