By Binod Ghimire in The Kathmandu Post, June 01, 2023
The writer covers parliamentary affairs and human rights for The Kathmandu Post.
Over eight months after the federal parliament endorsed the amendment bill on the Citizenship Act for the second time, President Ramchandra Paudel on Wednesday authenticated the bill—the same one that his predecessor twice refused to authenticate.
Paudel decided to authenticate the bill after repeated requests from the government followed by a series of consultations with the legal and political experts. “As per the letter from the Office of the Prime Minister and Council of Ministers dated May 26, 2022 written for the authentication of the bill endorsed by the federal parliament twice, I have authenticated the bill as per Article 61 (2) (3) (4) of the Constitution of Nepal,” reads a statement issued by the President’s Office.
The presidential seal is a must for any bill to become a law. After the government last week requested him to authenticate the bill, Paudel was in consultation with experts and civil society members on whether he can authenticate the bill that was endorsed by the previous parliament when he was not even elected to the position.
“The President had a series of consultations. He discussed the matter till late in the evening on Tuesday before authenticating the bill,” Kiran Pokharel, press adviser to the President, told the Post.
The process of authenticating the bill was initiated in July last year. The then Speaker of the House of Representatives had forwarded the bill to Sheetal Niwas on July 31 for the presidential seal after the House of Representatives and the National Assembly endorsed it with majority votes on July 22 and July 28, respectively.
However, after sitting on the bill for 14 days, President Bidya Devi Bhandari on August 14 sent the bill along with her 15-point concern to the lower house requesting a review. She urged the parliament to reconsider several of its provisions.
The President in her comments had highlighted the need for a historical study of the drafting processes of citizenship laws. She had requested a study of the historical aspects and practices before amending the law. She called for a study of the very first law on citizenship issued in 1952, old constitutions and amendments to them to change the provisions related to providing citizenship, the citizenship law that was not authenticated by King Birendra, and reports of the commissions to resolve the problems related to citizenship.
She had also drawn the attention of Parliament to Article 10(2) of the constitution, saying the bill failed to incorporate the constitutional provision of single federal citizenship with provincial identity. Article 10(2) states that “provision of single federal citizenship with provincial identity has been made in Nepal.”
She also had a problem with a provision in the bill which said one born to a Nepali woman in Nepal and whose father is unidentified can get citizenship by descent after the applicant’s mother makes a self-declaration that the father is not identified. She said the provision was inconsistent with Article 39 of the constitution related to fundamental rights of the children and Article 38 that guarantees women safe motherhood and reproductive rights.
Bhandari had said the provision requiring self-declaration by a mother will not only compel her to reveal her identity, but will also amount to an attack on her self-respect. However, the federal parliament endorsed the bill without any changes and without a detailed discussion.
On September 6, then Speaker Agni Sapkota re-sent the bill to the President for authentication. However, Bhandari sat on the bill allowing the 15-day deadline the constitution had set to lapse. Her move was criticised as unconstitutional.
Now, as Paudel has authenticated the bill, his decision too is not free from criticism. Constitutional experts say the constitution does not authorise the President to authenticate the bill that was endorsed by the Parliament that is no longer in existence.
“There is a 15-day constitutional window for the President to authenticate the bill from the time he/she receives it. With former President Bhandari’s unconstitutional move to refuse authentication, the bill is already null and void,” said Bipin Adhikari, a professor at Kathmandu University School of Law. “The President’s decision to certify the bill has no legal or constitutional ground.”
Not everyone agrees with Adhikari. The Nepal Bar Association has time and often said Paudel can authenticate the bill. “The bill cannot go to Parliament again where it was endorsed twice,” Gopal Krishna Ghimire, chairperson of the Bar Association, told the Post. “We had on different occasions suggested to the government and President that the latter can authenticate the bill.”
Some constitutional experts say while the bill is of utmost importance as thousands of people have turned stateless in the lack of a law, the President has dragged the head of the state’s position into controversy. “A writ petition relating to the authentication of the bill is sub judice in the Supreme Court. The President must have waited for the court’s verdict,” Dinesh Tripathi, chairperson of the Constitutional Lawyer’s Forum, told the Post. “His move cannot be justified.”
Now that the amendment has become law with the Presidential seal, it clears the way for thousands of children of the parents who got citizenship by birth to acquire citizenship by descent. The Act allowed everyone born within Nepal’s territory before April 12, 1990 to acquire citizenship by birth. However, their children haven’t got citizenship by descent in the absence of a law as the constitution said the provision to grant them citizenship would be guided by a federal law. Some 190,000 persons have acquired citizenship by birth so far. An estimated 400,000 such people are waiting for their citizenship.
The amendment has also opened the door for the Non-Resident Nepalis to acquire citizenship. However, they will not be eligible to enjoy political and administrative rights. The provision will be applicable only to those who reside outside the South Asian region.
https://kathmandupost.com/national/2023/06/01/presidential-seal-on-citizenship-bill-courts-controversy
