Thursday, September 8, 2022

Adhocratic citizenship policy

Four important elements of a nation are sovereignty, territory, people and government. A nation will have a certain territory and the people in it are the citizenry of the nation, in whom the sovereignty of the nation is vested and the representatives elected by the sovereign people form the government. These 4 elements are interlinked. Under article 2 of the current constitution of Nepal, the sovereignty of Nepal is vested in the citizens and the representatives elected by them run three levels of government. Fund required to run the country is mainly sourced from the rates, taxes, duties etc. levied on the citizenry. Moreover, the citizenry is the human resource of the nation. Therefore, the citizenry is the two main pillars of the nation. Hence, population policy should be formulated focused on the economy of the country and citizenship policy should conform to the population policy. Population policy Each nation has its own unique population policy, which depends upon important factors like geopolitical situation, natural resources, etc. Nepal’s economy is very weak. Nepal depends upon the inflow of remittance from its youth employed abroad. Nepal lacks employment opportunities as she is not industrialized. Thus, industrial production in Nepal is very low and it suffers from high trade and payment deficits. Nepal is not endowed with minerals like fossil fuel, precious and semi-precious stones or metals, etc. The water resource is the only natural resource endowed to Nepal, which too is not fully harnessed and whatever is harnessed is allowed to be colonized by India. It should not be lost sight of the fact that even Arabian countries that are rich because of petroleum products do not adopt liberal population/citizenship policies. Geographically, Nepal is landlocked between two behemoth countries: China with 1.45 billion population and India 1.41 billion. Nepal’s population has already exceeded 30 million and, therefore, Nepal is sandwiched between two countries with close to 3 billion population. The population density of Nepal in 1950 was only 58 people per square kilometer, which has skyrocketed to 207 people per square kilometer in 2021. With the advent of democracy in Nepal in 1950, she used to invite foreigners for appointments in important posts. For example, Nepal appointed an Indian, Hari Prasad Pradhan as the chief justice in 1951. Citizenship of Nepal was granted to all these invitees. The population density of India is already 431 people per square kilometer and Indian states neighbouring Nepal like Bihar, West Bengal and UP have the population density of 1,106, 1,028 and 828 people per square kilometer respectively and migration from these places to Nepal is an ongoing phenomenon. The crux of the problem is the open border between Nepal and India, which is neither regulated nor controlled. Nepal’s Tarai is almost filled with people having migrated from these places that have obtained Nepal’s citizenship by means fair or foul. Against this backdrop, it is very important to formulate Nepal’s own population and citizenship policy such that her population does not increase exponentially due to migration from these Indian states. Citizenship policy If Nepal’s citizenship policy is too liberal, the open border with India would be exploited to the hilt. Many nations are forced to adopt liberal citizenship policies. For example, the USA is granting citizenship to foreigners under the diversity visa (DV) program. Because her population density is only 34 people per square kilometer and there is a shortage of human resources. But even then, those entering the USA under the DV program do not receive US citizenship immediately. Such people can apply for citizenship only after permanent residency in the US for 5 years and it takes about 6 months to 1.5 years to receive citizenship. Further, an investor investing the US $ 900,000 to the US $ 1.8 million in the USA, depending on the level of development of the locale concerned, is entitled to naturalized citizenship after residing there for 5 years permanently. Nepal should also adopt a similar citizenship policy. Furthermore, Nepal should not become a haven for marginalized Indians from poverty-stricken, backward and underdeveloped neighbouring Indian states. Unfortunately, there is neither a population policy nor a citizenship policy in Nepal. Everything is done on an ad hoc basis, hence there is an adhocratic population/citizenship policy in Nepal. Citizenship law is tweaked for political gains with an eye on creating vote banks. With the election for the federal House of Representatives and 7 provincial parliaments fixed for November 20, the establishment is in a great rush to amend citizenship law. Brief history of citizenship law Citizenship Act was promulgated for the first time in Nepal in 1952, which was relatively liberal. Anyone born in Nepal, if one of the parents is born in Nepal and residing in Nepal with family, were granted citizenship. There was a provision for citizenship by birth. There was no provision for citizenship in the constitution promulgated in 1959 while the constitution promulgated in 1962 had a separate chapter for citizenship under which anyone born in Nepal or if one of the parents is born in Nepal was deemed to be a citizen of Nepal. New Citizenship Act was promulgated in 1964, which made provision for citizenship by descent and only children of Nepali fathers were to be granted citizenship by descent. Provision for citizenship by birth was abolished. This provision contravened the constitution as the constitution of 1962 had provided for citizenship to children of both mother and father. In this manner, citizenship was made less liberal gradually. However, this scribe was granted citizenship by birth under the Citizenship Act 1952 in 1969, while the new Citizenship Act 1964 was in force. The constitution promulgated in 1990 also had provision for citizenship for children of Nepali fathers only. However, the Citizenship Act 2006 has tried to be liberal, as children of both Nepali fathers or mothers are entitled to citizenship. Dynamic citizenship law The citizenship law of Nepal has been dynamic. It was liberal under Citizenship Act 1952, but it was gradually rendered strict. There are several anomalies in it which have to be improved. Citizenship by marriage: Is there time for this? From the time citizenship law was promulgated for the first time in 1952, foreign women married to Nepali males were granted Nepal’s citizenship almost upon “arrival”. However, foreign men marrying Nepali female citizens were not entitled to the same treatment. Nepal was a patriarchal nation and is still so in many ways. A Nepali female married to a foreign male is expected to go home to her husband’s country. Foreign males married to Nepali females are not expected to settle down in Nepal. Time has changed. Many foreign males married to Nepali females wish to settle down in Nepal and contribute to Nepal as a citizen. This balatant discrimination between a brother marrying foreign woman and sister marrying forein man. Even the current constitution promulgated in 2015 has the same provision. But this provision is blatantly unconstitutional. Article 18 of this constitution provides for the fundamental right to equality while treating unequally Nepali males and females marrying foreign spouses. Besides, UNO has declared equality as a basic human right and this provision that discriminates between Nepali males and females marrying foreign spouses contravenes the human right to equality. Besides, granting citizenship to foreign females marrying Nepali males “on arrival” is also wrong. Countries that have adopted liberal citizenship policy also do not grant citizenship “on arrival.” For example, as explained above, the USA has a liberal citizenship policy, still, a foreign spouse marrying a US citizen can apply for citizenship only after 3 years following 5 years of permanent residency. In other words, it takes 8 years for a foreign spouse to obtain US citizenship. Therefore, the current provision of citizenship by marriage needs to be revoked and foreign spouses of Nepali citizens should be granted citizenship after residency in Nepal for 10 years. Moreover, there should be an element of reciprocity in the provision related to citizenship by marriage. For example, since a foreign spouse in India can apply for citizenship only after 7 years, Indian nationals married to Nepali citizens should be granted Nepali citizenship only after 7 years. Similarly, US nationals married to Nepali citizens should be granted citizenship only after 8 years. The exploitation of local Madhesi The constitution promulgated in 2015 has made provisions for reservation for people including Madhesi under articles 18, 42, 267 and 285. Indian neighbouring states with high population density but underdeveloped, backward and bereft of employment opportunities are migrating to Nepal in big hordes and are obtaining Nepal’s citizenship using various loopholes and are enjoying the constitutional right to reservation earmarked for Madhesi. This amounts to the exploitation of local Madhesi that have been living in Tarai for several generations. Citizenship policy needs to control this aspect too. Citizenship to non-resident Nepali Article 14 of the current constitution of Nepal which has a provision to provide citizenship to non-resident Nepalis (NRNs), except in South Asia, without political rights is outright unconstitutional. Because this provision discriminates between NRNs of South Asia and everywhere else. If out of the two brothers one is settled in South Asia and another is settled outside South Asia, the first one would not be entitled to non-resident Nepali citizenship while the other one would be entitled to. This is blatant discrimination. While article 18 of this very constitution guarantees the right to equality as a fundamental right. Therefore, it is unconditional to provide citizenship to NRNs except those in South Asia. Besides, it also contravenes human rights of equality proclaimed by the UN. If citizenship is to be provided to NRNs, it should be provided to every NRNs without any discrimination. Besides, NRNs that have renounced Nepal’s citizenship have more rights in Nepal than a citizen of Nepal. For example, a citizen of Nepal cannot repatriate foreign currency abroad, while NRNs are entitled to the right to repatriation. In other words, NRNs have all the rights as Nepalis have except to own landed property. However, under section 11 (1) of NRN Rule 2066, an NRN can purchase 2 to 10 Ropani or 8 Kattha to 1 Bigaha depending upon location. Therefore, just to bestow economic rights it is not necessary to provide dual citizenship to NRNs. As far as social and cultural rights are concerned, there is no need for dual citizenship. They can come to Nepal anytime and are free to exercise social and cultural rights. Further NRNs do not even have to pay a visa fee to enter Nepal under section 11 (6) of the NRN Rule. Conclusion Population policy of the country must be formulated with an eye on economic condition and economy. Then citizenship policy should be compatible with the population policy. Besides these policies should not contravene the fundamental right to equality enshrined in Nepal’s constitution and the human right of equality proclaimed by the UN. Marginalized Indians should not be able to encroach upon the right to reservation of local Madhesi inhabitants. Published in People's Review of Septemeber 8, 2022 Ratna Sansar Shrestha

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