September 2022
In this blog, Pranaya SJB Rana, editor of The Record Nepal, delves into the recent political crisis around Nepal’s Citizenship Amendment Bill, analysing how the intersection of patriarchy and xenophobia works to perpetuate the exclusion of a significant section of the population from their rights to citizenship.
While it is often stated that there are multiple causes of statelessness (state-succession, conflict of laws, gender-based or xenophobic discrimination, etc.), rarely are the intersections between these different factors critically examined in the discourse on statelessness. In this blog, I look at recent political struggles in Nepal to unravel what lies behind the country’s tumultuous path toward an agreed-upon Citizenship Act, unpacking some of the xenophobic and conservative political attitudes which shape the contents of the Act, and how women’s equal nationality rights have become collateral damage in that process. The struggle to forge consensus around Nepal’s (long overdue) Citizenship Act culminated this week in an unprecedented turn of events which saw the President go against her constitutional duty to authenticate a bill to amend the Act.
Here, I will scrutinise the intentions, or motivations, of politicians who on the surface appear to be in support of women’s equal citizenship rights, turning the notion of ‘untrustworthy’ women – an idea that shapes so much of the discourse around citizenship rights – to the reality of untrustworthy politicians. This blog thus raises two questions about Nepal and other contexts of gender discriminatory nationality laws: how can the fight for women’s equal nationality rights fully incorporate an anti-xenophobic lens, and; who should activists and stateless people trust politically, and when?
Although estimates on the population of stateless people in Nepal remain a complicated task, for thousands, if not millions, of Nepal’s adult population, statelessness is a lived reality. The fight to gain citizenship has been a long and arduous one. Reform efforts and personal attempts to acquire citizenship through local administrative offices have been beset by strong patriarchal attitudes undermining women’s and child rights, and by deep-seated xenophobia against Madhesis – Nepalis from the southern plains bordering India, who share familial, cultural, and linguistic ties with populations across the border in the Indian states of Bihar and Uttar Pradesh.
Madhesis have long been seen by political elites in Kathmandu’s hilly region as political ‘others’ who are loyal to India despite having lived for generations in Nepal. Since the 60s, being ‘Nepali’ has often been equated to being from the hills, dressing a certain way, and speaking Nepali, all conditions that often exclude Madhesis. This narrow definition, coupled with jingoism, has manifested in a paranoid delusion called ‘Fiji-isation’. Fiji-isation refers to the historical rapid growth of the Indian population in Fiji that ultimately changed the island nation’s demographics. Given the open border with India, and the shared cross-border cultural ties in that region, nationalist political parties believe Nepal will experience the same fate as Fiji should citizenship provisions be loosened.
Then, there is the state’s mistrust of women, exemplified in legislation that makes it exceedingly difficult for women to pass citizenship to their children independent of their husband, or the father of their child. Nepal’s newest constitution, promulgated in 2015, allows for children to receive citizenship through their father ‘or’ mother, but it also imposes conditions that require the father to be “untraceable” when transfer of citizenship is through the mother. No such conditions are imposed when citizenship passes from father to child.
This state-sponsored suspicion of women, instituted in the 2015 constitution, was continued in the most recent amendment to Nepal’s Citizenship Act, even as it sought to alleviate the statelessness of a sizeable population. The amendment bill, passed by both houses of parliament in July 2022, would provide citizenship to the children of all those Nepalis whose parents acquired citizenship through a one-time jus soli provision enacted by the Citizenship Act in 2006 – an attempt to rectify the statelessness status of second and third-generation settled migrants. However, because Nepali citizenship is almost exclusively provided through jus sanguinis (dependent upon proving multi-generational descent), those who had acquired jus soli citizenship almost fifteen years ago have thus far been unable to pass citizenship to their children. Children from the Madhes, where there is a strong history of migrant settlement, were most predominantly impacted by this legislative omission. At the same time, however, the amendment bill retained conditionalities on women passing citizenship to their children.
The amendment bill was duly forwarded to President Bidya Devi Bhandari for authentication, as mandated by Nepal’s constitution. Although a ceremonial role, the president’s seal is required on all bills that are to become law. President Bhandari, nevertheless, sent back the bill to Parliament for a ‘review’, which the constitution also allows. Bhandari took issue with various provisions in the amendment bill, particularly the requirement that women who wished to pass citizenship to their children independent of their husbands had to sign a declaration attesting that the father was missing or not in the picture and be liable for punishment should the father later be found. President Bhandari protested that this provision harmed women’s rights to privacy, self-respect, and dignity.
There are, however, suspicions that Bhandari’s concerns were about more than just women’s dignity. The President has never previously supported the ‘citizenship through mother’ movement, at times even expressing outdated beliefs that a woman’s place is beside her husband. Furthermore, when the previous government had forwarded an almost identical amendment bill – via ordinance – to Bhandari for approval, she had authenticated it without barely a day to mull it over. That amendment was later nullified by the Supreme Court on the grounds that an issue as sensitive as citizenship needed broader debate in Parliament.
There was, however, one key difference between the amendment bill passed by the previous government in 2021 and the one by the current government which may shed some light on the President’s motivation in refusing to authenticate the latest bill. The previous bill included a seven-year ‘cooling off’ period for foreign women married to Nepali men, preventing them from automatically obtaining their husband’s citizenship. The current bill did not include this cooling off period, allowing foreign women to immediately be eligible for Nepali citizenship upon marriage. For nationalist forces, removing the seven-year waiting period would only abet Fiji-isation, the fear being that Indian women from across the border would flood into Nepal and seek immediate citizenship. Many believe that this is what Bhandari really objected to and her concerns about women’s rights are just fluff.
When the amendment bill came back to parliament for a review, both Houses duly passed it again with no changes, a clear rebuff of Bhandari’s concerns but well within the rights of the sovereign parliament. This time, Bhandari was mandated by the constitution to authenticate the bill within 15 days. She simply sat on the bill and allowed the 15-day deadline to expire, plunging Nepal into a political crisis. The sitting President had openly violated the constitution.
To many, President Bhandari’s actions have been in bad faith. Few people genuinely believe that she was so concerned about women’s rights that she refused to authenticate a bill passed by both houses of Parliament, especially when she had already done so a year earlier for an almost exact bill. Her concerns seem to align with that of the Communist Party of Nepal-Unified Marxist Leninist, CPN-UML for short. The CPN-UML is a nationalist party led by an openly xenophobic man who has long opposed opening up citizenship provisions. It is also Bhandari’s former party.
Citizenship thus remains a deeply complicated issue. Passing the amendment would provide citizenship to those who desperately require it, but it would also codify, once again, the unequal treatment of men and women in contemporary Nepal. But in a country like Nepal, where legislation is slow and nationalism often trumps equality, partial reforms are perhaps necessary. The bill would’ve immediately benefited thousands of Nepalis even as the fight for gender equality, which requires a more sustained struggle to amend the constitution itself, would have continued.
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More from the Critical Statelessness Studies Blog Series
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