Kathmandu, May 9
The Supreme Court’s divergent decisions on a circular issued by the home ministry in the last month have created confusion among the general public, say legal eagles.
In one month, the SC has changed its ruling thrice on whether or not the home ministry’s circular that allowed issuance of citizenship by descent to children of citizens by birth should be stayed.
On April 3, the home ministry issued a circular that ordered all district administration offices to issue citizenship by descent to children of citizens by birth.
On May 7, a division bench of justices Ishwar Prasad Khatiwada and Sushmalata Mathema stayed the implementation of the circular as demanded by Senior Advocate Bal Krishna Neupane in a supplementary writ petition.
Earlier, a division bench of justices Hari Krishna Karki and Bam Kumar Shrestha had vacated the interim order issued by Justice Purushottam Bhandari on April 8 in the same case.
Senior Advocate Surendra Kumar Mahto argued that the stay order passed by the bench of Khatiwada and Mathema was wrong because it did not conform to the principle of irreparable loss. “Often the court issues a stay order if there is a danger of irreparable loss to the case party.
In this case, the children of citizens by birth will suffer irreparable loss if they do not get their citizenship certificate, but for the state there is no risk of irreparable loss,” he said.
Mahto added that a division bench of the SC could not rescind the order/verdict of another division bench unless there was a compelling reason for doing so, but in this case there was no such reason. “In the case filed by Borna Bahadur Karki, the SC stayed the home ministry’s circular only to the extent it could allow citizenship by descent to those who had obtained citizenship by birth from officials who were not from the home ministry in 1997.
This means there is no substantial difference in the situation and hence no ground for the SC to change its ruling issued by the division bench of Hari Krishna Karki and Bam Kumar Shrestha.”
Executive Director of Forum for Women, Law and Development Sabin Shrestha said divergent decisions of the Supreme Court created confusion in the minds of the public.
Shrestha said the SC’s latest stay order disappointed the children of citizens by birth who had not been able to get their citizenship for no fault of theirs. “Article 10 (1) of the constitution stipulates that no citizens shall be deprived of their citizenship certificate and as per Article 11 (3) children of citizens by birth are entitled to citizenship by descent,” Shrestha said.
He added that nothing could justify a situation that could render so many people, whose parents are Nepali, stateless.
“This is a case of people whose fathers and mothers are Nepali citizens, but they are not getting Nepali citizenship. Where should they go to claim their nationality? Should they go to the USA or China to claim citizenship?” he wondered.
Shrestha said the constitution had set a deadline of three years to formulate laws that were required to implement the constitution.
The government should have ensured enactment of new citizenship law by March 2019, yet it did not do so, he added.
“Should the children of citizens by birth be deprived of citizenship if the state does not enact a new citizenship law for another 25 years?” he wondered.
Chief Attorney of Province 2 Dipendra Jha said divergent decisions/orders of the SC in the same type of case only created confusion in the minds of the public.
The apex court had directed the government to issue citizenship by descent to children of citizens by birth, but has now ruled against its own verdict, Jha pointed out.
He said divergent decisions of the SC could erode the credibility of the judiciary.
A version of this article appears in print on May 11, 2019 of The Himalayan Times.
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