Unequal by design

Behind the ivory colored walls of Singha Durbar, lawmakers tinkering with the draft constitution keep finding new wordings to deny women equal rights to men.

Photo: Stephan Bachenheimer

On August 9, 2015, the Political Dialogue and Consensus Committee (PDCC), tasked with resolving contentious constitutional issues, released a list of revisions to be made to the draft constitution. There were expectations that the revisions would include suggestions from the public that would make the draft gender equal by allowing either a mother or father to pass on citizenship to their child, instead of making it mandatory for both father and mother to hold Nepali citizenship.

The “and” clause has received widespread criticism because it denies fathers and mothers the right to pass on citizenship independently of one another. Such restrictive phrasing threatens to increase the number of people left stateless, which the UNHCR estimated in 2011 to be around 800,000.

But provisions that effectively deny women a status equal to men’s remain unchanged. In fact, the chapter on citizenship has been made more gender unequal. Calls for the “or” clause seemed to awaken lawmakers only to the pitfalls for Nepali men.

Before the revisions were released, many believed that the restrictive “and” would have to be replaced with “or” because it affected Nepali men: they would become reliant on their wives’ citizenship to provide citizenship through descent. But in a clever move aimed at protecting men’s rights, the PDCC changed one of the provisions to say that a person whose father or mother is Nepali at the time of his or her birth can become Nepali by descent (11.2.2). On the face of it, it seems to accomplish what women’s rights activists have been demanding all along, but the subsequent clauses nullify this provision. Articles 11.3 and 11.4 clearly state that both parents have to be Nepali for their children to be Nepali.

Subin Mulmi, an advocate with Forum for Women, Law and Development, says, “The ‘or’ provision will be interpreted as a general law, but applicable to only Nepali men. Women will be governed by the subsequent specific laws.”

Protecting Nepali fathers at the expense of Nepali mothers

One such specific law (11.6 in the revised draft) demands that a single Nepali mother prove that her husband is not a foreigner before her child can be officially recognized as Nepali. This provision, also included in the Interim Constitution and the Citizenship Act 2006, has been used to deny children of single Nepali mothers Nepali citizenship unless the mother is willing to allow the Chief District Officers to write “identity of the father unknown” on her child’s citizenship papers. There are no such specific laws for single Nepali fathers.

The provisions on naturalized citizenship have also been amended to protect Nepali men. Before the revised draft was released, children of Nepalis, irrespective of gender, married to foreigners, were to receive naturalized citizenship—unless the foreign spouse acquired Nepali citizenship before the child came of age, in which case the child would have received citizenship through descent. Now, only the children of Nepali women married to foreigners who do not take Nepali citizenship will receive naturalized citizenship. This again proves that the “or” clause only applies to Nepali men.

Many lawmakers seem to see the children of Nepali women and their foreign partners as a threat to their position of powerThe argument for the “and” clause has always been the perceived inequality between daughters-in-law (buhari) and sons-in-law (jwai), especially when they are foreign. Many lawmakers seem to see the children of Nepali women and their foreign partners as a threat to their position of power, often euphemized as a threat to nationality. Influential leaders such as Bhim Rawal and Madhav Kumar Nepal of the CPN-UML have said that Nepal cannot be liberal with citizenship provisions because it is a small country with limited resources. They argue that if mothers are allowed to pass on citizenship, foreign spouses of Nepali women (especially those from India and China) will become Nepali and usurp Nepal. This argument is little more than sexism and xenophobia—essentially, beware the foreign man whose allegiance will never truly be to Nepal; he will marry our daughters, influence our elections, and quietly control our nation from within.

“Bizarrely, they think that the children of foreigner daughters-in-law are more pure-blood Nepalis than children of foreigner sons-in-law. They think that everything—face, culture—about the children of foreigner sons-in-law will be different,” says Mulmi.

In an interview, Baburam Bhattarai, chairperson of the PDCC, clarified this notion of “purity of blood” by saying that some leaders still believe that only men have a hand in producing babies. “They still believe that women only provide a womb for babies, which they think are inserted by men. They do not believe that 50 percent of the genetic material in babies comes from mothers. That’s why they inserted the ‘and’ in article 11.4 and that’s why they are unwilling to provide citizenship by descent when it comes to children of Nepali women and foreigner men,” says Bhattarai.

Women’s rights activists involved in campaigns to change the gender-unequal provisions believe that street protests and dogged lobbying will change the controversial provisions, but only insofar as the children of Nepalis are not rendered stateless. “They will try to protect the children, but the provisions will still remain gender unequal,” says Mulmi.

It doesn’t look like women will be equal under the law any time soon.

Published on 8-20-2015, The Record

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