mentioned in the Section 11 of the Electoral
Rolls Act, 2006 cannot be implemented
independently contrary to the Section 5(1)
(A) of the said Act, therefore, the decision of
the Election Commission dated 2067/7/16
(November 2, 2010) does not seem to be
inconsistent with the Article 8(1) of the Interim
Constitution of Nepal, 2007 and Section 5(1)
(A) of the Electoral Rolls Act, 2006. Therefore,
the decision of the Election Commission dated
2067/7/16 (November 2, 2010) needs not be
quashed.
to CEDAW, the persons including single
women and persons with third gender
should get Nepali citizenship certificate.
Therefore, it is hereby issued an order to
make necessary provision in this regard;
b)
Nepal Treaty Act, 1990 provides that the
provisions of the Convention to which
Nepal is a party shall be enforceable as
good as Nepalese laws. This provision is
necessary. It is because, the country with
rule of law should not deviate itself from
the commitment to international law and
human rights. Since Nepal is a party to
more than 20 human right treaties, this
court for 20 years, has implemented the
provisions of international human right
treaties invoking the Section 9 of Nepal
Treaty Act, 1990. This is the provision and
objective of the Section 9 of Nepal Treaty
Act, 1990, however, some of the provisions
of several Human Rights Conventions
are not consistent with Nepal law. For
example, there is difference in the
definition of child in the Convention on
the Rights of the Child (CRC) and the
definition of child made by Nepal law.
Our Constitution has contemplated the
principle of constitutional supremacy
and our parliament is sovereign in law
making, it will be in agreement with
the intention and spirit of the Article 1
to enforce the provision of convention
through enabling law. Therefore, it is
hereby issued an order to make necessary
provision in this regard, and
c)
With the purpose that not the name of
a single eligible citizen be omitted, it
is hereby also issued an order to make
arrangement of collecting Electoral
Rolls after making easy, accessible
and effective provision of distributing
citizenship certificate to all the Nepali
Citizens eligible for obtaining citizenship
certificate.
38. Now to consider about the 3rd question,
while discussing the question No 1 and 2 it
has already been interpreted that the claim
of the petitioner for voiding the provisions of
Section 11 (1), (2) and (3) of Electoral Rolls Act,
2006 except ‘Citizenship Certificate’ and the
provision of Section 25 (A) and (B) of the same
Act being inconsistent with the provisions
of Preamble of the Interim Constitution of
Nepal, Article 1, 2, 8, 9, 10, 11, 46, 63, 65 and
129 thereof and also quashing the decision
of the Election Commission dated 2067/7/16
(November 2, 2010) for being inconsistent with
the Section 5(1) (A) could not be sustained
and therefore, it need not be issued the order
as urged by the petitioner. However, since the
right to citizenship and the voting right consist
the subject matter of national importance, the
following directive order is hereby issued in the
name of the Government of Nepal and Council
of Ministers:
a)
The plead of other interveners who joined
to this petition pursuant to Rule 42 of the
Supreme Court Rules, 1992 except that of
Pro-public has been addressed from the
decision mentioned above. However, the
plead of Pro-public that single women
should not be deprived from registering
the name in the Electoral Rolls due to
failure of obtaining citizenship certificate
seems just and reasonable. All citizens
who have attained the age as stipulated
by the law should be allowed to be a
candidate and vote in election in a
democratic system. If any single citizen
who is eligible for voting is deprived of
the voting right, such system cannot
be called the representative democracy
having participation of all citizens.
Therefore, any citizen because of being
single woman should not be deprived
from becoming a candidate and right
to voting. Constitution has provided
that discrimination must not be made
among men, women and persons of
third gender and since Nepal is a party
The copy of this order shall be supplied to the
respondents through the Office of the Attorney
General and the case file shall be handed over as
per the rule.
We concur with the above opinion.
Honorable Justice Mr. Bharat Raj Upreti
Honorable Justice Prof. Dr. Bharat Bahadur Karki
Done on Monday the 24th day of the month of Magh
of the Year 2067 (February 7, 2011)
44
Compilation of Selected Decisions of Supreme Court on
CITIZENSHIP and BIRTH REGISTRATION
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