KATHMANDU: Rights activists have opposed the draft constitution’s citizenship provisions terming them discriminatory. Senior Advocate Sapana Pradhan Malla said if the citizenship by descent was conferred on children on the basis of Nepali nationality of both the parents, as stated in Article 12 (1) of the draft constitution, also known as the ‘and’ provision, it could render some people stateless.

She said the ‘and’ provision ended the privilege of Nepali father who could transmit Nepali nationality to his children irrespective of his wife’s nationality till now. Another constitutional lawyer Chandra Kant Gyawali echoed her view.

Provision of naturalised citizenship cannot be deemed a right but is merely a state’s

discretion

— Sapana Malla,Senior Advocate

Another flaw in this Article is that if a foreign woman married to a Nepali man refuses to obtain Nepali citizenship, their children will not be eligible to obtain Nepali citizenship by descent, Malla argued.

According to her if one spouse abandons another spouse or if a father or mother does not help his/her children to acquire Nepali citizenship, or if a Nepali father does not accept a child, the ‘and’ provision can render children of such parents stateless.

Senior Advocate Malla said there were provisions for naturalised citizenship for the children of Nepali nationals married to foreign nationals in certain conditions, but provision for naturalised citizenship could not be deemed a right but is merely a state’s discretion.

“There are many people who have applied for naturalised Nepali citizenship certificates in recent years but none of them have received such certificates,” she argued.

Malla said there were 119 countries where citizenship is conferred on the basis of either mother or father’s nationality.

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 the Pradesh, Chief Minister, speaker of the Pradesh Sabha and chief of the security agencies.

She said ‘and’ provision would violate Convention on the Elimination of All Forms of Discrimination against Women and Child Rights Convection which Nepal is a party to.

Former member of National Human Rights Commission Sushil Pyakurel said ‘and’ provision was reflective of leader’s discriminatory mindset and there was no justification for not having the ‘or’ provision.

Nepali Congress CA member Ramesh Lekhak, who is also a member of the Constitution Drafting Committee said the draft constitution intended to give naturalisation citizenship to foreign women married to Nepali men and not to foreign men married to Nepali women but that was a worldwide practice. He said the CDC established a theory that if one wants to be a citizen by descent, both his/her father and mother should be Nepali citizens and there was nothing wrong with it. “But there are some provisions relating to citizenship that I do not like. I will express my opinion about them when time comes,” he added.