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Nationality,
The Core Issue
Questions of
nationality and methods employed to determine citizenship form a backdrop for
all other issues and events in southern Bhutan. Bhutan's first attempt to define
its citizenship came with the Nationality Law of Bhutan in 1958. This act was
updated in 1977 and again in 1985 (all of these acts are reproduced in full
in Appendix 1). The government attributes great significance to these laws as
"all that stands between overwhelming demographic pressures and the
survival of the Bhutanese people as a distinct political and cultural
entity."[29] Surely these laws are
important, but the texts of the law are relevant only to the extent they
influence implementation. The variance with which Bhutan has interpreted and
applied nationality policies makes practical political realities outweigh the
niceties of legal analysis. Still, since attempts to implement these laws are an
integral part of the crisis, an understanding of the migration from southern
Bhutan is not possible without some review of the laws. Although such a review
of the laws raises more questions than answers, it is also necessary since the
laws provide part of the framework for political decisions which may determine
the fate of the refugees.
Acquiring
Citizenship, as Written
The 1958 law states
"any person can become a Bhutanese national" and provides three
avenues. First, through a father who was a Bhutanese national at the time of the
child's birth. Second, through a petition to an official appointed by the King
if the applicant had been resident in Bhutan for more than ten years and owned
agricultural land (or served satisfactorily in Government service for at least
five years). Third, a woman married to a Bhutanese national could petition the
official to be enrolled as a Bhutanese national. The last two of these three
methods required an oath of loyalty.
Growing cultural
concerns are reflected in the 1977 act which added the requirements of knowledge
of the Bhutanese language and Bhutanese history, and
increased the residency requirements to 15 years for government servants and 20
years for all others. The act specified the loyalty oath in more detail,
including reference to the three elements of King, Country and People, or tsa-wa-sum.
Foreigners married to Bhutanese were not considered citizens, but had to
apply as other foreigners, removing the third category of the 1958 law. Children
of mixed marriages became citizens only if the father was a citizen.
The 1985 act
provides for citizenship by birth, by registration, or by naturalization. A person
whose parents are both citizens of Bhutan is a citizen of Bhutan by
birth. A person permanently domiciled in Bhutan on or before 31st
December, 1958, and whose name is registered in the census register maintained
by the Ministry of Home Affairs is a citizen of Bhutan by registration.
Eligibility for naturalization requires residence of 15 years for government
employees and those with one citizen parent, and 20 years for others,
with this period of residence registered in the records of the Department of
Immigration and Census. Naturalization also requires proficiency in spoken and
written Dzongkha and a good knowledge of the culture, customs, traditions and
history of Bhutan. Applicants must have no record of having spoken or acted
against the King, Country or People in any manner whatsoever, and must take an
oath of allegiance. The government reserves the right to reject applications for
naturalization without assigning any reason.
The laws of Bhutan
and its neighbors do not form a seamless web and the combination creates vast
potential for statelessness. For one simple example, Nepali citizenship by
descent comes through the father, as was the case in Bhutan's laws until 1985.[30]
Now that Bhutan requires both parents to be Bhutanese, the children of Bhutanese
fathers and Nepali mothers are apparently citizens of neither state.
Losing Citizenship Under Bhutanese Laws :
A Prescription for Statelessness
By
the 1958 law, a person could lose citizenship by becoming a national of a
foreign country, renouncing Bhutanese nationality, leaving agricultural land to
live outside the kingdom, or engaging in activities or speaking against the King
or the people of Bhutan. Citizenship
obtained through presentation of false information could be cancelled, as could
citizenship granted to someone who was imprisoned for more than one year within
five years of the grant. The
1977 law limits comment to revocation of citizenship based on acts or speech
against the King or government, or presenting false information when applying.
The
1985 law is only slightly different from its predecessor, terminating the
citizenship of anyone acquiring the citizenship of another country, acquiring
citizenship through fraud, or showing disloyalty by act or speech in any manner
whatsoever to the King, Country and People of Bhutan.
It adds that children who leave the country without the knowledge of the
government lose citizenship even if both parents are Bhutanese, and spouses and
children of someone acquiring another citizenship may retain their own Bhutanese
citizenship.
The
provisions of the later act prevail over conflicting earlier provisions, but the
status of uncontradicted provisions is unclear.
For example, the 1958 provision for losing citizenship for the
abandonment of agricultural land is never repeated but never expressly
overturned and presumably it survives as law.
These
laws have great potential for creating statelessness.
Under these laws, dissidents accused of anti-national activity can be
stripped of citizenship, but that certainly does not obligate other states to
grant citizenship. Similarly, if
the 1958 clause stripping citizenship from all those who abandon agricultural
land is literally applied, without consideration of the myriad reasons the
southern Bhutanese had to flee, every resident of the camps can be
"legally" declared a non-national.
Such an interpretation of Bhutan's nationality laws would run counter to
international norms such as the Universal Declaration of Human Rights'
guarantees of the rights to leave one's country and return, and to not be
arbitrarily deprived of nationality.[31]
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