Responding to Comments on Citizenship and Naturalisation
I would like to thank Robert Penner, Manjushree Thapa, Prem Thapa, and others for their critical comments to my op-ed ‘Citizenship and Naturalisation’ that appeared in The Kathmandu Post on November 29, 2016. I am writing this post as a response to the comments, especially by Robert.
Before I respond to the comments, let me clarify the issue covered in my op-ed along with the context and relevance. I had written the op-ed at a time when the government was preparing to register an amendment proposal in Parliament to modify the constitution for the second time. One of the key issues of the amendment proposal was to address the citizenship-related demand of agitating Madhesi parties. The focus of the article was on the naturalised citizenship as demanded by agitating Madhesi parties. They demand immediate acquirement of marital naturalised citizenship for foreign women marrying to Nepali men and grant them equal status by allowing them to hold top state positions.
In response to Robert’s first comment, I have intentionally raised repeated concerns over the citizenship of Indian women (i..e foreign women) marrying Nepali men. The point here is, many of those, including journalists, op-ed writers and youths, who voiced against the naturalized citizenship, have failed to understand that the specific kind of naturalisation, which Madhesis are more concerned about. They have mingled the specific type of naturalisation with a general one. To be more specific, the naturalisation based on marriage for foreign women marrying to Nepali men is different from general kind of naturalisation through immigration.
The agenda of Madhesis — the equal status for the foreign women married by Nepali men — is relevant and contextual to the prevalence of traditional cross-border marriage, which has existed even before Nepal existed or Prithivi Narayan Shah unified the smaller kingdoms to Nepal or the British Rulers of India handed it over to the Nepali rulers. (The Kathmandu Post – Bicentennial of a black day, http://kathmandupost.ekantipur.com/printedition/news/2014-02-06/bicentennial-of-a-black-day-258993.html)
But what about the reverse? Why does my opinion not raise concern for citizenship rights of foreign men marrying Nepali women? You mentioned that you saw the same pattern in a recent interview with Dipendra Jha. When my opinion piece or the recent interview with Supreme Court Advocate Mr. Jha put forth the argument for the equal status of the foreign women marrying Nepali men, it makes no argument that foreign men marrying Nepali women should be discriminated against and they should be deprived of equal status. Simply, not speaking for the reverse does not necessarily mean that we are against this.
The citizenship issue across the world is a critical political agenda. The Universal Declaration of Human Rights indeed provides that every person has a right to citizenship but this does not imply that every State has a duty to ensure that people will be accorded with citizenship. There exists a prevailing view that every State, by virtue of its sovereign character, is entitled to determine who will be its citizens and this decision falls within its exclusive discretion. This has led to the failure of international law for establishing an obligation upon States to ensure that people will be vested with the right to citizenship.
Characterised by the claim made in the aforesaid paragraph, citizenship is a political issue. Various political parties in Nepal have also different viewpoints to reflect upon the opinion of its constituency. Let me clarify that Robert’s concerns for the reverse (foreign men marrying Nepali women) is not the agenda of Madhes-based political parties. Unfortunately, none of the political parties in Nepal has raised their voices for it. They have also maintained their silence over the existing discriminatory provisions in the constitution such as putting restrictions on women passing their citizenship.
Sharing my anecdote with Vice Chair of Sadbhavana Party lawmaker Laxman Lal Karna would be worthwhile. Earlier, Lawmaker Mr. Karna had remained a member of the Constitutional Dispute Resolution Sub-committee’s Task Force (formed to resolve disputed issues in the draft constitution). In the meeting I asked, “Why aren’t Madhesi parties raising the issue of all the discriminatory provisions relating to the citizenship?” He shared his bitter experience while raising it during the constitution drafting process. Major political parties — Nepali Congress and CPN-UML– not only denied but reprimanded Madhesi parties about raising agendas which are not theirs,. Sticking to the agenda, that my opinion is concerned with, remained the major focus of Madhesi parties, activists and opinion makers from Madhes.
This does not mean that they have put no efforts for the equal citizenship. One may wonder to learn about the experience of Madhesi parties in the first CA, and they campaigned for the ‘father or mother’ as the basis of citizenship by descent, and they registered a note of dissent against the ‘and’ provision. It was resolved and the interim constitution was modified to insert ‘father or mother’ as the basis of citizenship by descent. Again, it was forwarded to the current CA as a resolved issue. In last CA, the Nepali Congress and CPN-UML, who see themselves as the guardians of Nepal’s nationality and sovereignty, have been insisting on the ‘and’ provision. This time, what really could Madhesi parties do? Their parties had only few members in the last CA.
The aforementioned responses, I believe, largely address your second comment regarding the reason behind this gender gap. This is, simply, is a political difference over the citizenship issue. I admit that there should not be a gender gap.
Your third comment ‘ The sentence –“When a daughter marries, she leaves the family, obviously. That last sentence is literally what several Nepalis have told me, matter-of-factly. But it pains me to write it.”- equally pinches me too. No one can deny your argument that giving a Nepali man more power to convey citizenship privileges to his wife is an insult to Nepali women. Indeed, it reinforces the attitude that men are special conduits of citizenship to women and children (Comment – 4)
Your fifth comment — You cannot, on the one hand, criticize the Constitution’s gender bias in passing citizenship to children, while advocating gender bias in citizenship through marriage. — makes me recheck my argument once again in the article. It does not specifically mention about ‘gender bias’; rather it has acknowledged the discriminatory provisions in the constitution. I was careful while writing the op-ed and hence, I did not mention the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), to which Nepal is a State party. The mention of CEDAW as the international norms and standard could have been quite relevant to my argument. The only fear was of similar consequential comments. Criticising the Constitution’s gender bias in passing citizenship to children and advocating gender bias in citizenship through marriage is unprincipled. It gives up the moral high ground. Reversely, my opinion in the article does not use the tool of gender-bias for the argument.
I believe that the responses made above also broadly address your last comment – constantly framing citizenship rights as “a Madhesi issue” seems like preaching to the choir. It may rally the base, but alienate potential allies.
I claim that you, as someone who has keen interest in Nepali politics, are quite aware of the alienation of political allies when it comes to any issue that Madhesis are pressing for. For instance, federalism is the largely the sole agenda of Madhesis. On June 8, 2015, major political parties, including Nepali Congress, CPN-UML, and the then UCPN-Maoist signed a 16-point deal, that stated to decide the names and boundaries of federal provinces only after promulgation of the constitution. In fact, the 16-point deal was a trick to dilute federalism as ensured in the article 138 of the Interim Constitution, which was added as a result of the Madhes movement.
But thanks to the efforts of Madhesi activists, especially petitioners Rita Shah and Vijay Kant Karna and lawyer Dipendra Jha for bringing the writ against 16-point in the Supreme Court and litigations. They could finally defend the federalism in the Constitution with the SC verdict in favor. But, now when it comes to the effective implementation of federalism in Nepal in a true sense, the coalitions with other parties and groups to seems quite impossible. The reason here is, the issue, those who have come up with and relentlessly nurtured are Madhesi parties. This is a baseless ground.
As you argue that it is easy to find complaints on social media along the lines of: “Madhesi activists are all about their own rights but don’t seem too concerned about poor hill people,” it is sheer generalisation. It is wrong perception and interpretation., Madhesh demanded Federalism, it came for all. Madhesh demanded inclusion, it came for all. Madhesh demanded republic, it came for all. There are a series of such demands made by Madhesh which came for all, not just Madhesis.
Even in this context, marital-basis naturalized citizenship is not just for Madhesi men marrying indian women, but for all Nepali men marrying foreign women. While the debate of amendment process was underway, why have women rights groups and others blaming Madhesis for raising their own agenda of citizenship failed to join hands with Madhesi parties. Most of women rights organizations and NGOs working for the issue of women are close ally to major political parties, including CPN-UML which remains major hurdle to liberal citizenship provisions in Nepal. –
To conclude, I agree with your observations and comments. Although my op-ed could not cover them completely, it did open the avenues for such discourses for agenda-based collaboration with the oppressed minorities, and search for the universal justice as you have remarked in your comment. Such a collaboration could have mutually helped both the agitating Madhesis and rights activists/groups completely address the citizenship issue. The consequence may be apparent here.
As per the amendment proposal registered with Parliament at night of November 29, 2016, the proposed language of Article 11 (6) is:
Foreign women married to Nepali national can acquire marital naturalized citizenship of Nepal as provided for in a federal law, if she wants so, after she begins the process to renounce the citizenship of country of origin.
However, the amendment proposal remains silence on whether those foreign women, after acquiring matrimonial naturalised citizenship, will be allowed to hold top state positions. Hence, the Article 289 in the constitution needs to be amended to completely address the demands of agitating Madhesi parties. Else, it does not really addresses the concerns of Madhesis over citizenship.
