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

A foreigner who has been granted Bhutanese Citizenship may apply to the Royal Government for permission to emigrate with his or her family. Permission will be granted after an investigation of the circumstances relating to such a request. After grant of permission to emigrate, the same person may not re-apply for Bhutanese citizenship. In the event of adult, family members of any person permitted to leave the country, who do not wish to leave and makes an application to that effect, the Home Minister will investigate the matter and will permit such persons to remain in the country after ascertaining that the country's interest is not harmed.

The term 'foreigner' is not defined in the Act, but the context of this section suggests that it refers to a person not originally from Bhutan who qualified for and obtained Bhutanese citizenship under either the 1958 Act or the 1977 amendments. Arguably children and descendents who obtained nationality by birth under section 3(b) of the 1985 act should not be included in the definition of 'foreigner'. Since the section forbids such a foreigner to re-apply for citizenship, it indicates that the term does not include those who obtained citizenship by birth. Another issue is the definition of the term 'family'. Does this include only the nuclear family comprising parents and all unmarried children or does it mean the extended family? What about adopted children? In the social and cultural context of the Lhotshampas, the term may well refer to the nuclear family, since it appears that the custom is to set up a separate household once a person is married. In any event, voluntary migration forms signed by Bhutanese nationals who obtained citizenship by birth under the 1958 Act would appear to be invalid and illegal.

During the course of interviews with refugees conducted by the authors, many such certificates of approval for emigration were examined and found to carry the statement in Dzongkha that 'This court on verification found above applicant to have done so on his own will '.^[56] The implication then is that migration is a serious matter since re-application for Bhutanese citizenship by the same person is forbidden. Hence, evidence that the application was made as a result of any inducement, threat or promise from sources capable of harming the applicant or his family would be relevant. Allegations that coercion was used to induce the signing of voluntary migration forms therefore need to be thoroughly investigated, including any independent evidence that coercion was used, such as periods of detention, beating and torture of applicant prior to signing the voluntary migration forms.^[57] Evidence of threats by persons in authority, such as police or army personnel, which are just as likely to be taken seriously, must also be carefully assessed.

Another reason for regarding the signed voluntary migration forms with caution is section NGA.3 of the 1977 Act which provides:

If anyone, whether a real Bhutanese or a foreigner granted citizenship, applies for permission to emigrate during times of crisis such as war, the application shall be kept pending until normalcy returns.

Although situations other than war are not spelled out, it is reasonable to assume that situations of civil war, internal conflict, unrest and general insecurity would fall within the definition of 'crisis'. The protests and demonstrations in late 1990 had certainly resulted in a situation of unrest and general insecurity. Thus the grant of permission to migrate during that period of general insecurity, whether to a Bhutanese or to a foreigner, seems to be in direct contradiction to this provision. On the strength of this provision alone, the validity of the voluntary migration forms is also in grave doubt.

For those who left Bhutan without signing such voluntary migration forms and who had left agricultural land behind in Bhutan, section 6(d) of the 19558 Citizenship Act appears to be the operative provision. This is likely to affect a large number of the Lhotshampa refugees who were farmers in Bhutan. Since the refugees did not leave under normal circumstances, the section should not operate so as to result in the loss of Bhutanese nationality.

The above discussion on loss of Bhutanese nationality reveals the difficulties not only with the relationship of the nationality laws in practice, but also with the interpretation of particular sections and inadequate guidance from the legislation on the definition of terms. In the author's view, the voluntary migration forms are invalid. Moreover, in the light of' the abnormal circumstances of unrest and general insecurity surrounding the refugees' departure, the other sections of the 1958 and 1985 Acts should not operate to the prejudice of the Lhotshampa.

2.2.5 Deprivation of Nationality

Under the 1985 Act only naturalised citizens who are disloyal to the King, Country and the People will be deprived of nationality.^[58] This provision overrides similar provisions in the 1958and 1977 laws.^[59]Support for this interpretation may be derived from the fact that Bhutanese by birth, as opposed to those who acquired Bhutanese nationality, are subject to capital punishment under the law on treason and anti-nationals.^[60]

The application of the 1985 Act means that only the Lhotshampa refugees who are naturalised citizens may be deprived of Bhutanese nationality for disloyalty to the King, Country and People of Bhutan. What amounts to disloyalty is not spelt out, but certainly a full inquiry into all the allegations would be necessary. An explanation by the person whose Bhutanese nationality is in jeopardy is equally important to establish the truth of the matter before deprivation of citizenship is ordered. In view of the impasse between the Bhutanese Government and the Lhotshampa refugees, it is highly probable that deprivation of nationality for disloyalty would be an issue for a small but perhaps significant number of the refugee leaders.

2.2.6 Retrospective Deprivation

The most controversial provision is section 3 of the 1985 Act which purports to lay down a 31 December 1958 cut-off date for those entitled to citizenship by registration.^[61] Not only must the person prove permanent domicile on or before the given date, his or her name must also be on the census register maintained by the Ministry of Home Affairs.^[62] Refugee leaders have pointed out that the Ministry of Home Affairs was only set up much later.^[63] Whether or not all the census records kept by the Mandals (village headman) prior to its establishment have been properly replicated and forwarded to the Ministry is a moot point.

2.2.7 Presumption Against Retrospective Laws

Retrospective legislation is possible in virtue of' the principle of the supremacy of' Parliament in English common law.^[64] The courts have developed certain principles to restrain the exercise of this wide-ranging power in order to strike a balance between the effects on the individual and the claims of public interest. First, there is a presumption against retrospectivity when legislation is under scrutiny. In general, an ambiguous law will have prospective application, but where the intention of the legislature is clear, such legislation will be retrospective. In applying the presumption against retrospectivity distinctions have been developed between vested rights and existing rights, past events and present characteristics, beneficial and prejudicial consequences, substance and procedure.^[65] In civil matters, the presumption against retrospectivity has been applied in cases involving penalties, while it is strongest in relation to criminal and penal statutes.^[66] This means that laws prejudicial to the individuals concerned are seldom given retrospective effect.^[67]

Section 3 of the 1985 Citizenship Act changes the criteria of eligibility for those who qualified for citizenship in 1958 only. The naturalisation criteria of land ownership and ten years' residence for those who came after 1958 remains unchanged until 21 March 1977, after which section 4 of the 1985 Act became operative. Section 3 of the 1985 Act could well be interpreted as the missing section of the 1958 Act on citizenship, which deemed a section of the population as nationals according to the given criteria. If it had been an express provision of the 1958 Act, it would have made perfect sense. But to introduce it thirty years late, for whatever reason, was bound to create a host of unfortunate consequences. A careful examination of its requirements reveals the difficulties inherent in a retroactive provision. Section 3 uses domicile and census records with the Home Ministry as proof of eligibility in 1958. Domicile is a concept in English law, meaning a permanent home or place where a person lives with the intention of remaining there for an indefinite period of time.^[68] It is different from residence, which implies merely the physical fact of being and living in a particular place; it is residence coupled with an intention to live indefinitely in the place. So a person who has lived in Bhutan for two years and intends to stay would qualify in theory provided his or her name is on the census records, and whether or not he or she owned land. In practice, many factors are usually, taken into consideration in determining the domicile of a person. In theory, even if the people no longer had the requisite documents by the 1980s, or other proof of domicile, the records of the Mandals kept for the purpose of tax and labour duties should contain sufficient proof of their nationality status. Those unable to prove that they were domiciled in Bhutan in 1958 would still be able to claim citizenship under the other provisions of the 1958 Act or the 1977 Act, especially if they had been issued citizenship cards after the 1980 census.

In practice, reports of the 1988 census indicated that not only did the implementation of section 3 leave much to be desired, but the erroneous if not arbitrary interpretation of the 1985 Act vis-à-vis the earlier Acts caused a great deal of confusion and fear among the Southerners. The seven categories of the 1988 census did not reveal clearly the interpretation and the relation of the three successive citizenship laws.^[69]

After the 1990 protests, there were reports of people being coerced to sign voluntary migration forms. Other reports alleged further arbitrary implementation of the provisions of the 1985 Act.^[70] One refugee woman explained to the author that during the 1991 census, her father-in-law was classified under F-5 (non-national man married to a Bhutanese woman), whereas her husband was put into F-1. This was because her father-in-law could verify where her husband was born, but there was no one to verify where her father-in-law was from. She was classified under F-4 (non-national woman married to Bhutanese man), because she could not obtain a certificate of origin from her parents' village in Bhutan. As a result her citizenship card was confiscated. Another refugee woman told how her parents were categorised as non-nationals under F-7 during the 1992 census, because they could not produce any documents and the village elders were not asked to identify and vouch for the people in their village. However, she and her husband were both categorised, as genuine Bhutanese nationals as were her children. The implication is that provisions of the 1958 and 1977 Acts pertaining to citizenship by birth and naturalisation do apply; or that application of the 1985 Act was arbitrary. A third refugee woman married to an Indian national said that her citizenship card was confiscated by immigration and census officials who claimed that her father's name was different from that in their records. Another refugee woman recounted that her husband was classified as a returned migrant under F-2 during the 1989 census because he had been away for two months visiting relatives in Nepal just prior to the count. Apparently, he was subsequently threatened with imprisonment or fine of 5,000 rupees unless he signed an agreement that he alone would leave Bhutan. He signed and left in December 1990. The same woman stated that eventually the Dungpa, or Subdivision Officer, forced her and her father-in-law her to leave in April 1991.

2.3 Municipal Remedies

Section 4(3) of the 1958 Nationality Law states that:

If any person has been deprived of his Bhutanese Nationality or has renounced his Bhutanese Nationality or forfeited his Bhutanese nationality, the person cannot become a Bhutanese National again unless His Majesty the Druk Gyalpo grants approval to do so.

In the context of the hereditary monarchical system of Bhutan, the sovereign is the final arbiter on the important issues affecting Bhutanese people and Bhutanese life, which implies that this provision overrides later legislation regarding restoration of Bhutanese nationality.

The 1958 Act does not provide the mechanism for obtaining the approval of the King for the restoration of nationality. It may well suffice to petition the King directly with the facts and evidence of the illegal deprivation or forfeiture of nationality in order to appeal for restoration of nationality.

2.4 Constitutionality of Retrospective Legislation

The constitutionality of the retrospective provision of the 1985 Act is a delicate issue. Ura presents a rosy picture of Bhutan developing in terms of the concept of the separation of powers.^[71] Parmanand lauds Bhutan's method of government as being based on an unwritten Constitution not unlike that of Britain.^[72] Dhakal and Strawn criticise this comparison, arguing that unlike Britain, basic freedoms are not guaranteed in Bhutan.^[73] They assert further that the issue is not whether the constitution is written or unwritten, but rather whether rights and freedoms are respected and protected in the laws of the land.

Bhutan to this day is an absolute monarchy even though constitutional changes are underway. In practice, the King wields supreme power since he can return bills to the National Assembly for further consideration, and even though the National Assembly has had the power since 1969 to remove the monarchy by a two-thirds majority vote.^[74] There is no doubt that the National Assembly, with the assent of the King, can pass laws with retrospective effect. The issue is whether there are any checks on this form of parliamentary supremacy in Bhutan, and whether citizens of Bhutan have fundamental rights from which there can be no derogation.