Refugee from Bhutan: Nationality, Statelessness and the Right to Return

Bhutan's three sets of nationality laws prohibit dual nationality for Bhutanese nationals.^[45] The 1958 law is clearly prospective, as is the 1977 amendment except where citizenship requirements overlap with the 1958 law. The 1985 Act largely overrides the 1977 amendments in terms of citizenship requirements but its retroactive tenor requires deeper analysis.

2.2.1 Acquisition of Bhutanese Nationality

Under the 1958 Nationality Law of Bhutan, a person acquires Bhutanese nationality if he has resided more than 10 years in Bhutan and owns agricultural land, has reached the age of majority and takes an oath of loyalty to the King after the petition to the King's official has been accepted.^[46] Since most of the Lhotshampas are farmers, the provision for ownership of land was clearly inserted with them in mind. As an alternative to land ownership, an adult person is eligible for Bhutanese nationality if that person has served the Bhutanese Government for at least 5 years and resided ten years in Bhutan.^[47] However the law does not provide that residence or ownership of land should commence at a certain time. Those who settled in southern Bhutan in or before 1948 immediately qualified for Bhutanese nationality if they were of the age of majority. But an adult who came later, say in 1965, would only be eligible in 1975 if he owned agricultural land. The benefit of citizenship is not extended to sharecroppers and landless people.

For a grant of citizenship under the 1977 Citizenship Act, the period of residence was dramatically increased from 10 years to 20 years for those not in government service,^[48] whereas the period of government service was also increased from 5 to 15 years.^[49] A significant difference from the earlier Act is that the requirement of land ownership was dropped. However, a new requirement was inserted to the effect that the applicant should be able to speak and write the Bhutanese language, Dzongkha and have some knowledge of Bhutan.^[50] This requirement is a deterrent since literacy among the Lhotshampas is not high, even in Nepali, let alone Dzongkha. The cumulative effect of these requirements is to restrict the number of Lhotshampas qualifying for Bhutanese nationality.

Since the language of the 1977 Citizenship Act does not indicate otherwise, it is prospective legislation with effect from 22 March 1977. Such an interpretation is supported by section THA.1 of the 1977 Citizenship Act, which envisages that provisions of the 1958 could exist side by side with the 1977 amendments. Those who came as late as 21 March 1967 could still qualify under the 1958 Nationality Law but those who came after that would be caught by the requirements of longer periods of residence and Government service. According to the 1985 Citizenship Act, a person who is 21 years old or 15 if either parent is a Bhutanese citizen, and is of sound mind may apply for naturalisation if the following additional criteria are met. Government employees must prove 15 years residence while those not in government service must have one parent who is a Bhutanese citizen, as well as 20 years residence. In addition, the period of residence must be in the census records.^[51] The most stringent -requirement is a sound knowledge of Bhutanese history, culture, customs and traditions and the ability to speak, read and write Dzongkha well. The other additional requirements are a good moral character and no criminal record. Lastly, if all these requirements have been met, the applicant should not have any record of disloyalty to the King, Country and People, and must pledge an oath of allegiance to the King, Country, and People.^[52] In effect, this means that a person should have arrived in Bhutan at the latest by 10 June 1965 in order to-qualify for citizenship under the 1985 Citizenship Act. However, such a person would have already qualified for Bhutanese nationality by 10 June 1965, twenty years before the 1985 Citizenship Act came into force. A grey area thus exists for those who arrived between 10 June 1965 and 21March 1977. In principle, it would be inequitable and unjust to insist on the application of' the 1985 Citizenship Act to them and against the principle of statutory interpretation which seeks to minimise the negative impact of legislation on those affected. According to this principle, the citizenship requirements of the 1958 and the 1985 laws under discussion should co-exist with the 1958 Act remaining effective until 21 March 1977. At the same time, the 1985 provision is in clear conflict with section KA of the 1977 Citizenship Act. The residency and service periods clearly overlap, such that this provision of the 1985 Citizenship Act would prevail with effect from 22 Marc 1977.

In summary,, the individual and cumulative effects of the citizenship requirements of the 1958 law did not amount to a one-time conferment of nationality on the southern Bhutanese, but rather paved the way for integration of each generation of immigrants mainly in the south. If it did, the enabling section 4(a) should have specified a deadline for eligibility to avoid ambiguity. Seen in perspective, the Lhotshampas, mainly land owning farmers, easily acquired citizenship under the 1958 Nationality Law until 1967. Few would have acquired citizenship under the 1977amendments because of the overriding provisions of the 1985 Citizenship Act.

2.2.2 Loss and Deprivation of Nationality

In general terms, those who acquired citizenship under the 1958 and 1977 Acts could lose their citizenship pursuant to provisions in both laws, and until the 1985 Act became operative. The question is whether certain provisions of the 1958 Act and the 1977 Act on this issue remains valid even after 1985. Deprivation of citizenship is found in all three statutes, which therefore merit comparison and analysis in view of the voluntary migration forms signed by many. Still, the main issue remains, whether section 3 of the 1985 Act retroactively and unfairly deprived a large proportion of the Lhotshampas of their Bhutanese citizenship.

2.2.3 Loss of Nationality

Two provisions of the 1958 law on loss of nationality survive the 1977 and 1985 laws, and both are relevant to the refugees: Loss of nationality is thus provided for in section 6(d), in the case of anyone registered as a Bhutanese national who has left his agricultural land; and secondly, in section 6(e), in the case of anyone who. being a bona fide national fails to observe the laws of the Kingdom. This is supported by section -NGA.1 of the 1977 law which provides for re-application of citizenship by a Bhutanese citizen who returns after having left the country for an unspecified period of time. Renunciation of Bhutanese nationality is not required if one has settled in a foreign country.^[53]

The 1985 Act provides that a person who acquires another citizenship loses Bhutanese citizenship but the spouse and children remain Bhutanese if they are domiciled in Bhutan and registered with the Home Affairs Ministry.^[54] If the children of Bhutanese parents leave the country voluntarily and without the knowledge of the Bhutanese Government and where their names are not also recorded in the citizenship register of the Home Ministry, they also lose their citizenship.^[55] This provision is puzzling because it is not clear whether 'children' means those who have yet to attain the age of majority, that is, 21 under Bhutanese law, or all children including adult children. In either case, this presents an artificial choice for minor children who are still dependent on their parents.