Dual-nationality status question may disqualify voters and MLA

Written for the October 7, 2022 issue of Penguin News. Printed under the headline “Dual nationality status may disqualify voters and MLA”.

Questions surrounding dual nationality have been raised which could potentially leave a Legislative Assembly seat empty and trigger a by-election, as well as remove the ability to vote for an unknown number of Falklands residents.

Following MLA Teslyn Barkman receiving New Zealand status early in 2022, attained by descent as her father was a New Zealander, queries were raised surrounding a phrase which appears in the Constitution on grounds for disqualification for election, and disqualification of electors.

The constitution states that an individual is not qualified to be registered as an elector, or to be elected as a member of the Legislative Assembly if they are, “by virtue of his or her own act, under any acknowledgement of allegiance, obedience or adherence to a foreign Power or State.”

This has been interpreted as meaning that an individual who has taken a dual citizenship with another nation by their own action cannot vote or stand for office.

Penguin News spoke to Attorney General Simon Young on the matter of law surrounding the issue.

Mr Young clarified that key to this consideration is the phrase “by virtue of your own act.”

“I think it is only going to affect people who have taken steps, probably taken steps as an adult, to obtain a second nationality.”

For example, if a Falkland Island status holder had taken steps to attain Chilean dual nationality as an adult, they could be potentially affected by this provision in the constitution.

Mr Young noted, however, “there’s not really any court cases that have ever interpreted these provisions, so that’s one of the things we would potentially be looking to do.”

While he was unable to speak specifically about the case of MLA Barkman, Penguin News asked whether, if a court case is to go ahead, this would set local precedent.

Mr Young said that when determining, “extremely important rights of individuals, or determining roles of individuals” it is important to “go to the court and ask the court to confirm effectively that our understanding is correct, or it isn’t correct.”

A similar issue arose in Australia, which has a similar provision in their own constitution, in 2017. Five politicians - including the deputy Prime Minister - were disqualified from parliament for having dual citizenship when they were elected.

In the case in Australia it was ruled that all dual-citizenship holders, including those who held it from birth and not just those who voluntarily obtained or retained it, were unable to hold office.

On this matter Attorney General Simon Young said, “whilst the provisions of the Australian constitution are very similar to the provisions here they are different, so different outcomes would probably occur here as occurred there.”

Assuming the decision of the court is that those who have voluntarily obtained dual citizenship are ineligible to vote or stand for Assembly, Penguin News asked if previous Executive Council votes cast by MLA Barkman since getting New Zealand status, or election votes cast by affected dual citizenship holders, would have to be recounted.

Mr Young indicated that “we can safely rely” on a declaration of the court going from the stage of their decision onwards.

“Everyone who was on the electoral register at the time the election took place, they were legitimately there.”

Asked what it would take for this section of the constitution to be changed, Mr Young explained that the Foreign Commonwealth & Development Office (FCDO) have “previously said that they want to see that changes to the constitution have popular support.”

He said that the ways to prove support “depend on the nature of the change that’s being sought.”

He explained that in other territories noncontroversial and unanimously supported changes have been made without a referendum, while changes to executive political structures have required referendums.

“There would certainly have to be something to indicate that generally the Falkland Islanders supported making that change,” Mr Young concluded, “that could be a robust consultation, that could be a referendum, it could be something else.”

On whether he felt there was any significant benefit to such a provision in the constitution, he said it is a matter for “each territory or country to decide” but pointed out that in many nations there is a difference between qualification to vote and qualification to stand for office, whereas in the Falklands the provisions are identical.

On what may need to be considered in the likely court proceedings ahead Mr Young reiterated the importance of the phrase “by virtue of your own act” - noting that differences between whether status is achieved by birth or descent; whether someone’s parents made an application on their behalf; whether an oath has to be made when attaining status; and a range of other issues.

Attorney General Young said while the case “could be shorter or could be longer” he would expect it would be three to four months of consideration before a decision is made.

He noted that as there are matters of “significant public interest” in the case, and that other individuals may seek to be represented as they may be affected by its result, and this could alter the length of the case.

Penguin News spoke to MLA Barkman about the issue, who said that she hadn’t imagined this issue when taking her dual nationality with New Zealand, and the news had come as “a horrible shock.”

“As the Falklands are a liberal and proud member of the UK family, and dual citizens can vote,” MLA Barkman said, “I didn’t even give it a second thought to be honest.”

On her feelings regarding the issue MLA Barkman said “someone in my office is always going to be under particular public scrutiny, but I still maintain that I don’t think the interpretation around this is fair.”

Associated editorial from Nicholas Roberts as deputy-editor, same issue.

Issues like the one on the front page this week are why I, and any more knowledgeable civics nerds you may know, go on and on about the importance of the constitution and the regular review of it.

On the surface of things a constitution isn’t a sexy topic. Pages and pages of legalese in its truest, rawest, form. Phrases such as: “Except so far as that provision or, as the case may be, the thing done under its authority is shown not to be reasonably justifiable in a democratic society” appear multiple times in the document.

Do you know what that exact phrase appears in? The protection of your: right to education, freedom of expression, freedom of assembly and association and, freedom of movement.

That document, which can make Tolkien fans’ eyes glaze over, is what dictates our way of life.

I feel the utmost sympathy for MLA Barkman in this issue. I can’t confidently say that I would have thought about whether I would lose my right to vote, or the opportunity to stand for Assembly (that isn’t a commitment, don’t expect an MLA Roberts II in the near future). But this is why we need to look at the constitution thoroughly and regularly. I’d imagine that a well reviewed constitution should be like a road: it’s being done well if you don’t have to think about it.

I don’t know how many people this will affect, if the current interpretation even gets upheld in court, but the people who will be affected will largely be Falkland Islanders who have taken an interest in their heritage overseas. People with an interest in travel, experiencing the full opportunities of the world, all while maintaining a connection to the Falklands. It’s a very Falklands way of things, such a large part of Falklands life is the people who leave for college and university, or just to experience other parts of the world, and then return with exciting new ideas. If people go to another country, decide they like it well enough that they want to partake in its democracy, and then want to come back to the Falklands and get involved here too - I personally feel that we should welcome that rather than punish it.

I’d like to add that this is no criticism of the interpretation of the Attorney General. I’d be lying if I said that no part of me thought “the whole legal profession is interpretation, interpret it differently” - but I know that isn’t how it works.

There’s a lot to be considered in the future, and I’m of the understanding that should this come to court the matter will likely be at least partly public, due to the significant public interest of the issue, so watch this space in the coming months.

Nicholas Roberts