In February 2011, the Supreme Court in Nepal handed down a landmark decision to the Dolakha District Administration Office to provide Nepali citizenship to one Suntali Dhami on the basis of descent from her mother, who held a Nepali citizenship.
Given that Dhami’s father was unknown, the Dolakha DAO had refused to issue her citizenship solely through her mother.
The Supreme Court decision set a momentous precedent for gender parity in Nepal, stating unequivocally that citizenship would be provided to children by descent (jus sanguinis) when either the father or the mother held Nepali citizenship.
This one innocuous word ― ‘or’ ― makes a world of difference, as is becoming evident in a major issue that has so far been sidelined by the Constituent Assembly amidst debates over state restructuring and forms of governance.
The provision of citizenship through the mother or the father, upheld by the 2011 Supreme Court decision, is enshrined in the Interim Constitution and the Citizenship Act 2006.
Contrary to all of these legal instruments, a citizenship draft bill, prepared in 2012 by the first CA, included a clause that states that both ‘mother and father’ must be citizens of the country for the child to acquire citizenship.
This regressive provision, passed by a majority in the Dispute Resolution Sub-committee of the first CA, has now been forwarded as is, without recourse to the Political Dialogue and Consensus Committee.
Given that the draft was passed by a majority and not through consensus, the issue remains ‘disputed,’ and thus, should have come under discussion at the PDCC.
However, the Record Keeping and Constitution Determining Committee of the first CA, whether unintentionally or deliberately, categorised the issue as ‘resolved’ and the draft bypassed the PDCC.
As of now, the draft bill is with the CA’s Constitution Drafting Committee, which has reportedly sent a note to the Baburam Bhattarai-led PDCC that the citizenship provision is ‘disputed.’
On this basis of this note, the PDCC, if willing, can itself take up the issue for debate.
If this does not happen and a draft of the constitution is prepared with the citizenship provision as it is, reservations can be propounded when the draft is taken to the public and the CA can amend the draft according to the public’s wishes.
Even after this, there is yet another window for intervention ― when the final constitutional bill is presented to the House for ratification.
At that moment, lawmakers can register an amendment against the regressive provision.
Each of these steps, however, will require substantial pressure from advocates and civil society, along with great political will from parties.
As contentious issues like federalism, governance and the judiciary threaten to overshadow the citizenship provision, political leaders and advocates must keep the issue alive and demand that the ‘and’ be replaced with an ‘or.’
Enshrining such a provision in the new constitution would send an indisputable message that women are equal citizens of the country. That will go a long way towards creating a just society.
