Citizenship for Madhesi: A matter of state headache or of right and justice
THE WEEK BUREAU
Citizenship is a means to establish a relationship between the state and its citizens. It the citizen’s rights to acquire the citizenship proof in an easy and fair way. But when the state machinery is biased towards a particular community or people, this right becomes a problem to enter into any public space in the country. This book, however, will describe, in short, the different kinds of problems related with the Madhesi population in acquiring a citizenship and thus becoming stateless within the boundary of a state deprived of many constitutional rights.
In absence of citizenship certificate, a Nepali is deprived of his/her many constitutional and legal rights as well as their access to resources and opportunities. They get deprived of their right to work, right to vote, right to education (as they can’t get enrolled in technical education without it), to receive governmental facilities (old age pension, single women pension) etc. However, a Madhesi has to suffer most to get this national identity and has been deprived of his/her fundamental human rights for a long time.
Who are Madhesis in Nepal and the proportion of the total national population that they share are disputed all the time. So is the case of their loyalty to “Nepali” state. Generally, Madhesis are people having non-Nepali mother tongue, residing in southern (plains) part of Nepal. Madhesi is a complex community of Hindus, Muslims, Dalits and indigenous people having different livelihood, occupations and settlement history in the Tarai region.
Photos: Chandra Shekhar Karki
Some claim Madhesi population is about 48% of the total population in Nepal, but some say Madhesis are less than 33% of the population. However, their loyalty to “Nepali” nationalism is always questioned. They are suspected as Indian settlers in Nepal. The distribution of Nepali citizenship to Madhesi population is always at scrutiny with the suspicion that it will lead Nepal into disintegration. A Madheshi person clearly identifiable with his/her look, surname, dress or language has to face many procedural, administrative and behavioral barriers in addition to legal problems in getting citizenship proofs.
Even with the implementation of different laws regarding citizenship, Madhesis are suffering due to various legal barriers. The 1952 Citizenship Act for the first time defined Nepali citizen as: one born in Nepal; one permanently settled in Nepal; one whose parents were born in Nepal; and a woman married to a Nepali. This law allowed anyone who lived in Nepal for at least five years to be eligible to receive naturalized citizenship. However, the 1962 Constitution adopted discriminatory provisions for citizenship to the Madhesi population. Clause (d) of section 2 of Article 8 of the Constitution stated that one with non-Nepalese origin has to spend a minimum of 12 years in Nepal to get citizenship while one with non-Nepalese origin can get citizenship if he spends two years in Nepal and thus left the term “Nepalese origin” undefined for discretionary use by people most of whom already had discriminatory attitude towards Madhesi people. Under the 1990 Constitution; a person whose father is a citizen of Nepal by decent can get Nepali citizenship under the category of “Bangsaj”. Those who lived in Nepal for at least 15 years can also get citizenship by naturalization called “Angikrit”. However, the government of Nepal, since 1980, did not distribute Angikrit citizenship leaving an overwhelming number of youths whose father had either Angikrit or Janmasiddha citizenship in problem (except naturalization by marriage in the case of woman married to a Nepali citizen). It is to be noted that speaking and writing in Nepali was a precondition under those legal provisions and that put non-Nepali speaking Madhesis in trouble.
The high level Citizenship Committee formed under the chairmanship of the then parliamentarian Dhanapati Upadhyay in 2052 estimated that 3.4 million people of Nepal were without citizenship and most of them were Madhesis. The committee recommended a number of ways for legal and procedural reform.
After the promulgation of Interim Constitution of Nepal 2063 and Citizenship Act 2063, a progress was made to resolve the citizenship problem in Nepal and around 230,000 citizenships were distributed. Out of which, 170,042 citizenships were distributed based on birth. However, the section 4(1) of the Citizenship Act mentioned that people who were born in Nepal and were living in the country till 2046 BS, Chaitra could get citizenship by birth. But, the act didn’t have any provision for citizenship for those born between 2046 BS – 2063 BS. Thus, the children of 170,042 people who were born after 2046 BS faced difficulties in getting the citizenship and thus have been deprived of their legal rights.
It’s amazing to see that even in the 21st century, Nepal describes its citizens in different category (i.e Bansaj as first class, Janmasidha as second class and Angikrit as third class) rather than just categorizing them as citizen and non citizens.
As noted above, most of the Chief District Officers (CDOs) who are responsible in distributing citizenship belong to the Pahadi Community and have bias towards Madhesis for being Indian. They make lame excuses to not give Nepali citizenship to the ‘suspects’. It would be interesting to note here that before 2063 BS, one had to apply for the citizenship with a photo donning the “Dhaka Topi” (‘Nepali’ cap) and a person without a Dhaka Topi was not a ‘Nepali’. With the hill origin Nepali speaking CDOs and administrative officers, it was/is not easy for illiterate Madhesis to speak and claim their rights in Nepali. In some occasions, these people were humiliated and laughed at because they couldn’t speak the language. Sometimes, they have even been mistreated. This situation led to the increase in number of middle men in every CDO office to establish a link between the beneficiary of citizenship and the authorities which ultimately led to corruption. In many cases, despite producing all the necessary documents before the CDO, police inquiry were frequently made which not only delayed the process of acquiring citizenship, but those seeking citizenship had to bribe the police to get their work done on time.
In addition, CDOs even protested the order of the Home Ministry to provide citizenship for those youths whose father has obtained citizenship by birth arguing that it contravenes the existing legal provision. It would not be fair to say that CDOs should have obeyed the order which had no legal basis, but what is important to note here is that the same CDOs are disobeying the circular which is legal and based on the Supreme Court order to provide citizenship if the mother of the applicant is a Nepali.
It is also important to ponder on if the suspicion of those authorities baseless. We can see that a number of media reports have revealed that even foreign (most often Indians) criminals have received Nepali citizenship under a fake name. But an interesting fact is that they got those citizenships from the same hill origin authorities who have been reluctant in providing citizenship to Madhesis. For those Madhesi living in rural area, illiterate and poor, citizenship has no meaning and thus until and unless they require it for any legal purpose, they will not apply for it.
To confirm that every Nepali has received his/her Citizenship, a door delivery of citizenship is required. Once every Nepali has received citizenship and their children are sure to get citizenship upon reaching their legal age, a legal provision should be made to control foreigner’s access to citizenship.
When one faces injustice or their rights are violated, the independent judiciary is expected to ensure effective right to remedy. But what can be done when the justice system itself is biased towards a community? In relation to Madhesis and citizenship, the Supreme Court has made a number of controversial decisions.
For example, in 2054 BS, 34,090 citizenships were distributed by a Citizenship Distribution team deployed by Citizenship Monitoring and Work Evaluation Committee formed by the then government. The Supreme Court, however, later declared them null and void on the grounds that the distribution process for those citizenship cards contradicted with the constitutional and legal provisions related with citizenship distribution in Nepal. It is important to note that the Supreme Court, in this case, did not state that the recipients of those citizenship certificates were illegal citizens, rather it questioned the process of citizenship distribution and its legality.
Question arises upon the duality of the Supreme Court. While it did take some progressive decisions in a number of cases to address the right to remedy for the rights violations, on the other hand it kept mum and didn’t pass any directive to ensure that the stateless people get the citizenship proof they were asking for.
Even after 2063 BS, where Madhesis have achieved identity, dignity and representation in politics and power of state, judiciary remains status quo-ist in regard to the citizenship. The Supreme Court further jolted the sentiments of the Madhesis when it declared that only those who have citizenship will be eligible for voting rights.
The Madhesi political parties use the citizenship issue as their trump card to acquire Madhesi votes. The ‘national political parties’ like Nepali Congress, CPN-UML and UCPN-M have not taken this issue seriously. They think that the increased population in Madhes would force them to increase the number of constituencies which will ultimately limit their political space.
Does this help the genuine Madhesi people who suffer from statelessness? Of course, one can argue that open border with our southern neighbor needs to be regulated and monitored, but that must not be the excuse for the Nepal government to let its citizens live without citizenship.
Citizenship must be granted to the people of Nepal irrespective of their caste, religion or sex. For that legal, procedural and administrative reform should be made to make the citizenship acquiring process easy and accessible to all. To avoid foreigners’ access to Nepali citizenship, proper legal, procedural and administrative measures need to be defined in consultation with concerned stakeholders. It would be wise to establish a permanent high level commission to monitor the citizenship distribution process to ensure fair and efficient distribution of citizenship.
(Excerpts from an unpublished report titled “Stateless Madhesi”, written by advocate Dipendra Jha for an NGO – Third Alliance)
Date of Birth : January 23, 1990
Address : Ward 4, Kapilvastu Municipality, Kapilvastu
Father’s name : Shambhu Prasad Barai
Mother’s name : Kislavati Barai
I completed my schooling from Shri Buddha Padam Madhyamik Vidhyalaya and +2 from Sunshine English Boarding Higher Secondary School. I’m now enrolled in second year of Bachelors in Education at Kapilvastu Multiple Campus. When I was in 11th standard, my classmates and I applied for the post of Community Adult Educators. All of those who had applied for the job were selected, but I wasn’t. Later, the recruiters told me that they could not process my application because I didn’t have my citizenship. The job offered a monthly salary of Rs 6,000 and I had been very excited about it. I was hurt because I felt I was better than some of the selected ones.
When I was in the 10th standard, I came to know that my parents did not have citizenship proofs. My father finally obtained his document in 2007. Even I wanted to get one made but my parents didn’t think it was important.
I tried out other jobs. I worked at the Kapilvastu branch of Family Planning Association as a social mobilizer. Despite knowing that I don’t have a citizenship, they hired me. I was obliged to them. But things soon took a different turn. Whenever something came up, they would taunt me and threaten me saying that I might lose the job as I didn’t have the required documents. My immediate boss told me that I should not complain about anything because if I lost my job there I wouldn’t be able to get another job. After working there for some months, I went to some other NGO looking for a job, but they too told me that I needed to possess a citizenship to work for them.
About nine months ago, I got the opportunity to work as junior clerk at the District Development Committee (DDC). My boss was very happy with my performance. I was able to do the job perfectly. She appreciated my computer skills. “You have learnt many skills at a very young age. Your husband will be a very lucky man,” she would often tell me in appreciation. After two and half months, when she came to know that I did not have my citizenship, she said I’d have to leave. I really liked the job and wanted to continue. I even told her that I would marry a Nepali and get a Nepali citizenship soon. Later, I gave them a letter from Chief District Officer that said stated I was a Nepali citizen. I also submitted a letter that I had received from the municipality confirming that I was the daughter of a Nepali citizen. Yet nothing worked. My family members consoled me and said that things would change one day. Now I have a dream of passing the Public Service Commission exam and become a government officer like my boss. But my first priority is still to get the citizenship certificate.
I humbly requested the Chief District Officer (CDO) to grant me my citizenship certificate. He said there were many people like me who have failed to acquire their citizenship proof. The CDO said it was due to the fault of the Interim Constitution and the citizenship laws that many people have failed to acquire it. When I repeatedly requested for him to help me get one, he said, ‘Don’t worry. You can easily get a Nepali citizenship when get married to a Nepali citizen,” It was a casual remark so I retorted casually – “Get your son to marry me then.”