RIGHTS-NEPAL: Laws Have Changed, Mindsets Haven’t

  • by Bhuwan Sharma (kathmandu)
  • Inter Press Service

Like many Nepalis, Thapa does not have a birth certificate and had to get a citizenship card after the age of 16.

He was not worried when his father, who lives separately from his mother, refused to support his bid to apply for citizenship through his name. Thapa knew that the Nepal Citizenship Act 2006 assures that Nepalis acquire citizenship from either parent.

But Thapa was soon to learn that although many gender discriminatory laws have changed in this Himalayan country, mindsets have not. The district office refused to handle his case, saying he needed to process citizenship through his father and asked Thapa to do this from Kavre, his estranged father’s hometown.

That was when the Forum for Women, Law and Development (FWLD) stepped in and filed a writ petition in the Supreme Court, which on Jun. 26, 2009 ruled that the ‘right to choose’ whether to seek citizenship through one’s father or the mother rests on the applicant.

Thapa was finally granted citizenship through his mother and got a citizenship card.

'The problem is not in the laws but in the mindsets of government employees entrusted with the responsibility of issuing citizenship cards. They cannot imagine a women’s identity independent of a man,' said the FLWD’s Meera Dhungana.

Experiences like Thapa’s are far from uncommon in the capital Kathmandu, and sure to be even more so in the interiors of Nepal. Ninety percent of Nepalis live in villages and many are born at home, so they are unlikely to have birth documents.

Nisha Rai, whose father left her family when she was very young, struggled long and hard before FWLD helped her obtain citizenship through her mother’s name.

She had needed proof of citizenship in order to study overseas, and missed a couple of opportunities during her bureaucratic struggle. Many others continue to remain deprived of job opportunities in the absence of this document.

When Sushama Gautam, who also works for FWLD, visited the DAO office advocating for Rai’s right to get citizenship in her mother’s name, she recalls the staff there asking her: 'How can there be a child without a father?' The words of the bureaucrats themselves reveal their mindsets.

Despite the Supreme Court ruling, the chief district officer (CDO) of Kathmandu, Laxmi Prasad Dhakal, flatly ruled out to IPS the option of applying for citizenship through the mother when the father is alive or his whereabouts known.

CDO Dullu Raj Basnet of Panchthar district in eastern Nepal said he 'hasn’t issued a single citizenship card through the mother because there is no such provision in the law.'

The CDOs point to Section 3 of the law: 'Whatever may be written in Sub-section (1) (on citizenship from either parent), a child born out of wedlock by a Nepali female citizen to a foreign national shall be in accordance with Section 5, Sub-section (2).'

That provision says, 'A child born to a Nepali female citizen from marriage with a foreign citizen in Nepal may be granted naturalised citizenship as prescribed, provided the child has not acquired the citizenship of the foreign country on the basis of citizenship of his/her father.'

By referring to these sections, what the DAOs essentially do is challenge people applying for citizenship through the mother to prove that his or her father is not a non-Nepali, thus indirectly still seeking details about the father as basis for granting citizenship documents.

'The ultimate victim of the narrow interpretation of the law by government staff is the ‘spirit of equality’ with which the amendment was made,' said Binda Pandey of the CPN-UML, who heads the committee on fundamental rights and directive principles of the Constituent Assembly debating a new constitution due in May.

'While we understand that the lower-level staff of the DAO may not have understood the new act fully, it’s appalling to see well-informed high-ranking officials such as the CDO harbouring such a discriminatory attitude,' Gautam pointed out. 'We have taken up some cases but imagine the plight of thousands of other people across the country.'

In truth, advocates Dhungana and Gautam say, it is not only DAO officials who discriminate against women. 'Many times, close family members shun away from supporting women in their bid to acquire citizenship,' they said.

In some cases, family disputes lead to bitter struggles when male members refuse to provide documents for female kin’s citizenship papers.

Nakkali Maharjan from Kirtipur municipality, whose husband left her, had difficulty getting her father to support her citizenship process. 'The fear that the daughter might claim a share of the property leads to such resistance,' Gautam said.

Under Nepali law, sons and daughters have equal right to ancestral property.

Tulasi Maya Maharjan, also from Kirtipur municipality, is going through the same struggle as others before her. Gautam says that for as long as citizenship and property rights are 'intricately linked', there will be more cases like that of Thapa and Rai.

© Inter Press Service (2010) — All Rights ReservedOriginal source: Inter Press Service