Courts play an
important role in defining law in Common law legal system. This is considered
good as it is supposed to bridge a gap in law. If prevailing laws prove inadequate
to address the issues at the hand, then the Court plays some proactive role to
address such problems through the interpretation of the law under its
jurisdiction. The rulings are based on universally accepted legal and judicial
principles, norms and standards. This can also be called judicial activism.
The Nepalese
Court has played a significant role in making the country’s laws clearer and in
the quest of justice. The Supreme Court of Nepal, as a head of the Judiciary
has been playing a particular role in setting principles and norms for the
protection of people's rights. This blog discusses the jurisprudence developed
by the Supreme Court of Nepal regarding the interpretation of nationality law and
constitutional provisions relating to nationality/citizenship, against the
backdrop of international human rights law. Since, citizenship has been
remained as one of the most contentious issues in Nepal for a long time, this piece
aims to shed light on some positive aspects of the developments in this regard.
One leading case
related with discrimination against women to confer nationality to her daughter
is centre-stage in this blog: the 27 February 2011 decision of the Supreme Court in the
petition Sabina Damai v. Government of Nepal et. al., Writ No. 067-WO-0703 of the
year 2067 BS (2010 AD).
Fact of the case:
Ms. Sabina
Damai is a daughter of Ms. Gangamaya Damai but her father is still unknown. Ms.
Gangamaya Damai left her birthplace Dolkha district (one of Nepal’s 75 districts)
at the age of 22 and came to the capital city Kathmandu in search of
employment. There, she became pregnant and gave birth to a daughter called
Sabina. Ms. Gangamaya doesn't know who the father of her daughter is, as she had
a sexual relationship with different men at that time.
When Sabina
reached an age of 18 years (eligible age for citizenship is 16 years), she submitted
an application to the District Administration Office (DAO) in Dolkha to get a citizenship
certificate – this being the place where her mother is from and Sabina claiming
the citizenship certificate by descent. But the Chief District Officer (CDO)
denied her the citizenship certificate on the ground that her father is unknown
and rejected her application through verbal notice.
Summary of the Court's Ruling:
In a writ petition filed by Ms. Sabina Damai, she asks for the court to
review the decision by the Chief District Officer (CDO) to reject her
application for a citizenship certificate and to order the Government of Nepal
to issue such a certificate. She claimed that she was denied the citizenship certificate
despite of fulfilling all of the requirements set by the law.
The Supreme
Court maintained that citizenship certificates have a vital importance for
every person. The citizenship certificate identifies one as a citizen of a
country. It is also a prerequisite to enjoy civil, political as well as
economic rights. One must qualify under the laws and constitution of Nepal as a
citizen, in order to get a citizenship certificate.
Since Article
13 of the Interim Constitution of Nepal 2063 (2007) guarantees the right to
equality, which means all of the citizens are equal before the law regardless
of their sex, gender and other statuses Therefore women should not be the
subject of discrimination at all, in issues relating to the citizenship
certificates as well. In fact, the court stated, the law clearly provides that
it is the right of the child to get a citizenship certificate in the name of
mother who is already a citizen of Nepal, in case of unidentified father or
missing one, as per article 8(2) of the Interim Constitution of Nepal. The
court maintained that it is the fundamental as well as human rights of the
child to get her nationality from mother.
In its ruling,
the court also pointed out that Nepal is a State party to the Convention on
Rights of Children (CRC), which provides that every child has right to
nationality and his/her best interest, should be protected. As such, the court
concluded, the Government of Nepal is bound to respect its commitments towards
child rights and observe the treaty obligations.
On the basis
of these considerations, the court ruled that since available evidence and
proof establish that Gangamaya Damai, mother of Sabina Damai (the plaintiff) is
a Nepali citizen by descent, and Sabina Damai has also born in Nepal, Sabina is
entitled to get a Nepalese citizenship certificate by descent in accordance
with the prevailing citizenship laws, as well as constitution of Nepal. The
Supreme Court then ordered the District Administration Office of Dolkha to
provide a citizenship certificate to the applicant.
Conclusion:
The above
decision of the Supreme Court has major significance to the situation in Nepal
for three reasons: i) in maintaining gender justice; ii) providing citizenship certificates
to the thousands of eligible children whose father are missing/unknown; and iii)
observing the treaty obligations and reducing statelessness. More importantly,
in its ruling, the Court indicated the need for the state to adopt essential
measures in addressing the problem of citizenship certificate as well as
statelessness in Nepal.
In its
verdict, the Supreme Court has emphasized on the principle of equality before the
law as well as the right to nationality for all. In addition, it reaffirmed the
principle of non-discrimination which includes the right to equal protection of
the law for women and children, regardless of their status in society.
Furthermore the Court added that it is the duty of the State to abolish all
forms of ill and inhuman tradition and practices, customs, etc. against women
through the enactment of proper laws. The traditional and conservative mindset
which considers women as inferior to men need to be changed. Being two sides of
the same coin, men and women are equal in dignity and rights.
Today, the letter
of the law doesn't restrict a woman from conferring citizenship to her children
[(Article 8 (3) of Nepal Citizenship Act 2006]. However, it is not a well
accepted practice in Nepal – that of granting citizenship in the name of
mother, by descent. By descent is always interpreted to mean from the father or
male, reflecting the still largely patriarchal mindset in society. Indeed, the
criteria set in implementing rules under the citizenship law, namely the
Citizenship Regulation and Directives, present a there is a particular obstacle
to getting citizenship in the name of mother. These will now need to be amended
as per the Supreme Court ruling.. It is a matter which needs to be addressed soon
for a more just, peaceful and prosperous society. The decision of the Supreme
Court has therefore been welcomed by human rights community, civil rights
activists and all.
This guest post was written by Laxman Lamichhane, who is an Advocate in Nepal. He holds an
LLM in International Human Rights and Refugee Law from Tribhuvan University,
Kathmandu, Nepal.
