This situation update serves as the implementation of the recent Universal Periodic Review (UPR) recommendation and Nepal’s commitment to amend laws and change practices relating to citizenship.
During Nepal’s UPR in Geneva in November 2015, the international community had expressed its concerns over gender discrimination in the citizenship articles of Nepal’s new constitution.
However, the practice remain the same and no amendment has been made.
Below are the representative cases, wherein the three persons were deprived of their right to obtain citizenship in Nepal, ultimately leading to denial of access to their fundamental rights and basic services delivered by the State. Only after they filed the cases at the courts, they have been able to receive the certificate of citizenship. These three citizens knocked to door to get justice but there are many people like them in the country who suffer in silence.
THRD Alliance calls on the government to ensure its people with the right to citizenship. We also call on the stakeholders to lobby with the government in doing so.
CASE – 1
In November 2017, Sakar Singh, a resident of Janakpur Sub-metropolis- 11, visited the District Administration Office (DAO) of Dhanusha with the application to obtain his citizenship certificate. But the DAO refused to issue the citizenship by descent to him. Sakar’s grandfather Jogendra Singh obtained the naturalized citizenship on 23 February, 1978 and his father Sanjay Singh, who was born on 19 April, 1978, was citizen by birth and Sakar’s mother Roji Acharya is a citizen by descent.
CASE – 2
Bibek Kumar Jaiswal, a resident of Janakpur, Sub-metropolis-6 had been visiting the District Administration Office of Dhanusha since January 2017 but the office refused to issue his citizenship certificate. The reason for the refusal of his citizenship, as stated by the DAO, was the absence of enactment of relevant laws related to citizenship.
Even though Bibek’s mother Mala Devi Kalwarni obtained her citizenship by descent on 1 March 1988 and his father had obtained his citizenship by birth on June 1, 2007, he was deprived of his right to citizenship under the pretext of the absence of the relevant citizenship laws.
Bibek was a student of BMC College in India. Had he had failed to produce his citizenship certificate to his college within a month, his admission could have been revoked.
CASE – 3
The DAO Dhanusha refused to issue the certificate of citizenship to Prabhat Kumar Santanu, a resident of Janakpur sub-metropolis-10. His mother had obtained her citizenship by descent on 5 October, 1988. His father Bijayant Kumar Singh had obtained his citizenship by birth on 29 March, 2007.
Prabhat required to produce his citizenship certificate at BP Koirala Institute of Health Sciences (BPKIHS) to appear in the entrance examination of MBBS. In lack of the citizenship, he was also deprived of his access to education and other fundamental rights as guaranteed by the constitution.
Court Intervention and Analysis
In response to the cases filed at the High Court of Janakpur (second case) and Supreme Court of Nepal (first and third cases), the District Administration Office of Dhanusha was ordered to provide citizenship by descent to the petitioners. The verdict in the first case was delivered by a division bench of Chief Justice Gopal Parajuli and Justice Bam Kumar Shrestha while a division bench of Justices Hari Krishna Karki and Purushottam Bhandari delivered the verdict in the third case. A division bench of Judge Madhya Prasad Pokharel and Thakur Prasad Sharma Paudel handed down the verdict in the second case filed at the High Court of Janakpur.
As per the court verdict in the case – 1:
Petitioner Sakar Singh has a right to get the citizenship by descent in accordance with Article 11 (1), 11(2a) 11 (2b) and 11 (7) of the constitution. As per Article 11 (7) of the constitution and Section 3 (1) of Nepal Citizenship Act 2007, a person is entitled to citizenship by descent if that person’s parents are Nepali citizen at the time when the person obtains his/her citizenship.
The refusal of the District Administration Office, Dhanusha to issue the petitioner the citizenship certificate on the pretext of a circular issued by the then Ministry of Home Affairs. The circular was issued by the Home Ministry on 26 March 2014 after section 3 (4) of the Nepal Citizenship Act, 2007 was rendered ineffective by Nepal Citizenship (first amendment) Ordinance issued under Article 88 (2) of the Interim Constitution of Nepal, 2007. The circular was not in conformity with the law. The Home Ministry, in its written reply, said that it has not issued any circular in violation of the constitution and the prevailing laws.
As per the court order, a citizen cannot be deprived of his/her citizenship certificate just because a designated authority does not understand the constitution, laws and the human rights covenants, or he/she misinterprets laws. The court cannot accept any reason of difficulty in issuing a citizenship certificate. In this case, a public post holder created obstacle in issuing citizenship to the petitioner on various pretexts.
As per the court verdict in the case – 2:
The court verdict for the case – 2 stated that the writ petitioner was born in Janakpur and his parents are Nepali citizens. As per Article 10 and 11 of the Constitution, if a person’s father and mother both are holders of Nepali citizenship at the time of his/her obtaining a Nepali citizenship, then that person has the right to get citizenship by descent.
The constitution is the law of the land, and unless the constitution itself restricts anything, its provisions are enforced the day the constitution comes into force. It is the legal duty and responsibility of relevant bodies and the designated officer to coordinate and consult with the relevant body and concerned department and determine the process in a way that upholds citizens’ fundamental rights. Bibek Kumar Jaiswal tried for long to obtain his citizenship as per the constitutional provisions but the concerned authority halted the process for long without showing sensitivity towards the petitioner and thus the concerned authority failed to fulfill his legal obligation. The verdict also read that a writ of mandamus has been issued in the name of DAO Dhanusha for not fulfilling legal obligation.
As per the court verdict in case – 3:
The verdict of the case – 2 has also reference from the similar legal precedent of the Supreme Court in the case – 3 (Prabhat Kumar Santanu). The court verdict stated that the principle of ‘All citizens shall be equal before law and no person shall be denied the equal protection of law’ means that the state, while using general law should not discriminate against anybody on grounds of caste, ethnicity, region, language, religion, colour, gender, sexual orientation and social origin. There are certain exceptions to the rule of equality before law and equal protection of law but such exceptions are provisioned in the constitution and all other acts against the principle of equality before law and equal protection of law is unexpected.
Articles 11 (2b) and 11 (3) of the constitution do not prevent the petitioner from obtaining his citizenship. It will be wrong to deny the petitioner his right to obtain his citizenship certificate.
If a person is born in Nepal and if his/her parents are Nepali citizens when the person seeks to obtain his/her citizenship then state is obligated to grant citizenship to that person under Article 11 (2b) and 11 (3) and 11 (7). Unnecessary conditions or obstacles should not be created against the substantive provisions of Article 11 (2), 11 (3) and 11 (7) of the constitution.
As per the verdict, the DAO Dhanusha was ordered to grant the petitioner a certificate of citizenship by descent keeping in mind the compulsory requirement of citizenship for enrolment in educational institutions.
There are certain constitutional provisions (as mentioned above) which guarantee the right to citizenship. These provisions alone are sufficient to issue the citizenship certificate to the persons, and no citizenship law is required in similar cases. The above analysis suggests that there are administrative hurdles to obtain citizenship certificates when those from Madhesi and Tharu communities apply for citizenship. It is not difficult to understand that the Chief District Officers refused to grant citizenship certificates to bona fide Nepali citizens mainly because of their prejudice to people of Madhesi origin. On top of that, the court verdict in second case clearly stated that a concerned authority has the duty to abide by the verdict delivered by the court in similar case. It is the duty of the concerned authority to not create a situation where every individual has to go to file a case in the court and get a court decision made. The government authorities issuing the citizenship certificate do not meet the compliance of the court order as well.
Hence, THRD Alliance calls on the government authorities to meet the compliance of the court order and the constitutional provisions on citizenship to ensure the right to citizenship to the citizens. If the designated authorities do not understand the constitution, laws and the human rights covenants, and/or misinterpret laws, it cannot be justified. They should act responsibly and fulfill their duties to issue citizenship certificates, without creating any obstacles on any pretexts.