KATHMANDU, July 11

Lawyers say the draft constitution’s provisions that bar naturalised citizens and citizens by birth from holding top constitutional posts are against the right to equality, human rights and principle of citizenship.

Article 282 of the draft constitution states that only citizens by descent can hold the post of the President, Vice-president, Prime minister, Chief justice, Speaker, Chair of the Upper House, Chief of Pradesh, Chief minister, Speaker of the Pradesh Sabha and chiefs of security agencies.

Likewise, Article 282 (2) (1) states that naturalised citizens should wait for 10 years and citizens by birth should wait for five years to be able to hold other constitutional posts.

Draft constitution does not allow naturalised citizens and citizens by birth to hold top constitutional positions in the country

Constitutional lawyer Chandra Kanta Gyawali said the draft constitution has already ensured the right to equality and hence barring naturalised citizens and citizens by birth from holding top constitutional posts would be against this right.

When a constitutional clause states, Gyawali argued, that all citizens have equal rights then there is no need to restrict naturalised citizens and citizens by birth from holding top constitutional posts. “Once somebody becomes a Nepali citizen then he/she should not be discriminated against,” Gyawali added.

Former vice-president of Nepal Bar Association Surendra Kumar Mahato and Advocate Mira Dhungana echoed Gyawali’s views.

The principle of equality, he argued, says that no citizen can have preferential right over other citizens.

Advocate Mira Dhungana said if the draft constitution’s provisions related to citizenship were retained in the final draft, it could render people stateless and could also become a cause of conflict. “The state should not discriminate between citizens. Once somebody becomes a Nepali citizen, the state should not suspect their loyalty,” she added.

Dhungana said citizenship provisions of the draft constitution were regressive and could fuel tension in society. “It seems the drafters of the constitution want naturalised citizens and citizens by birth to enjoy only economic and social rights,” she added.

Advocate Mahato said children of Nepali citizens by descent married to foreigners   would only get naturalised citizenship if for any reason one of their parents failed to acquire Nepali citizenship. This would deprive these children from holding top posts and work against the principle of jus sanguinis.

Constitutional lawyer Bipin Adhikari, however, said the draft constitution’s provision that intended to bar naturalised citizens and citizens by birth from holding top constitutional posts was by and large alright.

“It is said that the bhumiputra (son of the land) is more loyal to the country so it cannot be otherwise to give them more rights than other categories of citizens,” he argued. Adhikari said even in the US, only natural born citizens can hold the post of president.