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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