New Constitution: Make it fair and just

Likewise, the preliminary draft Constitution 2015 does not fully guarantee women’s choice and right to reproductive health and symbolizes Nepali women as existing only to bear children

Once more, the time has come for the Nepali citizens to ensure that fundamental human rights have been respected and protected by the preliminary draft Constitution of Nepal, 2015. Nepali men and women, who believe in fairness and equality, have an opportune moment to scrutinize the draft and check that concerns important to them have been correctly addressed. Issues related to gender equality and inclusion have been of priority to the majority of the country’s population and this opportunity to provide feedback has enabled people to make sure that their concerns have been reflected.

The preliminary draft of the Constitution 2015 circulated by the lawmakers was unable to meet the people’s expectations as several progressive points that had already been included in the Interim Constitution of Nepal 2007 had been removed by the Constituent Assembly members. What happened to the progressive political leaders, who untiringly assured their constituencies that they would be true to their promises?

What has happened to the assurances given by the party manifestos stressing on institutionalizing equality and inclusion in the country? These promises are not fully reflected in the draft. People are forced to question - who is actually holding the pen?

People voted for the political parties and their leaders with the hope of seeing a new Constitution that would ensure equal rights to all Nepali citizens and leave no Nepali stateless. But the Preamble of the draft Constitution while recognizing the need to end all forms of discrimination and oppression created by feudal, autocratic, centralized and unitary systems fails to identify the patriarchal system as the root cause of women’s inferior social and legal status in the country. Recognizing the underlying causes of oppression and subjugation of women is the first step to addressing gender inequality issues.

The Interim Constitution of Nepal 2007 succeeded in raising the people’s hope for prosperous future. Women, for once, gained confidence to transfer citizenship to their children as per Article 8 (2) (b) which states that Nepali citizenship can be given to: ‘any person whose father or mother was a citizen of Nepal at his or her birth’.

This provision for unclear reasons has been replaced by Article 12 (1) (b) of the preliminary draft Constitution of Nepal 2015, which states ‘a person whose mother or father was a citizen of Nepal at the time of his/her birth and both the parents of such a person are Nepali citizens at the time of acquisition of his/her citizenship’. This means that a single Nepali mother having a child with a foreign citizen is not eligible to grant citizenship to her child by descent. So a Nepali woman bearing a child is not enough evidence that the child is Nepali. The same Article affects the father in the same way.

Similarly, Article 13 (1) states: ‘if a male foreign citizen, who is married to a Nepali citizen after the commencement of this constitution, wishes to acquire matrimonial naturalized citizenship, shall acquire naturalized citizenship as provided for in the law if he has lived in the country for 15 years, and has initiated the process of relinquishing his foreign citizenship’. Whereas, Article 13 (2) states: ‘if a foreign woman who is married to a Nepali citizen wishes to acquire naturalized citizenship of Nepal may acquire naturalized citizenship of the country as provided for in law, if she initiates the process of relinquishing her foreign citizenship’. This means that it is convenient for a foreign woman married to a Nepali citizen to acquire citizenship with naturalized process, compared to a foreign man.

In other words, Nepali men are more privileged in terms of time and requirements to obtain naturalized citizenship for their foreign spouse as compared to Nepali women. This is contradictory to the preamble of the preliminary draft Constitution 2015, which promises to remove all forms of gender discrimination. The Articles fail to meet the spirit of the preamble and furthermore create ambiguity.

Likewise, the preliminary draft Constitution 2015 does not fully guarantee women’s choice and right to reproductive health and symbolizes Nepali women as existing only to bear children. Article 43 (2) prohibits foeticide on the basis of identification of gender. There is a gross error in the use of the term ‘gender’, which actually is about the power relationship between men and women. It must not adversely affect woman’s reproductive choice.

Women’s leadership can be assured only when deliberate efforts are made. The provision of ensuring women in leadership in Articles 95, 96, 181 is encouraging. This provision should be extended to all levels of state authorities.

Society can prosper only when both men and women have dignified lives and equal opportunities to grow and thrive. Today’s debate on issues of citizenship rights, and reproductive rights has provoked a large number of women and men who believe in fairness and gender equality to raise their voices against the inequality being engrained in our upcoming New Constitution, 2015.

Fearlessly, women’s concerns are being raised from villages to the national level. From every quarter, written and verbal comments have been submitted to the political party leaders, and the CA members.

We expect these comments to be reflected so that the quest for fairness and equality finds significant space in the revised new Constitution of Nepal. We will all be watching!