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Citizenship Law of Nepal

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Citizenship Law of Nepal Legal Analysis of CITIZENSHIP LAW OF NEPAL A Comparative Study of the Nepal Citizenship Act, 2006 with the Constitution, Precedents, International Human Rights Obligation and Best Practices 2016 Forum for Women, Law and Development (FWLD) Working for non-discrimination and equality Publication No. 190 Forum for Women, Law & Development (FWLD) Working for non-discrimination and equality Legal Analysis of CITIZENSHIP LAW OF NEPAL A Comparative Study of the Nepal Citizenship Act, 2006 with the Constitution, Precedents, International Human Rights Obligation and Best Practices Advocate Sabin Shrestha Advocate Subin Mulmi November 2016 Contents Executive Summary Background 1 Objective 2 Limitations of the Analysis 2 Suggested amendments in the Nepal Citizenship Act, 2006 according to the Constitution of Nepal, 2015 2 Constitutional provisions on citizenship 13 Citizenship as a right 13 Citizenship by descent 14 Citizenship by naturalization 15 Other Provisions 16 Honorary Citizenship 16 Citizenship in case of accession of territory 16 Gender Identity 16 Citizenship through the name of father or mother 16 Non-residential Citizenship 16 International Obligations of Nepal related to Citizenship 17 Universal Declaration of Human Rights (UDHR), 1948 17 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 1979 18 International Covenant on Civil and Political Rights (ICCPR), 1966 18 Convention on the Rights of the Child (CRC), 1989 19 International Convention on the Elimination of All Forms of Racial Discrimination (CERD), 1965 19 Decisions of the Supreme Court on Citizenship 20 Best Practices of other Countries regarding Citizenship 23 EXECUTIVE SUMMARY The new Constitution of Nepal, though considered non-discrimination by the state based on gender and more progressive than the Interim Constitution Article 38(1) which establishes equal lineage rights of Nepal 2007 in terms of women’s rights, is still for women. However, the citizenship Act needs discriminatory on citizenship provisions that to be in line with the new constitution. Namely, contradict with each other and restricts mother’s provisions corresponding to Articles 10, 11(1), 11(2) right to confer citizenship to their children (a), 11(3), 11(5), 11(7), 12, 14 and 15 of the constitution independently. Continuous efforts must be made need to be added in the Act. Accordingly, procedures in order to amend the discriminatory constitutional as to how to acquire the citizenship, pursuant to provisions and in parallel the positive aspects those provisions, need to be well clarified in the of the constitution must be incorporated in the citizenshipAct. current citizenship Act so that such contradictory provisions do not jeopardize its progressive attempt. Furthermore, it is essential to remove provisions that Thus, it is imperative to ensure that the language are no longer part of the constitution. Provided that in the corresponding Nepal Citizenship Act, 2006 the new constitution no longer foresees the possibility will be drafted in a manner that minimizes the for citizenship by birth in Nepal,paragraph 4 needs effects of the inconsistency in the new Constitution. to be removed from the Nepal Citizenship Act, 2006. Amending the Nepal Citizenship Act, 2006 in order Similarly, the discriminatory provision in the proviso to conform it to the new constitution, also provides of Section 8(1)(a) must also be repealed as it is in with an excellent opportunity to analyze the contradiction to Article 11(2)(b) of the Constitution. abovementioned inconsistencies, and also to remind In addition, there is a need of some minor changes about the international human rights obligations in the citizenship Actregarding the naturalized of Nepal, along with the decisions of the Supreme citizenship of the child, thus Sections 5(2) and 5(3) Court. It is also the correct time to learn from the must be amended pursuant to Article 11(7) of the best practices of other countries on this very issue. Constitution. Similarly, the scope of Section 5(4) An in-depth analysis of the constitution shows must be expanded as to cover cases of foreign men that Articles 11(5) contradict with Article 11(2)(b). married to Nepali women, based on the application They are also in contradiction with Article 18 which of Article 11(8) of the Constitution. The criteria to guarantees the fundamental right to equality and acquire such citizenship must also be added. BACKGROUND The first citizenship Act was enacted on May 8, citizens at the time of the child’s birth. However, a 1952, laying down formally for the first time the prohibitory clause superseded this provision stating qualifications of becoming a Nepali citizen. The that persons born to Nepali mothers and foreign Act specified that the following persons born in fathers could only acquire a naturalized citizenship Nepal; persons whose father or mother was born certificate. This provision resulted in preventing in Nepal; and persons with permanent residence in children of single mothers and those whose fathers Nepal living with their families could acquire the refused to acknowledge their relation from obtaining citizenship of Nepal. citizenship certificates. The Nepal Citizenship Act, 1952 remained effective Almost nine years after the second people’s even after the promulgation of the Constitution of movement, the Constituent Assembly (CA) 1959. With the dissolution of the multi-party system promulgated a new Constitution on September 20, and the introduction of the Panchayat regime in 2015. This period witnessed the dissolution of the 1963, another constitution was promulgated in first CA on May 28, 2012 and the election of a second the same year. Under the constitution, the law on CA on November 19, 2013 as a result of the top citizenship came in the form of the Nepal Citizenship political parties failing to reach consensus on some Ordinance, 1963 which was enacted on December 15, contentious issues, including citizenship. The new 1963 repealing the previous Act of 1952. The same Constitution has some new provisions which were Ordinance was adopted in February 28, 1964 as the not in the Interim Constitution of Nepal 2007. Some Nepal Citizenship Act, 1964. provisions in the current Nepal Citizenship Act, 2006 are in contradiction with the new constitution This Act made some drastic changes in the and it needs to incorporate the new provisions in the citizenship law of Nepal. Citizenship by descent new constitution of Nepal, 2015. could only be acquired by persons whose fathers were Nepali citizens at the time of the child’s birth. In addition, the Supreme Court of Nepal has made With regard to naturalized citizenship, the residency a number of landmark decisions on citizenship requirement was increased from five to fifteen years directing to the Government of Nepal especially the and the mandatory requirement of being able to Ministry of Home Affairs and District Administration speak the national language was also added. Foreign Offices to comply with the provisions on citizenship. women married to Nepali men could acquire Nepali Citizenship laws are yet to be revised to comply citizenship if they provided evidence that they had with the decisions of the Supreme Court. initiated the process of rescinding citizenship of the Furthermore, Nepal is a party to a number of foreign country. international human rights treaties including Despite the restoration of multi-party democracy in International Covenant on Civil and Political Rights 1990, after 30 years of authoritarian monarchical rule (ICCPR), International Covenant on Economic, under the Panchayat system, the citizenship Act of Social and Cultural Rights (ICESCR), Convention 1964 was retained. The second people’s movement of on the Elimination of All Forms of Discrimination 2006 led to the adoption of an interim constitution against Women (CEDAW), Convention on the in 2007. This constitution had the same provisions Rights of the Child (CRC) and Convention on the regarding naturalized citizenship, but regarding Elimination of All Forms of Racial Discrimination citizenship by descent, it allowed citizenship to (CERD). persons born to a father or mother who were Nepali Legal Analysis of Citizenship Law of Nepal 1 Treaty bodies of the abovementioned instruments on citizenship2, the change needs to take place in consistently call on Nepal to ensure men and women Nepal as well. Nepal’s citizenship law needs to be have equal rights to citizenship including right to amended pursuant to the constitutional provisions, transfer citizenship to children through mother.1 Nepal’s international human rights obligations and Deriving from these treaties there are a number of the decisions of the Supreme Court. Best practices obligations that Nepal has the duty to take into of other countries with regard to citizenship may account while drafting new laws including on also provide guidance. This document highlights citizenship. the provisions in the citizenship law that need to be amended because they contradict constitutional With each passing year, countries around the world provisions, international laws, Supreme Court with discriminatory citizenship provisions are decisions and the best practices of other countries. gradually amending their citizenship laws to ensure The document suggests changes in the current Nepal gender equality and to prevent putting persons at the Citizenship Act, 2006 in line with the citizenship risk of statelessness. With Nepal also listed as one provisions in the new Constitution
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