NATIONAL 3 -(Spotlight Weekly)

Triggering Off Controversy

Amendment of Citizenship Act is inconsistent with the spirit of the Constitution

By KESHAB POUDEL

In its fifth bid to relax distribution procedure of citizenship certificate, the government finally passed the Bill to Amend the Citizenship Act 1964 through the House of Representatives.

House of Representatives : Misusing the majority.

Passed by consensus in the lower house, the bill was rejected by the National Assembly but the government re-tabled the bill in the lower house again paving the way to pass it. The main opposition party UML, which usually stalled the house proceedings for days on small matters, simply boycotted the proceeding and cleared the road to pass the bill.

"Although all major political parties supported the bill which is against the spirit of the Constitution of Kingdom of Nepal 1990, I will file the case in the Supreme Court to declare it null and void," said advocate Bal Krishna Neupane, who has already pre-empted the past four attempts of various government to relax the constitutional provision.

According to the new amendment in the citizenship act 1964, many new clauses and points are included which will make it possible for foreigners to acquire Nepalese citizenship easily.

According to Article 9 (1) of the Constitution of the Kingdom of Nepal 1990, "A person who is born after the commencement of this Constitution and whose father is a citizen of Nepal at the birth of the child shall be a citizen of Nepal by descent."

According to the amendment of the citizenship act, however, the citizenship of the father is no more the prerequisite for acquiring citizenship.

Understanding the sensitivity of the issue and geographical vulnerability, the framers of the Constitution had made detailed attempt to regulate citizenship law. The Constitution of Nepal 1990 makes clear that any laws to be enacted by the parliament must be subject to the paramount principles of citizenship set out in part 2 of the constitution.

"Parliament does not have a free hand in enacting laws to define citizenship but must abide by the rules laid down in Article 8 and 9 and to a much more minor extent, article 10 in the Constitution," said a lawyer. The most significant piece of current legislation in Nepal on citizenship is the Nepal Citizenship Act 1964.

Any person who is a citizen of Nepal by virtue of Article 7 of the Constitution of Nepal 1962 or Section 3 of the Nepal Citizenship Act, 1964 is eligible for the citizenship.

The article 9.2 of the 1990 Constitution says every child who is found within the kingdom of Nepal and the whereabouts of whose parents are not known shall, until the father of the child traced, be deemed to be a citizen of Nepal by virtue.

For the most part, framers of the Constitution intended the citizenship provisions in the new constitution to reflect the position immediately prior to 1990 and the Constitution laid down some special principles.

a) Any person who is a citizen of Nepal by virtue of Article 7 of the Constitution of Nepal (1962) or section 3 of the Nepal Citizenship Act, 1964.

b) Any person who has acquired naturalized citizenship of Nepal by virtue section 6 of the Nepal Citizenship Act 1964.

Certain arrangements relating to the citizenship which were set out in the Constitution of Nepal 1962 and the Nepal Citizenship Act 1964 have been included in the Constitution of 1990. Article 7 of the 1962 Constitution gave an entitlement to citizenship to every persons: a) who, at the entry into force of that Constitution in December 1962 b) either had his domicile in Nepal c) or had been born in Nepal d) or whose parents or either of them were born in Nepal and a woman who had any kind of matrimonial relations with a citizen of Nepal in accordance with the Nepalese laws and custom or had already obtained a certificate of citizenship in accordance with the laws of Nepal.

The new act, which is yet to receive assent by the King, is still to be implemented in the country. According to constitutional lawyers, the new act is against the spirit of the Constitution.

Following the commencement of the Constitution of Nepal, all the government have made attempts to weaken the constitutional provisions by introducing new laws but the court quashed all the previous attempts.

For the first time in 1990, the interim Prime Minister Krishna Prasad Bhattarai tried to introduce the rule allowing all the persons who were included in the voters list of 1979 referendum to get citizenship. Then Girija Prasad Koirala attempted to justify Bhattarai's move in 1992. After they were quashed by the apex court, Sher Bahadur Deuba issued new rules in 1994.

Lokendra Bahadur Chand and Bamdev Gautam duo government once again issued regulations asking to distribute citizenship certificate to more than 3.7 million people based on recommendations by Dhanpati Commission formed by earlier Prime Minister Manmohan Adhikary. Late Dhanpati, who is himself a Burmese returned, recommended to issue the certificate to 3.7 million people.

Strangely, Gautam who was the Deputy Prime Minister and Home Minister during the 1997 government that tried to hand out citizenship certificate to 3.7 million people, now is calling Nepal Bandh (on August 2) to protest against the amendment of the act.

Girija Prasad Koirala's recent move is the fifth one in the series. Although the bill was tabled during the time of then Prime Minister Krishna Prasad Bhattarai, it was Koirala who submitted it to the house for ratification.

Although Nepali Congress leaders defend the bill, it will make the country more vulnerable to criminal-minded people from neighboring country who can acquire Nepali citizenship and create trouble.