the petitioner is qualified to obtain Nepali
citizenship certificate upon fulfilling the
procedures set forth in the Nepal Citizenship
Act, 2006 and Rules thereof.
attained the qualification prescribed by the
constitution and law for obtaining citizenship
certificate and desires to obtain it shall have
to fill up an application in the prescribed
format, sign on it declaring that the particulars
mentioned therein are true and that he/she
shall be liable to consequences according to
law in case the particular mentioned above
proved to be false enclosing the proof that
he/she is Nepali citizen. Then the prescribed
official has to issue the Nepali citizenship
certificate to such person.
Article 24(3) of the International Covenant on
Civil and Political Rights, 1966 to which Nepal
is a party and whose provisions apply on good
as Nepalese laws pursuant to Section 9 of the
Treaty Act, 1990, has provided that every child
has the right to acquire a nationality. Likewise,
Article 7(1) of Child Rights Convention, 1989
to which Nepal is a party has further specified
that “The child should be registered immediately
after birth and shall have the right from birth to
a name, the right to acquire a nationality and
as far as possible the right to know and be cared
for by his parents.”
6.
Article 13 of the Interim Constitution of
Nepal, 2007 has provided the right to equality.
This is a fundamental right granted to all the
citizens without discrimination of any kind.
Article 13(1) provides that all citizens shall
be equal in the eyes of law, and 13(2) has
prohibited discrimination on application of
general laws on the ground of sex. Therefore,
form the grounds mentioned above, there
is no dispute on the fact that the petitioner
was born in Nepal and that the mother of
petitioner is a Nepali citizen who has acquired
Nepali citizenship certificate, the petitioner
is eligible for obtaining Nepali citizenship
certificate although her fatherhood has not
been traced out. There also seems no dispute
that Nepali citizenship certificate by descent
has to be granted to the petitioner if she files
an application in the format prescribed in the
Schedule 1 and fulfilling the procedures set
forth in Rule 3(1) (3) of Nepal Citizenship Rules,
2006. By showing the ground /reason that
the whereabouts of her father is not known,
denying her granting citizenship certificate
does not mean only unequal treatment towards
the petitioner but also the violation of her right
to Nepali citizenship.
7.
Now to consider about the second question,
it is found that the petitioner has been denied
Nepali citizenship certificate on the ground
that the address of her father has not been
traced out. Such an act is contrary to the
provisions of the Interim Constitution of Nepal,
2007, Nepal Citizenship Act, and Rules, 2006
and international instruments such as ICCPR,
1966, CRC, 1989 and CEDAW, 1979 as well.
8.
In the present dispute, the acts of all respondents
especially those of the Chief District Officer
entrusted with the responsibility of providing
citizenship certificate are not only against
the Interim Constitution of Nepal, 2007,
Nepal Citizenship Act, and Rules, 2006 and
international instruments such as ICCPR,
1966, CRC, 1989 and CEDAW, 1979, but also
are arbitrary. Chief District Officer is the chief
administrator of the Government of Nepal
Article 7(2) of Child Rights Convention has
provided that “State parties shall ensure the
implementation of these rights in accordance
with their national law and their obligations
under the relevant international instruments
in this field, in particular where the child
could otherwise be stateless.” Upon becoming
a signatory to Child Rights Convention it is
the legal obligation of Government of Nepal
to implement the rights conferred by the
Convention to children and to save them from
being stateless.
4.
5.
Citizenship is of paramount importance for
every person. The citizenship certificate alone
can identify a person as a citizen of a certain
country. A person cannot become citizen
only by his/her long residence in a particular
country and without obtaining citizenship
certificate he or she cannot enjoy political
rights. In order to enjoy economic and political
rights, and to identify someone as citizen,
the citizenship certificate is indispensable. A
citizenship certificate is awarded only to the
persons who have attained the qualification
determined by the constitution and law.
Despite a long residence in the country, no one
can become a citizen unless he/she is qualified
for acquiring citizenship as determined by
constitution and laws.
Various rights such as the right to enjoy
fundamental rights, to assume public office,
to exercise political rights, right to enjoy social
security, right to adult franchise, etc. are
conferred to the citizens by their State. Political
rights cannot be granted to other persons. In
such significant and sensitive issues, a State
cannot render equal treatment between its
citizens and the persons who have not acquire
the certificate irrespective of their longer
residence in the country. The person who has
50
Compilation of Selected Decisions of Supreme Court on
CITIZENSHIP and BIRTH REGISTRATION
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