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Kathmandu Thursday April 26, 2001 Baishakh 13, 2058.
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Supreme Court presents HM opinion on Citizenship Bill
By Pramod Poudel
KATHMANDU, April 25 - The Supreme Court today
submitted its opinion to His Majesty the King Birendra declaring that the Bill proposing
to make sixth amendment to Citizenship Act - 2020 clearly violates the Constitutional
provisions.
The 14-page opinion was formed unanimously by
a special bench comprising of Chief Justice Keshav Prasad Upadhyaya and Justices Laxman
Prasad Aryal, Kedar Nath Upadhyaya, Krishna Jung Rayamajhi, Govinda Bahadur Shrestha,
Arvind Nath Acharya and Hari Prasad Sharma.
King Birendra, making use of Constitutional
article 88 (5), had sought opinion of the Supreme Court (SC) on February 20 on whether
clause 2 of the proposed Citizenship Bill 2057 BS (Nepali Calender) passed by the
Parliament earlier violated article 8 & 9 of the Constitution. The King had sought
advice from the court after consultation with various political leaders.
"Clause 2 of the proposed Bill-2057 BS
(Finance Bill) to amend the Nepal Citizenship Act-2020 BS is not seen being in accordance
with the article 8 & 9 of the Constitution of Nepal 2047 BS," states the opinion
sent to the palace on Wednesday.
The opinion sent today said that the article
8 of the present Constitution incorporates article 7 of the Constitution of 2019 BS and
clause 3 of the Nepal Citizenship Act (NCA)-2020 BS and that any attempts to make
amendments in clause 3 of NCA would be an attempt to amend the Constitution itself.
The opinion said that it is the law that
should be in accordance with the Constitution and not the other way round stressing that
the proposed Bill crosses the Constitutional provisions. "The proposed Bill
incorporates more than what the present Constitution spells out," said the opinion.
Clause 2 of the proposed Bill includes
"and birth" in addition to "descent" in the title "citizenship
through descent" of the clause 3 of NCA which clearly points that the proposed Bill
tries to incorporate more than what is clearly spelt out by the present Constitution,
states the opinion.
The opinion also clearly points out that the
inclusion of sub-clauses 6, 7, 8, and 9 in the proposed Bill which is not in the NCA, is
also an attempt to amend the present Constitution.
Sub-clause 6 of clause 2 of the proposed Bill
states that a person through descent can get Nepali Citizenship even if his father has not
obtained a Nepali citizenship but the clause 3(1) of NCA and article 9(1) of the
Constitution categorically states that only a person whose father is a citizen of Nepal at
his birth is eligible for citizenship by descent.
The opinion remains silent on the issue
regarding whether the proposed Bill could be termed as a Finance Bill or not. "It is
better for the court to give its opinion to His Majesty on just what is being asked,"
the opinion said.
However Advocate Bal Krishna Neupane said
that the court could have gone ahead dwelling upon whether the proposed Bill could be
considered a Finance Bill. The court said that the Monarch making use of article 54 (3)
may send messages to either or both the Houses of Parliament. The opinion explicitly
states, as per article 44 of the Constitution that His Majesty is an indispensable part of
the Parliament.
Even the opinion paper has clearly mentioned
that the Monarch resorting to 43 (2) of the Constitution may make recommendations to, or
appreciations of, or admonitions to, the Council of Ministers on matters of national
importance. After the Supreme Court’s opinion became public, Senior Advocate Ganesh
Raj Sharma said that every body should understand that the Supreme Court is the sole unit
for preservation and conservation of the Constitution. "It is again proved that there
is a constitutional way out for any problems in a democratic society," said Sharma.
"The Monarch can now send the Supreme
Court’s opinion to the Parliament or the Cabinet resorting to article 54 (3) or 43
(2) of the Constitution respectively," said Advocate Bal Krishna Neupane.
Dwelling upon what is the fate of the
proposed Bill Advocate Bala Ram KC said that the Bill now stands dead after the Supreme
Court’s such decision. The proposed Bill was passed by the Lower House when it was
first introduced, only to be sent back by the Upper House. It was then when most of the
opposition parties demanded an amendment but the Nepali Congress government with its
majority pushed the Bill through terming it as a Finance Bill. A Finance Bill cannot be
sent back to the parliament by the King. The Bill was endorsed by the parliament on July
26 last year as the Finance Bill and was forwarded for the Royal assent in mid-January
this year.
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