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Again on citizenship issues

Bipin Adhikari
The Kathmandu Post
1 January, 2007

An amendment bill on the Citizenship Act 1964 enabling all immigrants and their offspring to claim Nepali citizenship is awaiting legislative process of the House of Representatives for its passage into law. According to the bill, citizenship certificates will be provided to all applicants if they are able to prove that they were born in Nepal before the 1990 mass movement or residing in the country since then.

The bill has also introduced new provisions in the Act enabling men married to Nepali women and their children to claim citizenship with ease. Surprisingly, under the present formulation, the applicant is not even required to declare his or her intention to settle and reside in the country permanently.

While the year 1990 has been accepted as the cut-off year for distribution of citizenship, it is not clear how the idea is not to grant citizenship en masse (as was originally intended but later dropped off from the draft Interim Constitution last month) but to recognize the claim of every individual who is a de facto Nepali. The formulation that even if there is no written proof, a person can still qualify for the citizenship if he is successful to get recommendations from three Nepali citizens definitely indicates towards the fragility of the legal principles being employed by the government under the amendment bill.

There is no dispute over the fact that there are certain valid claims for the citizenship of Nepal. However, granting citizenship simply because someone happens to be born in Nepal before 1990 or happens to be on the electoral rolls cannot be a rational formulation. Birth is a biological act. Place of performance of this act has hardly any influence on a person's psyche. For the sake of legal convenience, some importance has been ascribed to place of birth in laws relating to citizenship. But that can be no justification for treating it as the only important factor by this law. This is true about the fact of residence as well.

As a matter of principle, for example, international law has a concept of domicile, which is not solely based on the place of birth. Domicile is based on the intentions and mind of the person concerned. One must prove one's domicile in the host country before one becomes eligible for acquiring citizenship of that country. One must also prove one's renunciation of domicile of the country of origin. Tests and qualifications must be prescribed to ensure that the person is truly domiciled in the host country.

Moreover, the proposed amendment does not even make it mandatory for the authorities to verify the antecedents of the applicant in the country of origin. The danger that this poses is a bit too obvious and is surely not far-fetched in a country that is at the neighborhood of the two most populated countries of the world.

Especially, the inflow of people from India is never going to decrease in Nepal given the size of the population of India and the ongoing pace in which the haphazard industrialization process is creating mass poverty and marginalization in that country.

If the idea is to take such drastic measures to end the citizenship problems for ever, as it is being propagated by the government, which has the habit of ruling over the Constitution, then there is no reason why the government is not coming up with a bold determination to immediately start regulating the porous international border that this tiny country shares with India, and thereby starts implementing existing immigration laws and work permit policies to control the movement of the Indian people in Nepal. The inflow of immigrants from across the border and their settlement inside Nepal will never decrease just by attempting to distribute citizenship and 'Nepalize' all these immigrants every eight or ten year.

As two distinguished critiques, Buddhi N Shrestha and Madan Regmi, emphasized this author recently (in response to his earlier commentary on the issue), nothing forbids the government of Nepal to regulate the international border in keeping with its best national interests. In fact, what is necessary now is also to withdraw the provision of the 1950 treaty under which the government of India and Nepal "agree to grant, on reciprocal basis, to the nationals of one country in the territories of the other the same privileges in the matter of movement and privileges of a similar nature."

Our compassionate neighbor has always been too demanding under this clause, and at times such demands have even ignored the long term Indian interests in Nepal. The treaty must be revised or abrogated if the Citizenship Act is being amended in good faith of the poor sovereign people of this country.

It is strange that the omnipotent government, which is so much forthcoming in certain strategic matters of Indian interest is just silent on what is going to be the fate of millions of Nepali citizens living in India without citizenship, and whether the Indian state is going to give the same treatment to the interested Nepalis living out there as at the cut off date marked for this country. Has the government of India in any case proposed similar amendment to the prevailing Indian Citizenship Act, and agreed to repatriate the Bhutanese refugees in the eastern Nepal back to their land? If this is not the basis of Nepali benevolence, then the government needs to explain why these blanket provisions are being proposed.

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