31 Fundamental Rights have been Proposed
Binda Pandey
Chair, Committee on Fundamental Rights and Directive Principles
How many fundamental rights has the Committee proposed?
Thirty-one issues have been proposed for fundamental rights.
What are the bases for identifying the fundamental rights?
Basically, we have taken four bases while deciding on fundamental rights: 1) the present provisions in our constitution, 2) our commitments to international community, 3) values established by movements at various times, 4) opinions collected by the CA members from the people. We have proposed the fundamental rights on the four bases.
What types of suggestions were received from the people to be includes as fundamental rights?
While listing the suggestions from the people, about 150 issues were included. There were some who suggested death penalty for those committing serious crimes but which was not included because it would conflict with international human rights. There was no question of including issues, which would go against our commitments. Then, the sub-committee finalised 49 issues. Then we discussed the list in the main committee, and the draft committee proposed 31 fundamental rights, which was endorsed by the Committee. The point of our discussion was that only those rights needed to live as a dignified citizen should be included as fundamental rights in the constitution.
What are they?
When closely looking at the suggestions from the people, five/six issues were important, which were seen necessary to be mentioned as fundamental rights. There was a common recognition that issues food, housing, clothing, education, health, social security, and employment must be included under fundamental rights. There are new issues as well which were not there. For example, right to housing, right to employment, rights of victims, and issues of untouchability should be seen in different lights instead of lumping it together.
There are suggestions that inhuman behaviour towards Dalits should be punished severely and compensation should be paid to them. There is the understanding that untouchability is limited to Dalits alone, which is wrong. Besides Dalits, there is untouchability in other communities as well because in Chhetri-Bahun households, there is still compulsion for women to practice untouchability. Discrimination based on physical abilities is still prevalent. There is untouchability between Upadhyaya Bahuns and Jaishi; there is untouchability between Jaishi and Chhetri; there is untouchability between eastern and western Kumain. Discussion centred on the fact that unless these are removed, untouchability cannot be removed from society. There was agreement on this. Among the new addition is the issue of consumer rights, also family rights. In addition to equal recognition to sons and daughters, there is the suggestion to totally ban polygamy. Mainly, attempt has been to establish the right of a citizen to exercise human rights in a dignified manner.
What should be called citizenship?
An official identifying document between a citizen and his country of domicile is the citizenship. In our context, we believe citizenship is everything, but in some countries, identity card is sufficient for everything. In our context, citizenship is needed while acquiring driving licenses to everything else.
What was your assessment of the policies until now on providing citizenship?
The need of citizenship in society rose along with modernity. In the beginning, it had no meaning. There was no need for this. In our context also, mothers-fathers, grandfathers-grandmothers had no problems of citizenship. However, later as fundamental rights took hold in such a way that citizenship also acquired importance based on that. Because fundamental rights mean that the country has to provide citizenship to its citizens. Even to practice such rights, the citizenship became necessary. In our context, initially it was quite flexible, but is gradually seen to have become rigid, which was based on male-centric values and standards.
Before 2019 BS, anyone born in Nepal was automatically a Nepali citizen but after that only the children of Nepali fathers were recognised as Nepali citizens. In addition, then later, children from foreign father and Nepali mother or having resided in Nepali for two years were recognised as Nepali citizens. However, after 1990 CE, the process became more difficult instead of flexible. The authority issue citizenship got restricted to the state and it became accepted that citizenship rights through of mother is not recognised.
Why in our case is there dispute on citizenship and women’s relations?
The policies regarding citizenship for women gradually became more stringent and that was not the case for men. In men’s case, any child from Nepali father born anywhere is a Nepali citizen. In father’s case, there has been no change, has not been made stringent. However, in mother’s case, in the beginning, children born to Nepali mothers in Nepal were citizens, but now the provision states that the mother has to prove that she lives here and the father is not a foreigner before issuing citizenship. Therefore, the discussion is going on about policies on citizenship remaining stringent for women but in men’s case maintaining the status quo.
What was the dispute in the Committee?
That has been the issues in our Committee discussions. The real dispute is whether issuing citizenship should be based on equality or retain the old recognised standards. There is a clash as whether to maintain the status quo or despite the past, citizenship should be issued on based on equality without gender discrimination.
The discussion on citizenship in the Committee focused on ‘son-in-law’ and ‘daughter-in-law’. Could you clarify this?
The discussion focused on five issues. Of these, two are based on equality, one would fit in either way, and another one is very difficult. The remainder is based on male-centric proposal.
Of the two proposals based on equality, one argued that a sensitive and official document like citizenship should not be issued immediately after marriage to a foreigner. But one marries the person one loves, and it can be a foreigner or national. That cannot be stopped. Other argument was to institute identity cards in such cases. This should be applied to both men and women. The majority of Committee members feel that identity cards can be issued immediately after marriage and naturalised citizenship after living in Nepal for 15 years to ‘son-in-law’ or ‘daughter-in-law’. This is a stringent provision but another more liberal argument based on this proposal is for to issue citizenship immediately to a foreign male married to a Nepali female as in the case of a foreign female marrying a Nepali male that is the case now.
Another argument is against issuing citizenship to ‘son-in-laws’ because it will affect our nationalism, but we cannot deny citizenship to ‘daughter-in-law’ and should be issued one like in the present. Others argued that provision should be made to issue ‘daughter-in-laws’ with citizenship immediately and have a ceiling of 15 years for ‘son-in-law’. One more argument is against issuing citizenship to foreigners and proposes instead identity cards for both ‘daughter-in-law’ and ‘son-in-law’ and denial of political rights at all. The Committee has proposed that citizenship should be issued based on 15 years of living in Nepal for both ‘daughter-in-law’ and ‘son-in-law’. We could be flexible in terms of timeframes, which could be 10 or 7 years, but there should be equality and yet cannot be issued immediately. This is the majority proposal. UML and UCPN (M) agreed on 15 years; Nepal Congress argued for 15 years for ‘son-in-law’ but immediate citizenship for ‘daughter-in-law’; and Nepal Workers Peasants Party was against issuing citizenship. The Forum was for immediate citizenship to both; TMLP initially was against ‘son-in-law’ but later proposed immediately for ‘daughter-in-law’ but 15 years of residence for ‘son-in-law’.
The Committee members Congress were also in favour of keeping a 15-year ceiling for both females and males. This proposal initially came from them, but Congress did not accept this after we sent drafts to the parties to get the views of the party, and they were compelled to follow the party line. While finalising the report, the party influence took over.
Was the Committee proposal reversed by the high-level dispute resolution working group led by Prachanda?
Yes. Now the working group endorsed whatever was proposed by Congress and agreement was reached on 15 years of residence for ‘son-in-law’ and immediate citizenship for ‘daughter-in-law’.
Are you against this agreement of the high-level working group?
We are extremely against it. The CA cannot adopt such a provision that goes against equality in the new constitution. This will constitutionally again create gender discrimination.
Were not there many dissentions in your own Committee?
We also had a few dissentions in our Committee. We had hoped the high-level committee would resolve this uses but instead it entangled the whole issue.
How did it do that?
In the case of children, they will get citizenship through descent. If a Nepali son marries a foreign female, she will get naturalised citizenship immediately. But whatever his parents are and wherever he is born, she will get citizenship based on descent. Since the head of the state, prime minister, parliamentary speaker, head of security agencies have to be citizens of Nepal based on descent; these children will automatically be eligible for these posts. Even if the mother is a foreigner, the children will be citizens by naturalisation rules. And these children are automatically disqualified at birth for the above-mentioned posts. If they are born outside Nepal, they cannot become Nepali citizen even through naturalisation. This will create a situation of discrimination. Thus, a child born from a foreign mother will get a citizenship through descent but a child from a Nepali mother (but foreign father) will get naturalised citizenship only after 15 years of domicile in Nepal and if she is born outside, she will be a non-Nepali. This is also another case of discrimination for children.
If
Nepali women give birth to children in foreign shore and their father has not been identified, when they return to Nepal, the children will be non-Nepali. Also, if the foreign ‘daughter-in-law’ is not willing to take Nepali citizenship, her children will be non-Nepali and will not get Nepali citizenship. Therefore, it is our conclusion that the CA does not have the right to declare Nepali citizens into non-Nepali. It is said by issuing citizenship, population will increase; if that is true, can we say that then that two children from the same household will fed but cannot feed the third child? Or the family should not bear children. Once the child is born, we cannot declare that it is not our children because the family size will be too large. Therefore, in the case of children, citizenship should be provided in all cases. Nepali children from Nepali parents cannot be declared non-Nepali. But there can be flexibility in the case of time ceiling; whether it is ‘son-in-law’ or ‘daughter-in-law’, citizenship should not be provided immediately. Even in the case of India, after 5 years of residence and fulfilling certain requirements, only then citizenship is awarded. It is not acceptable that a Nepali gets citizenship only after 5 years of marriage and residence in India but an Indian daughter gets citizenship after marriage in Nepal the next day. It is our suggestion that since our situation is more critical that there should be a longer ceiling.
By: Dhruba Simkhada
Date of publication: 21 April 2011