Kathmandu, Feb 19: Nepal finally framed a
new constitution through a Constituent Assembly after four years of debate and
discussion on the constitutional issues; however, for all the toils, it could
not do justice to women.
According to an article by Mohna Ansari in The Kathmandu Post
on Monday, the Nepali women do not enjoy the same right as men when it comes to
transmitting the Nepali nationality to their children.
"Why does the constitution not provide this right to females
on par with the males? This is a fundamental question for any democratic
country. Those who want to see how our women are discriminated against can read
the Article 11(6) of the constitution which stipulates that the children of
Nepali women married to foreign men cannot get citizenship by descent,"
the article asks.
It says that this comes despite the fact that the children of
Nepali men who are married to foreign women are entitled to citizenships by
descent. However, that is not the case for the children of Nepali women married
to foreign men, who can only be naturalised. This means that they will be
second-class citizens their entire lives. As such, they will not be qualified
to hold more than 10 different constitutional posts, including the post of the
Prime Minister, President and the Speaker.
Article 289 (1) of the constitution stipulates: In order for
a person to be elected, nominated or appointed to the office of President,
Vice-President, Prime Minister, Chief Justice, Speaker of the House of
Representatives, Chief of State, Chief Minister, Speaker of a State Assembly
and chief of a security body, the person must have obtained the citizenship of
Nepal by descent.
Similarly, read article 11(5), which states that the children
of a mother whose husband is unknown or missing can obtain citizenship by
descent. But if husband is identified and if he is found to be a foreigner,
then the citizenship of his children would be automatically converted into a
naturalised citizenship. Is this not discrimination?
There are many women who want to have children without
getting married. Many women know the father of their children but they don’t
want to mention the name for a number of reasons. How can these women write
that the father of their children is missing or unknown? The district
administration offices are refusing to give citizenship to the children of
women who do not want to mention their husband. Similarly, there are many women
who are married to foreign men. DAO offices are denying naturalized citizenship
to their children citing the lack of laws. It has already been
two-and-half-years since the constitution was promulgated and yet the
government has not made any efforts to enact a new citizenship law.
Children of citizens by birth are also facing problems in
obtaining their citizenship. The Supreme Court has already issued a writ of
mandamus telling the government to provide citizenship on the basis of a
mother’s Nepali nationality. In a case filed by Sabina Damai, the Supreme Court
clearly told the government to provide the petitioner the citizenship
certificate on the basis of the mother’s Nepali nationality. It had recently
issued mandamus to the government telling it to give citizenship to the
children of those who have received citizenship by birth. Despite several court
orders, chief district officers (CDOs) continue to defy them.
In a democracy, everyone is equal. The modern constitutional
theory and the rule of law principle do not allow discrimination on grounds of
sex, caste, creed, religion and colour, except in the case of affirmative
action, the principles of which are clearly laid down in jurisprudence. Yet we
see our women being treated as second class citizens. When will these barriers
against women break?
Not only CIJ but THRD Alliance and FWLD have reports that
large number of children of Nepali women married to foreign men or children
fathered by foreign men are facing a situation of statelessness.
"Recently, I read about Mithila Devi of Matihani,
Mahottari. A Nepali citizen by descent, Mithila Devi has been married to a man
from India who has been living with her in Mahottari for last 38 years. Her son
Arjun Sah was born in Mahottari and has been living in Nepal with their
parents. Arjun is 25 years old but he is struggling to get his citizenship
certificate. He has obtained an MBA degree but doesn’t have a job due to lack
of a citizenship certificate. Not only that, he has not been able to open a
bank account, obtain a driving license. or a SIM card," Ansari says in the
article.
Article 8 of the Child Rights Convention (CRC) and Article 15
of Universal Declaration of Human Rights (UDHR) grant the right of citizenship
to children. Nepal is a party to the Convention against All Forms of
Discrimination against Women (CEDAW) which has given equal rights to women.
Nepal honours the UDHR and is a party to CRC and CEDAW, yet it does not care
about all these international commitments.
"The Nepali state is doing injustice to women because it
strongly believes in patriarchal values that does not treat women equally. As
today is the Democracy Day, I urge all to do a little bit of soul searching and
amend the laws that do injustice to our women. On the one hand, women are yet
to gain equal rights, and on the other, whatever rights have been given to
women, they are not able to exercise them due to practical impediments. We need
to take a solemn pledge on this Democracy Day that we are committed to uphold
the rights of women," the article concluded. UNI
