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By Prof. Maurice Cauchi & Dr Edwin Borg-Manché   |   While most citizens welcome the option of possessing a second citizenship, and many are even prepared to spend millions to possess one, recent events in Australia have highlighted the problems which a second citizenship can unwittingly lead to. Several members of the Federal Parliament have had to resign on finding out that, unbeknown to them, they had also a foreign citizenship through birth in another country or by descent and were ineligible to take a seat in Parliament.

They or their parents were born in Canada, New Zealand, Italy or elsewhere, and did not realise that they or their parents being born in a foreign country is sufficient to make them ineligible to serve in Parliament.

While the benefits of double citizenships are widely known and acknowledged, much less is known about the drawbacks of possessing such multiple citizenships.

Section 44 of the Australian Constitution lists the grounds for disqualification from contesting an election to the Parliament of Australia.  Section 44 (i) provides that “Any person who is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.”  By implication, this provision requires members of parliament to have allegiance only to one country (Australia) and, therefore, anyone possessing dual or multiple citizenships would be ineligible to contest parliamentary elections.

What makes compliance with Section 44(i) a rather complex matter for many is the reference to being “entitled to rights or privileges of a subject or citizen of a foreign power”, as it typically would not require a voluntary act to be so entitled.  Let’s not forget that, in reality, everyone living in Australia (except for those of pure Aboriginal heritage) is a migrant or a descendent of a migrant and, therefore, with some family heritage links to a “foreign power”.

The most recent case to come to light is that of a Senator born in Australia in 1959, the son of a Cypriot migrant who emigrated to Australia in 1951. The Senator was deemed to be a Colonial UK Citizen by virtue of the British Nationality Act 1948, which was in force until 1983.  Cyprus became independent on 16 August 1960.  At the time of independence every Cypriot lost their colonial UK citizenship status.

According to the Senator’s published official statement, he “would have lost that colonial status as well, if [his] father was living in Cyprus at the time. or in any other country in the world except, according to the then British Nationality Act, these nine countries: Canada, Ceylon (now Sri Lanka), India, New Zealand, Pakistan, Union of South Africa, Southern Rhodesia (now Zimbabwe), Newfoundland (then a separate dominion, now part of Canada) and Australia.”

The UK Home Office advised the Senator that “this whole scenario is a “rare peculiarity”.  Citizens of the UK and Colonies – CUKCs – without the right of abode in the UK, were reclassified as British Overseas Citizens (BOCs) on the 1st January 1983, after British nationality legislation was modernised.”

It would appear that, since Malta was a British colony like Cyprus, the same provisions in the British Nationality Act 1948 are likely to have applied to any Maltese person living in one of the above list of countries, who would have retained their colonial status when Malta became independent in 1964.  So, in effect, aspiring Australian politicians of Maltese descent born in Australia with similar circumstances as this Senator’s could face the same predicament.

When the Australian parliament resumes in September, the Senator will be seeking the support of the Senate to refer himself to the High Court of Australia, sitting as the Court of Disputed Returns, to determine his eligibility to sit in Parliament. The outcome of this case would, therefore, be of special interest to members of the Maltese community in Australia.

Citizenship in Malta is currently based on blood relationships (jus sanguinis). Prior to 1 August 1989, citizenship was based on the principle of jus soli, i.e.  anyone born in Malta was considered to be a citizen, but this is no longer sufficient to claim citizenship.

Dual citizenship was very restricted since Independence (1964) but all restrictions were removed in February 2000.  From then on, with the adoption of the principle of ‘once a citizen always a citizen’, it became difficult to renounce Maltese citizenship.  Any person, either of whose parents was a Maltese citizen, automatically obtained Maltese citizenship , often without appreciating it, and always without acknowledging it.

Many countries around the world allow dual citizenship, including most countries of Europe, North and South America, as well as Australia. This can lead to conflicting situations. Up to April 2002, Australia did not recognise multiple citizenships, a situation which raised several problems.  In fact, any person who did ‘any act or thing’ to acquire a nationality or foreign citizenship’ would have automatically lost Australian citizenship.

For instance, in the 1980s one had to renounce Maltese citizenship when applying for Australian citizenship, which was essential to occupy certain positions and professions.  In fact, anyone who acquired Australian citizenship before April 2002 had to surrender their Maltese passport.

In 2000,Maltese citizenship law was changed, so that anyone who had to give up their Maltese citizenship on acquiring or retaining the citizenship of any other country, is “deemed not to have ever ceased to be a citizen of Malta,” provided they resided in any country outside Malta for an aggregate period of at least six years (Maltese Citizenship Act (Cap.188), Section 9).

While there are currently no persons of Maltese descent serving in the Australian Federal Parliament, it is conceivable that in the future this might be the case. Section 9 of the Maltese Citizenship Act, could potentially cause significant problems for people of Maltese descent wishing to become members of the Australian Parliament, particularly those who acquired Australian citizenship before 2000 (when Section 9 was enacted) and had even renounced Maltese citizenship in the process. Under Section 9 they automatically reverted to being citizens of Malta in 2000, reversing the effect of their prior act of renunciation.

Does Maltese legislation allow those with dual citizenship to serve as parliamentarians?  This is particularly relevant given that it is currently estimated that there are more Maltese citizens worldwide with a double citizenship than with only Maltese citizenship.

The qualifications for being elected as a member of the Parliament of Malta are set out in the Maltese Constitution.  Section 54 (1) provides that “No person shall be qualified to be elected as a member of the House of Representatives – (a) if he is a citizen of a country other than Malta having become such a citizen voluntarily or is under a declaration of allegiance to such a country.”

In contrast to Section 44 (i) of the Australian Constitution, Section 54(1) of the Maltese Constitution appears to allow persons with dual citizenship to be elected to Parliament, provided that they have not become a citizen of another country voluntarily and are not under a declaration of allegiance to such a country. This means that any Maltese citizen, who is also a citizen of another country by reason other than voluntary acquisition or declaration of allegiance, such as, by birth, is qualified to be elected to the Maltese Parliament. 

In an age when the demographic composition of Malta is rapidly changing, it is probably becoming relevant to ask the question whether members of Parliament should owe allegiance to Malta only and to no other country, regardless of how the foreign citizenship was acquired or the circumstances resulting in being a citizen of another country.

[First published in The Sunday Times of Malta on 24.09.2017].

 

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