Is the preliminary draft of new constitution more rigid than the Panchayati constitution?

South Asia Check / August 6, 2015

The Federal Socialist Forum Nepal (FSFN) has claimed that some provisions regarding citizenship set out in the preliminary draft of the new constitution prepared by the Constituent Assembly (CA) are more ‘complex and rigid’ than the provisions set by the constitutions made by the ‘autocratic monarchical regime and non-party system’.

To read the full text of the claim made by the party, click here.

To see whether the claim made by the party is fact-based or not, we compared the provisions in the preliminary draft of the constitution with those in the Constitution of Nepal-1962 promulgated during the party-less Panchayat era.

The predecessor of the 1962 constitution, the Nepal Government Statutory Law-1947, was also a constitution drafted by an autocratic ruler. However, this constitution did not have any provision about citizenship so it cannot be compared with the current preliminary draft of the constitution.

FSFN has claimed that the following four provisions about citizenship mentioned in the preliminary draft are more ‘complex and rigid’ than the provisions of the constitution under the ‘autocratic monarchical regime and non-party system’:

1. First provision claimed to be ‘complex and rigid’ by FSFN

Any person whose both father and mother were citizens of Nepal at the time of his/her birth shall be granted citizenship based on descent.

Provision in the Constitution of Nepal-1962

Any person who is born in Nepal, whose one of the parents was born in Nepal and who has permanently domiciled in Nepal, shall be granted citizenship at the time of commencement of the constitution.

This constitution is silent about citizenship category.

Comparison

Compared to the 1962 constitution, the current preliminary draft of the constitution appears more strict for it has divided citizenship into two categories – citizenship by descent and citizenship by naturalization.

2. Second provision claimed to be ‘complex and rigid’ by FSFN

If a male foreign citizen who is married to a Nepali citizen after the commencement of this [new] constitution, wishes to acquire matrimonial naturalized citizenship, shall acquire naturalized citizenship of Nepal as provided for in law if he has lived in the country for 15 years, and has initiated the process of relinquishing his foreign citizenship. If a foreign woman, who is married to a Nepali citizen, wishes to acquire naturalized citizenship of Nepal, may acquire naturalized citizenship of the country as provided for in law if she initiates the process of relinquishing her foreign citizenship.

Provision in the Constitution of Nepal-1962

A woman foreign citizen married to a Nepali citizen will get citizenship after she relinquishes her foreign citizenship. But the constitution is silent on the provision for a male foreign citizen married to a female Nepali citizen. The constitution requires foreigners to live in Nepal for 15 years to become eligible for acquiring citizenship. Going by this provision, a male foreign citizen married to a Nepali female citizen will have to live in Nepal for 15 years to become eligible for a naturalized citizenship.

Comparison

The provisions of both the constitutions look similar. Hence the preliminary draft of the new constitution cannot be termed ‘complex and rigid’ than the Constitution of Nepal-1962.

3. Third provision claimed to be ‘complex and rigid’ by FSFN

A person born in Nepal to a Nepali citizen married to a foreign citizen, and has permanent domicile in the country and has voluntarily declared about not acquiring foreign citizenship, shall acquire naturalized citizenship of Nepal as provided for by law.

Provision in the Constitution of Nepal-1962

Any person who is born in Nepal, whose one parent (either father or mother) was born in Nepal and who is permanently domiciled in Nepal shall be granted citizenship at the time of commencement of the constitution.

Comparison

The essence of both the provisions seems similar. But, based on the provision of the preliminary draft, the person in question gets naturalized citizenship, whereas he/she could acquire citizenship similar to one based on descent [as there was no category of constitution] as per the 1962 constitution. So it can be said the preliminary draft appears ‘complex and rigid’ than the 1962 constitution.

4. Fourth provision claimed to be ‘complex and rigid’ by the FSFN

A person whose mother or father was a citizen of Nepal at the time of his/her birth and both the parents of such a person are Nepali citizens at the time of acquisition of his/her citizenship will get citizenship by descent.

Provision in the Constitution of Nepal-1962

A person whose one of the parents was born in Nepal at the time of commencement of the constitution shall get citizenship.

Comparison

According to the preliminary draft of the new constitution, for a person to be eligible for citizenship based on descent, his/her both the parents must be citizens of Nepal. But the Constitution of Nepal-1962 stated that a person whose one of the parents was born in Nepal at the time of commencement of the constitution shall get citizenship.

Thus, based on this provision, it can be said that the preliminary draft is ‘complex and rigid’ than the Constitution of Nepal-1962.

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