NEPAL: Citizenship Laws and Stateless Citizens
NEPAL: Citizenship Laws and Stateless Citizens.
Guest Column: By: Dr. Hari Bansh Jha
Article 15 of the 1948 Universal Declaration of Human Rights conferred upon each individual in the world the right to have a legal connection with the state. This right is not availed by mercy. In fact, each one individual has right to nationality as it not only provides her/him a sense of identity but entitles her/him necessary protection from the State, apart from many civil and political rights. Hence, in regard to citizenship, Chief Justice Earl Warren of USA rightly commented in 1958, “Citizenship is man’s basic right for it is nothing less than the right to have rights.”
However, millions of people in the world are without citizenship and so they are living in stateless condition. Of the various factors responsible for statelessness are: conflict of laws, administrative practices, discrimination, lack of birth registration, denationalization, and renunciation.
Internationally, there have been different ways to get citizenship. One method to get citizenship is through right to blood (jus sanguinins), the second through right of soil (jus soli), the third is through the process of naturalization, the fourth is through choice and the fifth is through acquisition of territory.
History shows that in Nepal the seeds of citizenship problem were rather sown during the regime of Prithvi Narayan Shah. The inhabitants of the Terai were not given any important assignments during his rule because they were reserved for certain ethnic group. In the matter of assignments, first preference was given to the hill people and the second to those who settled in Nepal with their family members and who were rich, faithful and respectful. Opportunity in assignments was given to Madheshi people when individuals from the above two categories were not found. It was in rare circumstances that the Jimidari and minor government posts were assigned to them.
Till 1950s, the Madheshi people were treated like the subjects of a colony in their own country. Until 1958, it was essential for them to acquire passport before entering into Kathmandu. The passport had to be obtained at Birjung which was checked at Chisapani Garhi on route to Kathmandu.
In Nepal, the system of granting citizenship on the basis of an individual’s birthplace and descent started in 1952. A person was eligible for acquiring naturalized citizenship if one resided in the country for minimum five years.
Subsequently, more restrictive clauses such as ‘Nepalese origin’ and ‘ability to speak and write Nepali’ were made pre-requisite for acquiring citizenship on the basis of naturalization. Clause (a) of Article 8, Section 2 of the 1962 Constitution made a provision whereby two years of residence for a person of ‘Nepali origin’ and minimum twelve years of residence for a person of ‘non-Nepali origin,’ apart from oral and written skills in Nepali language was made mandatory for a person to acquire citizenship certificate.
Interestingly, the 2962 Constitution and the Citizenship Act, 1964 did not define as to what the term ‘Nepali origin’ meant. Deliberately, it was left to the officials responsible for distributing citizenship certificates in different districts to make interpretation of the term ‘Nepali origin’ to the way they thought. But it was obvious that the government officials interpreted a person of Nepali origin as Pahadi origin. As it could be expected, many of the people from Terai we were inefficient or less efficient in oral and written skills in Nepali language and as such they were denied of taking citizenship certificates.
The Nepalese constitution 1990 introduced more stringent legislation to discourage people from getting citizenship. It not only repealed the provision of citizenship by birth but also made it mandatory for the foreigners to reside in Nepal for 15 years to qualify for naturalization.
As a result, many of the Nepalese citizens mostly in the Terai region virtually lived in stateless condition. An independent survey conducted by Centre for Economic and Technical Studies in early 1990s showed that 16% of the sample households from among the Madheshis in Terai region were not given citizenship certificates. Accordingly, 1.5 million people in Terai were estimated to have been denied of citizenship right. Later on, independent commissions constituted by the Government of Nepal at reported that the number of those without citizenship was at 3.4 million to 5 million in 1995.
Following, the second democratic movement in 2006, there was a general consensus among the political parties to issue citizenship to the Nepalese citizens liberally to ensure their participation in the CA election. Accordingly, new laws were introduced to facilitate the process of citizenship to the Nepalese nationals. In this process, the provision of issuing citizenship on the basis of birth was revived.
The Interim Constitution of Nepal 2007 mentioned, “Any person born and living permanently in Nepal before the end of mid April, 1990 shall acquire the citizenship of Nepal by birth in accordance with the existing law.” But this revision was only half-hearted as it added a clause whereby application for citizenship by birth was made valid for two years only until 26 November 2008.
Significantly, a massive campaign was launched in all the 75 districts of Nepal between January and April 2007 with the support of nearly 4000 staff to distribute citizenship certificates to all eligible Nepalese citizens of 16 years age and above. Citizenship was provided to 2.6 million eligible Nepalese people on the basis of certain documents like the citizenship certificate or land registration of immediate family members, supporting documents from the VDCs and other concerned citizens with citizenship certificates. This was a positive development as citizenship in Nepal not only provided legal identity but it was also a source of access to formal sector employment opportunities, banking facilities, property transactions, business and industrial opportunities, and social security. The failure to acquire citizenship in this country virtually means the state of de facto statelessness.
Subsequently, it was found that a number of Nepalese citizens failed to acquire citizenship due to the lack of documents related to land ownership certificates required to prove one’s length of residence in the country; illiteracy; lack of awareness; poverty; discouragement to the girls and women in certain communities to apply for citizenship; difficulty in getting supporting documents on account of poverty; damage or destruction of records at the VDCs; and non-availability of the VDC Secretaries in several VDCs, particularly in conflict-torn Terai region.
As per UNHCR estimates, nearly 800,000 people in Nepal are still living in the stateless situation in Nepal due to the lack of citizenship certificates. It is largely believed that most of these stateless people belong to Madhesh origin.
If the original estimates made by government constituted high level commissions about the number of people without citizenship (3.4 million to 5 million) are considered, nearly 1 million to 2.4 million eligible Nepalese citizens are yet to be provided citizenship certificates. This is the difference between estimated 3.4 million to 5 million populations without citizenship and those 2.6 million who were provided citizenship by the government in 2007-2008.
Views about the Denial of Citizenship
In the book, The Terai Community and National Integration in Nepal the persons belonging to different districts in Nepal expressed their views on citizenship related problems in the following manner:
The saints of Vaishnav sect at Janakpur who maintain celibacy lifelong commented, “We the saints have a tradition of selecting our disciples as adopted sons. These disciples are expected to be the heirs of our property. This is what has happened all though the ages. But for certain years, our disciples are being denied of this right”.
Ali Mohammad Kawadi stated, “The procedures of producing necessary evidences are so complex that we do not get citizenship”. Dhun Mun Harijan said, “I am settled her for last 60 years. But I don’t have any evidence to produce. So I am not getting citizenship”.
Dilim Bhuimali expressed, “My father died several years ago without having citizenship. When I approach the authorities concerned for my citizenship, I am told to produce the citizenship certificate of my father. Since my father did not have it, I am denied of citizenship right.” Likewise, Kamal Devi Yadav added, “I am being denied of citizenship for a long time”.
Bharatendru Kumar Malik said, “Many Madheshis people living in the Terai have been denied of citizenship certificates. On the other hand, the people of certain community coming from foreign countries, such as India, Bhutan, and Burma get citizenship in to time”.
Chet Ram Harijan reported, “The bribery at the office of the CDO creates problem in acquiring citizenship certificate. It may not be a problem for the rich, but it is really a problem for the poor”. Moreover, Chhotelal Vaishya pointed out, “I could not bribe the ward chairman for recommending my name for citizenship. Therefore, I failed to acquire it”.
Birbal Prasad Kanojia maintained, “My wife is being denied of citizenship as she comes from India”. Dinanath Jha reported, “My wife could not get citizenship because her name was not enumerated by Nagrikta Toli (Citizenship Committee)”. Similarly, Fakir Mohammad stated, “My wife is not getting citizenship though I have been sincerely trying for it . I am afraid if after my death she will be able to establish claim over our property.”
Furthermore, Radhe Shyam Mahato expressed, “My wife could not get citizenship as the concerned authorities ask for the citizenship of her father. Since her father died without having citizenship and the authorities do not give any importance to the citizenship of her mother, she has not been able to acquire this certificate.”
But Manoj Kumar Jaiswal said, “We are denied of citizenship because we are falsely branded as Indians”. On the other hand, Satyanarayan Singh revealed, “I originate from India. But I have been teaching in Nepal for 26 years. I wish to get Nepalese citizenship. Yet I am denied of this privilege. ”
Effects of Denial of Citizenship
Denial of citizenship has created problems for certain people. Firstly, they do not get service in government, corporation and private institutions. Secondly, they cannot run industry and trade. In the absence of citizenship, the industry and trade are not registered with the government bodies and as a result no loan is given by any banking and financial institution for such activities. Thirdly, denial of citizenship in one’s own country means humiliation as one is treated as a foreigner. And fourthly, the denial of citizenship is the denial of the basic human rights to hold property; the reason is that no body in Nepal is liable to purchase land in the absence of citizenship.
Recently, the Fundamental Rights and Directive Principles Committee of the Constituent Assembly in Nepal has further complicated the procedure for getting citizenship certificates. Provision has been made in the concept paper to harass those who would like to acquire naturalized Nepalese citizenship through marriage relations.
A foreign citizen marrying Nepalese citizen would be required to relinquish foreign citizenship and reside in Nepal for 15 long years in the anticipation to become entitled to receive naturalized citizenship certificate of Nepal. Till that period, the person would be given merely identity card and would not be entitled to any political rights, right to vote or hold any public positions for 15-year period. This also means that such a person would not be entitled to avail economic rights, like earning property, purchase and sale of property, engagement in business and industry, banking transactions or any other gainful employment in formal sector, which is a clear violation of Article 15 of the 1948 Universal Declaration of Human Rights.
Many of the Maithili, Bhojpuri and Awadhi-speaking people in the region have experienced problems in acquiring citizenship certificates as they are treated as “none” or “less” Nepali on the ground of the languages that they speak. Because of such cultural and linguistic criterion in providing citizenship, a large number of people from these communities found it difficult to register their land in their own name no matter for how long they and their ancestors lived in the Terai region.
Citizenship to Foreigners
There is certain group of people in Nepal who hold India responsible for the influx of population in Nepal. Even if this were the situation in certain cases in the past, there are many people from other countries including Burma, Bangladesh or even Tibet (China) who were provided Nepalese citizenship. And more recently, it is believed that 60% of the over 100,000 Bhutani refugees living in Nepal have been granted Nepalese citizenship certificates. It is not understood how the Nepalese authorities provided citizenship certificate to so many of the Bhutanese living in different camps in Nepal. Equally important is the reality that when these Bhutanese have been granted Nepalese citizenship, how it that they are being taken by the consortium of countries is including the United States of America and Australia in the name of Bhutanese to get them resettled in the respective countries in different phases. Such a trend, if not checked, might have serious security implications for Nepal.
The denial of citizenship affects the political, social and economic conditions of a person. However, there is no justification whatsoever to grant certain foreign citizens like the Burmese, Indians, Bangladeshis, Tibetans (Chinese) and more recently to the Bhutanese refugees citizenship certificates – be it in the name of Nepalese origin or other political reasons – as many people within the country including the Madheshis have been denied of this right. In this context, the provision made in the concept paper by the Fundamental Rights and Directive Principles Committee to deny the spouses of the Madheshis in Terai marrying across the border in India their right to citizenship for so many years is the denial of human rights. Since time immemorial, the Madheshis have tradition of cross border marriage relationship with people across the border in India. Even during the Ramayanic period, such a relationship was common. By overlooking these age-old relations among the border inhabitants, the Committee members have exhibited their lack of understanding of the ground reality in cultural, economic and political relations among the border inhabitants in Nepal-India border area. Such a step, if not corrected, might invite more of problems rather than resolving the conflict in future in Terai and so to say in the country.
Jha is Professor of Economics and Executive Director of Centre for Economic and Technical Studies in Nepal.
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