Harka Gurung, a senior scholar, once emphasized political boundary and citizenship as two bases of national identity. On both counts, he said, the situation of Nepal seemed precarious.

This precariousness owes to several factors. The porous international border that this tiny country shares with India is still unregulated under a treaty forced on it during the transition of 1950. While the inflow of immigrants from across the border and their settlement inside Nepal has never decreased, the attempt of the government to distribute citizenship and ‘Nepalize’ all these immigrants for once and ever (to finally stop the floodgate) has never been successful. Besides, the issue of the encroachment of Nepal’s international border is a regular feature in the local news. There are still some parts of Nepal under foreign illegal occupation. Indeed, the country is shrinking physically, and there is no voice against it.

On the 56th year of the 1950 treaty, while the country is in another period of transition, attempts are being made again to play out Nepal demographically. Efforts were made, although unsuccessfully, to propose a provision in the draft Interim Constitution granting Nepali citizenship to all individuals who participated in the referendum of 1980 or took part in the elections after 1990 or whose father or mother is born in Nepal. While the later formulation has some logic, the former two formulations seem to have been imposed on the drafting team after carefully sidelining the citizenship provisions that existed under the 1990 Constitution.

Granting citizenship simply because someone happens to be on the electoral rolls cannot be a rational formulation. The law of Nepal and for that matter any other country (ruled by itself) cannot recognize an electoral roll to be the exclusive proof of citizenship. It is a document created for an entirely separate purpose and with a view to enable the residents to cast his or her vote in a given election. The claim of citizenship has to be established the way paternity or maternity is to be established, and simply because somebody has spent some years in a foreign country does not entitle him or her to the citizenship certificate from this state. This is the bottom line everywhere.

The existing Constitution does not give the government the power to gift the citizenship en masse to foreigners. Every claim for citizenship must be judged on case to case basis and on the strength of the merit of each claim. In most parts of the world, the burden of proving whether one is an illegal migrant or not falls on the very person. There is good and sound reason for placing the burden of proof upon the person concerned who asserts to be a citizen of a particular country.

In order to establish one’s citizenship, normally he or she may be required to give evidence of his/her date of birth, place of birth, name of his/her parents, and their place of birth and citizenship. Sometimes the place of birth of his/her grand parents may also be relevant. All these facts would necessarily be within the personal knowledge of the person concerned and not of the authorities of the state. After s/he has given evidence on these points, the state authorities can verify the facts and can then lead evidence in rebuttal, if necessary.

There are definitely some genuine citizenship claims of people in Madhesh which must be settled by all means. Those who have valid claims must get citizenship certificates, and genuine citizens must be provided with the certificate as soon as possible. If necessary, the state should also consider making legal aid available to the concerned claimant on the recommendation of the civil society. But the attempt of granting citizenship en masse and outside the normal legal process is not only questionable but also a serious breach of the loyalty and trust that politicians are expected to demonstrate towards the nation.

Obviously, a lot of money is being spent to keep the public opinion under control in this matter and change Nepal demographically. This is the reason that Nepal never had anti-foreigner agitation as we happen to see around the world every year. Even in India, for example, in the late 1970s and early 1980s anti-foreigner agitations were led by the All Assam Students Union (AASU) which protested the presence of hundreds of thousands of illegal foreigners from Bangladesh in the electoral rolls.

For those of the politicians, and civil society leaders, who are proud to be more Indian than the Indians themselves, suffice it to remind them that in India itself there is a Supreme Court order since April 2002 which maintains that foreigners cannot claim the right to Indian citizenship on the ground that they are enrolled in voter lists, have ration cards and that they have been living in India for a long time. By equating the influx with external aggression, the Supreme Court of India has also pinpointed that the impact of such large scale influx is the root cause of insurgency as well as economic deprivation of the Northeastern parts of the country.

The Indian Supreme Court has in fact made a telling observation: “The report of the Governor, the affidavits and other material on record show that millions of Bangladeshi nationals have illegally crossed the international border and have occupied vast tracts of barren or cultivable land, forest area and have taken possession of the same in Assam as well. Their willingness to work at low wages has deprived Indian citizens and specially people in Assam of employment opportunities.”

Nepal has been very modest in citizenship matters. Besides, many non-Nepalis have already acquired citizenship by bribing the authorities, and illegally procuring documents that allow them to claim citizenship certificates. Limited police capacities to combat document fraud and lack of administrative systems necessary to properly document immigrants in the first place has enabled many people to acquire Nepali citizenship. Weak documentation systems have led not only to illegal entry of economic migrants (from beggars to the businessmen), terrorists, and other criminals via document fraud, but to massive electoral fraud as well, which has serious implications for the conduct of democratic politics.Sovereignty is nowhere more absolute than in matters of emigration, naturalization, nationality, and expulsion. It is at the threshold of a state’s membership and its territorial boundaries that the rules of entry and residence apply.

If influx continues and citizenship certificates are distributed the way they are being discussed, Nepalis will soon be swamped, and there would be no Nepal left for the natives.

[lawyers_inc_nepal@yahoo.com]