NATIONAL10 [RELIGION (Spotlight Weelky)]

Awaiting Court's Verdict

After two days of hearings on the citizenship amendment bill, many new constitutional queries emerge

By KESHAB POUDEL

Although the House of Representatives passed a bill on such a sensitive issue as citizenship without taking into consideration the opinion of the citizens, the hearings in the Supreme Court provided the opportunity to start a nation-wide debate on the constitutional and legal aspects of the bill.

Although King Birendra's letter to the apex court is just concerned with whether the bill is in consonance with the constitution, lawyers and eminent constitutional experts dwelled on many other aspects, including whether the legislation could be termed a finance bill, whether the King had any other option and whether there was any other way out.

In view of the country's geography, sandwiched between Asian giants China and India -- the world's two most populous countries -- there has been growing concern that any change in the existing legal provisions on citizenship would alter the demographic profile of the small Himalayan kingdom. This was precisely what eminent lawyers pointed out in the court in the course of presenting their views. The lawyers put constitutional options and other issues before the seven-member bench of the Supreme Court.

Supreme Court : All eyes on it

Headed by Chief Justice Keshab Prasad Upadhyaya, the bench included justices Laxman Prasad Aryal, Kedarnath Upadhyaya, Krishna Jung Rayamajhi, Govinda Bahadur Shrestha, Hari Prasad Sharma and Arbinda Prasad Acharya.

As the arguments started getting repetitive, the mood in the court was getting weary. But that changed as soon as eminent constitutional lawyer Ganesh Raj Sharma raised some important --and previously unheard -- arguments.

Does the King have the sole option of sending any controversial bill to the Supreme Court for its opinion or does he have other choices? Sharma maintained that the King could have returned the bill to a joint session of parliament with a message instead of sending it to the apex court.

Sharma argued that the Constitution of the Kingdom of Nepal 1990 gives the right to the King to send such a bill to a joint session of the house.

After a long controversy, King Birendra sent the bill to the apex court seeking its opinion on whether Clause 2 of the Citizenship Amendment Bill 2020 is in consonance with Articles 8 and 9 of the constitution, under the Article 88(5).

Article 88(5) says: If His Majesty wishes to have an opinion of the Supreme Court on any complicated legal question of intrepretation of this Constitution or of any other law, it shall, upon consideration on the question, report to his Majesty its opinion thereon.

In two days of hearings at the Supreme Court, most of the senior advocates argued over the periphery of the bill. Sharma, however, brought up constitutional alternatives in facing such a situation.

When all his colleagues confined the debate to whether Clause 2 of the bill is against the spirit of the constitution or not, Sharma argued that the King also has the right to send the bill to a joint session of parliament with a message before sending it to the court.

According to Article 54(3) of the constitution, His Majesty may send a message to either of both houses of parliament. The House receiving such message shall, as early as possible, consider the matter mentioned in the message and submit its opinion to His Majesty.

Contradictory to the opinions of his colleagues that a finance bill cannot be sent to the joint session of parliament, senior advocate Sharma argued that King can send any issue to the joint session of the parliament with a message. He said that constitutionally, the King could still send it to the joint session even after receiving the apex court's opinion.

"The court also considered the effect of its opinion and opened the way to referring the bill again to parliament," said Sharma.

Although the King sought the court's opinion on Clause 2 of the bill, lawyers argue, the court reply has to incorporate such matters as whether the legislation is a finance bill and other constitutional issues.

The lawyers also question the role of Speaker of House of Representatives to term every kind of bill as a finance bill. If every piece of legislation is call a finance bill, many constitutional provision will be useless. "It cannot be accepted as a finance bill," said advocate Sharma. If it is a finance bill, it has to be tabled by finance minister." The fact that he allowed the home minister to table the citizenship amendment bill, which is related to sovereignty and internal matters, forces us to consider whether this is part of the 'politics' of the speaker."

Senior advocates Motikaji Sthapit, Damannath Dhungana, Krishna Prasad Panta, Surbagya Ratna Tuladhar and advocate Bishowkanta Mainali also argued that the bill is against the spirit of finance bill and is ultra virus.

"It can never be termed as a finance bill. It has already been amended five times in the past as an ordinary bill. Even in 2048 when it was amended for the fifth time, it passed through a process of an ordinary bill. But this is the only time that the bill has been put through the process of a finance bill," said Mainali.

The objectives of the bill is itself against the constitution, as it was introduced to award citizenship to offspring of natural citizens. "The sixth amendment was presented to provide citizenship to the sons, daughters and relatives of the natural citizens and those who are in the process of naturalization and their children," said Mainali, who pleaded as amicus curie. "Section 3 of the Citizenship Act 1964 is now incorporated as a part of the Constitution. The clause put the word after decent and birth. That birth posed is prospective effect which includes birthright to the naturalization citizens."

Some of the amicus curie, however, disagreed with his arguments and suggested that King cannot hold a finance bill for a such long time. "Constitutionally the King is bound to give Royal seal to a finance bill," said senior advocate Mukunda Regmi." The court cannot do anything when the constitution itself speaks about the provisions governing a finance bill."

"If the bill is against the spirit of the constitution, the court can declare it as such after the royal seal is affixed," said Regmi.

In such a situation, what opinion should the apex court give to the king on the controversial Citizenship Amendment Bill? Simply, the court can send its recommendation to the King that the bill should be forwarded with a message to a joint session of parliament.

Toeing the line of Regmi, senior advocate Biplendra Chakrabarti argued that the King has no option other than to give his assent to the bill. "The King cannot return a finance bill and it is the prerogative of the speaker of the House of Representatives to specify the nature of a bill," said Chakrabarti.

Other advocates argued that there was no need to amend the act just to simplify the procedures of distributing citizenship. "It is not legal or other complications but the inefficiency of the administration that hampers the process of distribution of citizenship certificates," said Dhungana. "The court must warn the speaker not to take an illegal path," said Dhungana.

Attorney-General Badri Bahadur Karki defended the bill on the ground that there are a large number of people who have not been able to acquire citizenship just because his or her father does not have a citizenship certificate.

"As our citizenship laws do not make it compulsory to obtain citizenship certificate. There are a number of cases where the father failed to obtain the certificate. Now because they are dead, their sons and daughters are being denied the chance of obtaining citizenship certificate. The proposed bill simply attempts to remedy such problems," he said.

A son or daughter of a deceased father would have to prove the status of the citizenship of his or her father. In the absence of such provisions, sons and daughters of fathers who died before obtaining the citizenship certificate would never get their citizenship certificate. The whole game is to politicize the issue," said Attorney-General Karki. "The amendment is needed to pave the way for a large number of Nepalis to have failed to get citizenship certificates because of parental negligence."

As it is a highly sensitive issue, citizenship must be debated before changing any procedures. The debate is revolving more or less around politics rather than the difficulties in the legal procedures.

According to Article 8 of the Constitution of Nepal 1990, Citizenship at the Commencement of the Constitution: At the commencement of this Constitution, the following persons who have their domicile in Nepal shall be deemed to be citizens of Nepal:-

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 of Section 6 of the Nepal Citizenship Act, 1964.

Article 9 speaks on Acquisition and Termination of Citizenship after the commencement of the Constitution:

(1) 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.

2) 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 is traced, be deemed to be a citizen of Nepal by descent.

3) Whenever any territory is acquired by way of incorporation into the Kingdom of Nepal, every person of having his domicile within such territory shall become a citizen of Nepal, subject to provisions of existing laws.

4) After the commencement of this constitution, the acquisition of citizenship of Nepal by a foreigner may be regulated by law which may, inter alia, require the fulfillment of the following conditions:

a) that he can speak and write the language of the nation of Nepal;

b) that he is engaged in any occupation in Nepal;

c) that he has renounced his citizenship of another country and

d) that he has resided in Nepal for at least fifteen years.

5) Notwithstanding anything contained in Clause (4), a woman of foreign nationality who has a matrimonial relationship with a Nepalese citizen and who has initiated proceedings for renunciation of her foreign citizenship, and any other person, who has renounced the citizenship of Nepal and has gone to a foreign country who has renounced his foreign citizenship, of Nepal.

6) Notwithstanding anything contained in sub-clause b) and d) of Clause 4, the son or daughter of descendant of a citizen of Nepal and who has resided in Nepal for a period of at least two years may acquire the citizenship of Nepal on such terms and conditions as may be prescribed by law:

Provided that this clause shall not be applicable in the case of descendants of naturalized citizens.

7) The termination of the citizenship of Nepal shall be as determined by law.

What Clause 2 of the Nepal Citizenship Act Amendment 2056 says:

In Clause 3 of the Citizenship Act by and birth is added in the main content of descendants.

Likewise in the same clause of after sub clause 5, 7,8 and 9 are added and in sub-clause 6 and anybody who was born in Nepal under subclause 1 but the father does not acquire the citizenship certificate should get the Nepalese citizenship certificate by birth.

Likewise Under the subclause 7,8 and 9, many new measures are introduced to pave way to acquire the citizenship certificate.