HOW THE CITIZENSHIP LAW IN NEPAL IS GENDER DISCRIMINATORY 15. In Nepal, provisions relating to transfer of citizenship continue to discriminate against women. Women are yet to enjoy the right to confer, acquire, change and retain citizenship fully and independently. 16. Article 8(2)(b) of the Interim Constitution of 2007 states that anyone “whose father or mother is a citizen of Nepal at the birth of such person” is eligible for Nepali citizenship. This provision on its own implies that there is no gender discrimination in Nepal’s citizenship law. Furthermore, Article 8(3) of the Interim Constitution guarantees Nepali citizenship to foundlings. Similarly, a number of positive precedents have been laid down by the Supreme Court of Nepal (SC) in recognizing equal rights of women in acquiring and transferring citizenship to children in line with the provisions of the Interim Constitution.9 Recently in a case where the father of a child was unidentified, the SC quoting the Interim Constitution and the Citizenship Act issued an order of Mandamus to the District Administration Office requiring them to grant Nepali citizenship by descent to the plaintiff as her mother holds a Nepali citizenship.10 Moreover, the condition requiring a woman below the age of 35 to obtain the consent of her father, husband or guardian in order to obtain a passport was repealed by the Court.11 17. However, other constitutional provisions, the Citizenship Act and Rules of Nepal, and the discriminatory manner in which the law is implemented by authorities, all contribute to a reality which is discriminatory of women, with significant negative impacts on their offspring. Following is an exposition of the key issues in this regard:12 18. Women restricted in their right to convey citizenship to their children: Despite Article 8(2) of the Interim Constitution and Section 3 of the Citizenship Act stating that a person can acquire citizenship by descent if their mother or father is a Nepali citizen, other discriminatory legal provisions and practices curtail the right of women to pass on their citizenship to their children. For example, according to Article 8(7) of the Interim Constitution, the children of Nepali women and foreign men can only access citizenship through naturalization, and not by right, through descent. There is no similar restriction on men. One of the consequences of Article 8(7), is that state authorities in practice refuse to accept citizenship applications submitted only by mothers, as they require proof of the father’s identity to establish that he is not a foreigner. Though the Supreme Court has set precedents recognizing equal rights of women, including through establishing the rights of married women and single women to transfer citizenship to children,13 women continue to face discrimination. 19. The combined impact of Article 8(2) and 8(7) (and similar provisions in the Citizenship Act) is that while only the father or the father and mother together face no barriers securing citizenship for their children, it is extremely difficult for only the mother to do so. This has led to cases in which children of single mothers are left stateless. 9. 10. 11. 12. 13. 4 In Forum for Protection of Public Interests v. HMG Nepal (2005), the discriminatory birth registration and denial of citizenship for the children of Badi women in the Birth, Death and Other Personal Events (Registration) Act, 1977, was challenged. The Supreme Court of Nepal declared the words "male member" of the family appearing in section 4(1) of the Act ultra vires. In this case the order of mandamus was issued in the name of the government not to deny registration of the birth of the Badi children and to make necessary arrangements for conferring them with the citizenship certificate pursuant to Article 9(2) of the 1990 Constitution and Section 3(4) of the Citizenship Act, 1963. In Ranjeet Thapa v. Government of Nepal, unpublished, Writ no. 0035, decided on June 26, 2009, the Supreme Court issued a mandamus for issuing citizenship from the mother’s name. In Nakkile Maharjan v. Government of Nepal, decision 2064/1/4 Writ no. 0089 of 2063 BS, it was held that a married woman can obtain citizenship from her mother’s name (2011). Sabina Damai and FWLD v. Government of Nepal, Writ no 06/0703 of 27 January 2011, decided on February 27, 2011 and 2011 and Shanti Nagarkoti and Bhola Nagarkoti v Government of Nepal, Writ No. 0880 , March 24, 2014. Lily Thapa v. Government of Nepal, Writ no. 34 of 2061 B.S, decided on 2062-8-30 B.S. (December 15, 2005), N.K.P. 2062, vol. 9, p. 1054, decision no.7588. For a more detailed analysis see, FWLD and National Women Commission, Analysis of Nepalese Citizenship Laws from a Gender Perspective, 2014. See above, notes 9 and 10.