KATHMANDU, JUNE 11
The Supreme Court's stay on the implementation of the Citizenship Act (Amendment) Ordinance has kicked up a row, as rights activists have joined thousands of those affected by the order in questioning the order.
Executive Director of Forum for Women, Law, and Development Sabin Shrestha said he received dozens of messages from eligible citizens - children of citizens by birth and children of Nepali mothers whose fathers cannot be identified - expressing their disappointment and frustration after the constitutional bench of the Supreme Court stayed the implementation of the ordinance. Shrestha said the constitutional bench stated balance of convenience (the court has to balance and weigh the mischief or inconvenience to the either side before granting or withholding an injunction) as one of the reasons for staying the citizenship ordinance, but the court did keep in mind the problems faced by eligible citizens due to lack of a new federal law.
"Article 10 of the constitution stipulates that no citizen shall be deprived of their citizenship and Article 304 stipulates that any law inconsistent with the constitution shall be rendered invalid one year after the first session of the Parliament under the new constitution," said Shrestha. He added that the apex court issued the interim order without taking note of these provisions. "Not granting citizenship to eligible citizens is a violation of the constitution," he said.
Chief Attorney of Province 2 Dipendra Jha said the constitutional bench, which had important role in safeguarding people's fundamental rights, should also have to suggest alternatives while staying the citizenship ordinance. "Thousands of people have not been able to obtain their citizenship due to lack of a federal citizenship law. Without citizenship, they cannot avail of any state services.
Should the SC not suggest any alternatives for these eligible citizens who are being rendered stateless?" he asked.
He said if the argument that the citizenship ordinance should be stayed because the government evaded the Parliament applies, then the same argument should apply to the Constitutional Council Act (Amendment) Ordinance also and the appointments made under this ordinance should be invalidated.
Advocate Mohan Kumar Karna said he agreed with the Supreme Court's observation that citizenship issue should be resolved through regular legislative process, but since the SC had not stayed other ordinances issued by the government evading parliamentary process, the court seemed to be ignoring the interests of marginalised and oppressed groups and serving the interests of the ruling class.
"Citizenship is a permanent process and even a minute's vacuum in the distribution of citizenship certificates is not acceptable.
Even five years after the constitution was promulgated, a new federal law has not been enacted and children of citizens by birth and children of Nepali mothers whose fathers cannot be identified are not being able to get citizenship," he argued. He said though the ordinance had copied the exact provision of the constitution, yet it was stayed.
Rights activist Tula Narayan Shah said the citizenship issue, which had been a key agenda of Madhes politics, often leads to polarisation between Madhesi and hill population.
He said even when the constitution guaranteed citizenship to children of citizens by birth, district administration offices were not issuing citizenship certificates to eligible citizens and the DAOs were not abiding by court precedents on citizenship issues.
A version of this article appears in the print on June 12, 2021, of The Himalayan Times.
