Long read | Beyond the bill: What lies behind the controversy on Nepal’s citizenship legislation?

Nepal appears to be mired in a collision between the head of state and the government as the former refused to sign the citizenship bill into law on September 20. Is that all one needs to know about it? Here is a big picture.

President Bhandari

Mahabir Paudyal

  • Read Time 9 min.

A new controversy grips Nepali politics as the government and head of state face-off over citizenship legislation. So it might appear to those watching the debate. 

Since President Bidya Devi Bhandari chose to leave the bill to amend Citizenship Act (2006) unauthenticated on September 20 night, criticisms are being hurled at Nepal’s first female president from various sides: Her intention is being questioned, she is being portrayed as anti-women women president, she has been blamed of ‘playing political card’ with citizenship legislation, there have been calls for her resignation, even impeachment. Ruling political parties–Nepali Congress, Maoist Center, CPN (Unified Socialist)–issued a strong statement on September 21 condemning her move.  On September 22, a writ petition was filed at the Supreme Court challenging her move. The court issued a show-cause notice to the office of the president. 

The citizenship issue is going to drag on and it is likely to be used by the political parties as the agenda during the upcoming elections.

Divided opinions

While the main opposition party, some fringe parties and people have defended the president’s move citing the doctrine of necessity,  a large section of the ruling coalition, Nepali media and intellectuals have united against the president.

Those criticizing the president and defending the bill are presenting it as if it was the impeccable document that could resolve all problems related to citizenship, as if all other processes were duly followed, as if the parties in power (Congress, Maoist Center and others) had wanted nothing else but this. In this whole affair, only one person has been singled out. The president.

We are being told that the president violated the constitution and that she is posing a great danger to the nascent  federal democratic polity with this single action, or inaction, of not signing the bill into law. If you fall for this narrative, you will miss a big picture of Nepal’s citizenship conundrum. There is a long context and controversy to it, which this article will seek to unravel in the following paragraphs.

Inheritance of discontent 

The dispute on citizenship goes back to 2015 when the draft of the current constitution was being made (well it goes farther back but 2015 has been taken as the point of reference here for the sake of brevity). Like today, the major issue was about the equal rights of women to pass on citizenship to their children without hassles, or at least through similar provisions whereby men can pass on citizenship to children. Major bone of contention was around the rights and powers of naturalized citizenship by marriage.  While big parties like Nepali Congress, CPN-UML and CPN-Maoist rooted for restricting certain posts for the naturalized citizens by marriage,  Madhes-based parties stood opposed to it. They rooted for equal citizenship provision for women married to Nepalis from across the border. They demanded that daughter in-laws of Indian origin should be treated at par with daughter in-laws of Nepali origin. When the subject of citizenship rights of foreign men married to Nepali women arose, Madhesh-based party leaders quickly dismissed it.

The idea of equal ‘cooling off’ period for foreigners–men or women–married to Nepalis was proposed as a potential solution. Provision of granting them citizenships after certain years of stay in Nepal was discussed. But there was no consensus on it.

So the drafters of the constitution chose the short-term easy way out. They left the nitty-gritty of the naturalized citizens to federal law. The federal law, it was then believed, would address the unresolved issues, including the issues surrounding the citizenship rights of the children born to Nepali citizens by birth.

But similar disputes arose while formulating the federal law on citizenship rights. The  State Affairs and Good Governance Committee of the lower house, tasked to finalize the citizenship bill, struggled to come up with a consensus report. It finally prepared a report recommending certain provisions, including the ‘cooling off’ period of seven years for foreign women married to Nepali citizens, while remaining silent about the foreign men married to Nepali women. 

Then in May, 2021, the government led by KP Oli, which was failing to retain support following unconstitutional dissolution of parliament twice in a row, issued an ordinance to amend the Citizenship Act, which, among other things, sought to ensure citizenship by descent to the children of citizens by birth.

The ordinance, which Oli brought to secure support from Janata Samajbadi  Party, got aborted when the Supreme Court ordered the government not to implement the ordinance.  Notably, the supporters of the citizenship bill, which has similar provisions to the ordinance, today were the big critics of that ordinance.

Then in June, failing to secure consensus, the State Affairs Committee approved the bill through majority votes. It was never presented for voting in parliament. The focus of the political parties then shifted toward building a new coalition to replace Oli from power. Nobody cared to pay attention to the citizenship bill.

The president is blamed for triggering the “constitutional crisis” by not signing the citizenship bill into law. But both content and process were flawed. Ruling coalition undermined parliament in the course of rushing the bill. Neither the ruling coalition nor the opposition parties showed interest in resolving the issue.

Then on July 12 the Supreme Court ruled that Oli’s decision to dissolve parliament for a second time was unconstitutional, ending Oli’s over three years in power and appointing Sher Bahadur Deuba Prime Minister

However, the Citizenship dispute, it seemed, was yet to become over.

As if this was the first task in priority, the Sher Bahadur Deuba-led government withdrew the Bill to Amend Citizenship Act which was under consideration in Parliament for four years. 

The Deuba-led government shelved the bill of the State Affairs Committee and brought out a completely new one.  The new bill removed the seven years cooling-off period earlier proposed by the State Affairs Committee of the House of Representatives.

Conscientious minds in Kathmandu asked: Why so?

Flaws in content and process

The critics of the president’s move and the supporters of this bill have presented it as the panacea to the citizenship issue.  They would have us believe the process was duly followed.  The fact of the matter is that the citizenship bill is riddled with flaws–in content as well as in process.

Main flaws of the bill lie in two places. According to the bill, foreign women married to Nepali men can obtain naturalized citizenship right after starting the process of relinquishing the citizenship of their country of origin. A Nepali man does not have to wait to obtain citizenship for his spouse even if she is a foreigner. However, Nepali women married to foreigners cannot ensure citizenship to their spouses in the same way the Nepali men married to foreign women can.

And by not mentioning any cooling off period for foreign women married to Nepali citizens, the bill has continued with the existing legal provisions of providing citizenships to such people immediately after starting the process of relinquishing the citizenship of their country of origin.  

Experts have opined that this makes acquiring citizenship for foreign women married to Nepali men extremely flexible while making the same too rigid for foreign men married to Nepali women.

What does it matter? It does. First, without similar rights to the Nepali women married to foreign citizens to pass on citizenship to their spouses, it appears to make Nepali women married to foreign citizens less equal than foreign women married to Nepali citizens. Besides, it makes Nepali men more equal to Nepali women in matters of transferring citizenships to their spouses. In other words, it contravenes the basic principle of equality which the constitution guarantees every Nepali citizen.  

Not only that, the bill imposes a humiliating provision on Nepali women to pass on citizenship to their children with their identities. They have to fill up and sign the self-declaration form mentioning the identity of the ‘father’ of the children. 

“The proposal to impose a ceiling of five or seven years for both foreign men and women married to Nepali citizens was fair. It would be in line with the constitutional principle of equality while at the same time preventing the citizenship acquisition process from becoming too flexible,” Jivesh Jha, who is a legal expert, told Nepal Live Today on July 28.

It should be noted that the State Affairs Committee had discussed at length whether to keep cooling off periods of five or seven years to the foreigners married to Nepali citizens. 

“Now that the bill has no provision of cooling off period for foreign women married to Nepali women, it would appear unjust to impose any cooling off period for foreign men married to Nepali women,” he said.

As much as the content, the process through which the bill was rushed was also questionable. On July 22, the bill was passed through the fast-track method and by around 12 percent of the total number of parliamentarians. Nepal’s lower house consists of a total of 275 members but on the day the bill was passed only 45 members were present in the House.

On July 28, the Upper House also endorsed the bill, which was then sent to the Office of the President for authentication by the Speaker of the House on July 31.

President’s move: Right or wrong? 

By the time the bill was sent to the president on July 31 for authentication the first time, public opinion was already divided over whether it should be endorsed in the current format or with amendment. After consultations with the experts, the president on August 14, returned the bill to the parliament for review with 15-point messages.

Anyone who may have read the 15-point messages–which expectedly found little coverage in English media–may have known why some of the concerns raised by the head of the state not only deserved thorough deliberations but also could help end the citizenship debate that is as old as citizenship law itself.

In her message, the president had raised some major points: She objected to the provisions of women having to make ‘self-declaration’ to pass on citizenship through mother’s identity (the self-declaration is about who the father of the child is and why she cannot disclose his identity and if the father of the child is later discovered  to be a foreigner there is stringent punishment for women). Second, her message was about ensuring gender equality on citizenship law. She also demanded that provincial identity (enshrined in Article 10 (2) of the constitution) should be ensured in the citizenship. She called for a comprehensive study on the historicity of citizenship laws, called for resolving issues related to naturalized citizenship once and for all and raised concern regarding why the report of the State Affairs Committee was never considered.  

Honestly, some of the concerns raised by the president were exactly the same as those raised by activists who love to identify themselves as progressive. They have been arguing, at home and abroad, that Nepal’s citizenship law is deeply patriarchal and gender-insensitive.   Interestingly, members of this progressive lobby have stood in defense of the citizenship bill, which they vehemently criticized in the past. 

The ruling parties took no heed of the messages of the president. None of those concerns became the subject of deliberation in either House of parliament. The parliament sent back the bill to the president for the second time without changing a word in it.

So on September 5, the bill was sent back to the president. Indeed, the constitution of Nepal requires the president to authenticate the bill endorsed by both Houses of parliament.  Article 113 of the Constitution states that a bill presented to the President for his or her authentication shall be authenticated within fifteen days. 

But in case the President is of the opinion that any bill, except a money bill, presented for authentication needs ‘reconsideration’ (to me the word is loaded with meaning), he or she may, within 15 days from the date of submission of such bill, send back the bill along with his or her message to the House in which the bill originated.

Did the president make a mistake by not signing the faulty bill into law? Constitutionally, yes.  But were the political parties in power trying to resolve the citizenship issues? They were not. 

Article 113 does not give the president a liberty not to authenticate the bill, with or without amendment, if it is sent back to the president. Article 113 (4) says “in case any bill is sent back along with a message by the President, and both Houses reconsider and adopt such Bill as it was or with amendments and present it again, the President shall authenticate that Bill within fifteen days of such presentation.”

It bears mentioning here that the president’s messages were not ‘reconsidered’ by either house.

According to the constitution, if the President does not sign the bill presented to the office within 15 days a second time, it does not become a law.  

So did the president make a mistake by not signing the faulty bill into law? Constitutionally, yes.  But were the political parties in power trying to resolve the citizenship issues? They were not. 

Meanwhile, concerns were raised by some experts and civil society members that the faulty citizenship should not be authenticated by the president. Thus the president’s move would most probably be questioned either way: If she authenticated the bill as well as if she did not authenticate the bill.

The real victims

The biggest sufferers of the inability of the political leaders to draft broadly acceptable legislation on citizenship have been the children of those parents who have the citizenship by birth.  These children who came of age long ago, who want to start business or study abroad, have not been able to do so because they have not been able to acquire citizenship due to lack of law related to it.

Perhaps their concerns could be resolved by bringing an ordinance to specifically address their cases but political parties tried to address all the issues of citizenship at once, failing to address a single one of them in the process.

Double standards

In this game of narrative of vice and virtue, one can clearly see the double standards, lies and duplicity with which political parties, intellectuals and media handled the same issue–with utter bias. 

When K P Oli brought in ordinance, and before that even as the State Affairs Committee of the parliament was finalizing the bill, there was an uproar in Nepal that Nepal is continuing with the legacy of treating women as second class citizens. 

Now the same lobby is bashing the president for not signing the bill into law. Those who cried hoarse about the flawed content of the bill have nothing to say about the flaws that would have become a law if the president gave a stamp of approval to the bill. 

What will happen to the citizenship bill now has become the issue for the Supreme Court to decide. But the ongoing controversy is one fresh case of how the actions of various interest groups contribute to keeping the citizenship issue in limbo and how the Nepali political parties, instead of resolving the citizenship issue once and for all, are interested in keeping it alive for electoral gains.

Nepal is going for second federal and provincial elections scheduled for November 20, 2022.