GUEST POST: The withdrawal of banknote citizenship – is it unconstitutional?
This is an expert opinion on whether or not the revocation of a bought passport goes against the Maltese Constitution. I’m afraid it has to be anonymous – which is, I suppose, fortunate for the government.
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Let’s make clear what we are talking about here.
The government is selling over the counter, to persons who do not have any natural link with Malta, a package which comprises:
– Maltese citizenship
– European Union rights
– Maltese passports
– European Union passports
– Free movement through the Schengen area
– The right to vote in Maltese elections
– The right to vote in European Union elections
– Free health services in Malta and in the European Union
– Free primary, secondary and tertiary education for any children of the passport-buyer
– Possibly – the ability to acquire a new (fake) identity.
Let’s set aside for now the corrupt-practices implications of selling voting rights, and concentrate on the rest.
The Opposition is making it clear in advance, to anyone interested in the scheme, that when it is returned to government it will not recognize these purchased passports. It follows that these improvised ‘Maltese citizens’ know beforehand that they are voluntarily participating in a scheme/scam by which they pay money and receive a passport with an expiry date. They know at the outset that their bought passport is valid only as long as Labour stays in power.
“Constitutional law experts” are reputed to have said – a couple of them have even been quoted in the newspapers – that it would be a breach of the Constitution and of human rights for the Maltese government to revoke these bought passports further down the line.
Really? It certainly would be unconstitutional to deprive persons of their birthright citizenship. All other citizenships, obtained by naturalization or by registration, can be revoked for reasons established by law. Both the Constitution and the Citizenship Act say so. Both are clear on the matter.
When these “constitutional experts” say that it would be unlawful and unconstitutional to revoke passports, they are referring to citizenship by birthright, not purchase. Therefore they should say so, and be specific about it.
The purchase of a passport is a transaction made under ordinary law, and so it is regulated by an ordinary law, and can be revoked by an ordinary law.
Simple majority in Parliament gives; simple majority in Parliament takes away.
The “constitutional experts” who have been handpicked by the government and certain newspapers for their opinion know for a fact that citizenship obtained by any means other than birthright can be revoked, perfectly legally. So what are they suggesting here – that a bought passport is as unassailable at law and under the Constitution as a passport obtained by birth, while all others can be revoked?
Surely not. This would mean that those who have acquired their Maltese passport through marriage may be stripped of it under the law, but international crooks, sons of fugitive dictators and wealthy criminals on the run will hold on to theirs come what may because they are ‘constitutionally protected’.
Of course, capricious or vindictive revocations of passports, and or their revocation en masse for a particular group, may possibly be constitutionally suspect. But revocations made for valid reasons on individual scrutiny are perfectly within constitutional and human rights parameters.
The comparisons some have made with Latvia are risible. The Soviet Union, in the 1940s and 1950s, had packed Latvia with Russians and had given them ‘Latvian’ citizenship. When, many years later, Latvia gained its independence from the Soviet Union, it invited the Latvian Russians to choose what nationality to retain. Those who opted to retain their Russian nationality forfeited their Latvian citizenship.
This forfeiture was, quite naturally, considered to be a violation of human rights. Of course it was. Most of those people had been born in Latvia to parents with Latvian citizenship, had had Latvian citizenship from birth and had lived in Latvia all their lives. They had the most intimate connections with Latvia, and being forced to give up their citizenship of that country meant forfeiting their natural birthright.
This is a massive difference from a person who has no natural connection with Malta being stripped of a bought passport brokered under utmost secrecy by a commercial agent under commission from the Maltese government.
I am inviting any “constitutional expert” to quote one judgement by one reputable court in the entire democratic world which held that a revocation of a bought passport, obtained secretly, is unconstitutional or a breach of human rights. One will do. And then we will talk again.
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Funnily enough, a Maltese national loses his/her right to vote when he/she’s been away for a certain number of years.
Ineligibility to vote has absolutely nothing in common with revocation of citizenship.
A Maltese citizen can live away from Malta for most of his life and yet retain his Maltese citizenship AND obtain a Maltese passport, for himself, his children and even grandchildren.
If the same person returns to Malta as a resident, after six months he can be put on the electoral roll.
I did not mention revocation. However, giving people citizenship also means giving them the right to vote which is a governmental ploy to accumulate voters.
[Daphne – No, it doesn’t give them the right to vote, as you yourself should know. You have a Maltese passport, but have lived in England for decades, and don’t have the right to vote in Maltese elections.]
Daphne, I am assuming that these people will be sold citizenship on condition that they are based in Malta in which case they should be able to vote.
[Daphne – Oh for heaven’s sake, Joe, haven’t you been following anything at all? Why do you assume that when it has been spelled out loudly and clearly, and been discussed endlessly on this very website and everywhere else, that all that is required is a single cash payment with no requirement for residency or an address in Malta?]
Daphne – I’m sorry, but I haven’t looked well enough into this whole palaver.
I was obviously deluding myself when assuming that there could be a microscopic quantity of decency within the Labour Party. Compare that to:
http://www.theguardian.com/politics/2013/nov/06/theresa-may-great-club-uk-visa-service-launch
Most lucid.
Those accommodating constitutional “experts” are trying to provide ammunition for the benefit of a commercial entity that is trying to peddle Malta passports on offer to possibly rogue applicants who can afford the cheap price, expeditiously (and therefore with questionable due diligence) without any obligation to invest millions of euros as obliged to do elsewhere and even before the scheme is scrutinised and approved by parliament.
It all stinks to high heaven.
This isn’t Prof Ian Refalo’s style. So who is this constitutional expert whose word is final? JJ Cremona? At his venerable age?
Tonio Borg? I doubt it … it doesn’t sound like him. This is too cocky. Austin Bencini … ? Possibly, but not even.
Who is this constitutional expert, and how do we know that he is an expert?
What is the problem with naming the constitutional expert?
Have we come to a stage that experts in constitutional law are afraid of voicing their opinion now?
Double check Min Weber since I recall that one such ‘expert’ is indeed Prof Ian Refalo. I too was surprised at his ‘style’. Unless, of course I have mistaken his name for someone else.
The others you mentioned are most unlikely to make fools of themselves.
He, or she, has clearly read and understood the law, unlike you Min Weber
“I am inviting any “constitutional expert” to quote one judgement by one reputable court in the entire democratic world which held that a revocation of a bought passport, obtained secretly, is unconstitutional or a breach of human rights. One will do. And then we will talk again.”
-> And I am inviting you to quote one country in the democratic world which ever revoked a “bought passport”.
If this is an expert opinion I am really worried what “experts” are around….
Of course there will not be such cases, because no civilised country has a history of selling passports.
I have raised this issue before: one needs to question if the selling of passports in itself is a constitutional issue. If it is not, then such passports cannot be protected with “constitutional rights.”
In my very humble opinion, the sale of a passport and related citizenship is merely a commercial or civil transaction and can be undone similarly or with a legal act (e.g. a Parliament act).
But let me give you some cases which have relevance to the argument. One would need to look into specifics of each case, but some principles can be extracted:
1. Janko Rottmann v Freistaat of Bayern Case. A naturalisation citizenship can be revoked (in this case because of deception). As a consequence of this case, Mr. Rottmann lost his citizenship of the EU because he no longer held the citizenship of a Member State.
Up to 1999 Mr. Rottman had been an Austrain national, but he had been residing in Germany since 1995. In 1999 he acquired a German nationality, but under Austrian law this meant that he had lost his Austrian nationality. Later, Germany withdrew his German naturalisation, rendering Mr. Rottmann effectively without any EU citizenship.
In its decision, the European Court of Justice (of the EU) did not preclude Germany from withdrawing Mr. Rottmann’s German citizenship and did not go into the merits of whether Austria should restore Mr. Rottmann’s Austrian citizenship.
2. Genovese v. Malta. This case was decided by the European Court of Human Rights, which held that:
“…even in the absence of family life, the denial of citizenship may raise an issue under Article 8 because of its impact on the private life of an individual, which concept is wide enough to embrace aspects of a person’s social identity. While the right to citizenship is not as such a Convention right and while its denial in the present case was not such as to give rise to a violation of Article 8, the Court considers that its impact on the applicant’s social identity was such as to bring it within the general scope and ambit of that Article.”
3. In 2002, the UK government introduced a right in the law whereby the UK government can deprive UK citizens – even those with birth right – from their UK nationality. That right was introduced through the Nationality, Immigration and Asylum Act 2002. This right has been exercised in a number of cases since 2002.
Frank,
Please note British law: http://www.ukba.homeoffice.gov.uk/britishcitizenship/withdrawingcitizenship/ on the revocation of citizenship.
“We may also take away your British citizenship if, in our opinion, it would be in the public interest for us to do so and you would not be made stateless as a result of us removing British citizenship.
If you are deprived of citizenship, you stop being a British citizen on the date that a deprivation order is issued. After that you are no longer able to hold a British passport.
Any rights you may have to live in the United Kingdom may also be lost. In serious cases, you may be removed from the United Kingdom.”
A wiki post treats examples of revoked citizenships in the US: http://en.wikipedia.org/wiki/List_of_denaturalized_former_citizens_of_the_United_States
So we have two examples of relatively democratic states where revocation is contemplated at law and a number of specific examples from the US where revocation did indeed occur. We do not need to provide examples of banknote passports because this is a form of naturalisation.
All it took was a five minute search on Google.
You’re right: I cannot quote any country in the democratic world which has ever revoked a “bought passport” obtained secretly.
That’s because no country in the democratic world sells its passports secretly.
Amen.
‘A privilege, not a right’
During the previous three years, only three people had their UK passports taken away from them.
British citizenship used to be close to irrevocable for those born in Britain, but that is no longer true.
Under section 40 of the British Nationality Act 1981, as amended in 2006, the home secretary may make an order depriving a person of citizenship status if they are “satisfied that deprivation is conducive to the public good”. No reasons need be given and no court approval is required.
And, mind you, this refers to British-BORN citizens let alone anyone who bought citizenship through a hired agency. Pay special attention to Section 40.
Try this – as close as a quick cursory search turned up:
http://www.bbc.co.uk/news/uk-politics-21783475?
I premise I am not a constitional or some other sort of expert or pseudo-expert. I noticed the anonymous expert’s views stated above are more nuanced than those expressed previously as he or she states there must be a sound reason to revoke citizenship. Can those who have their citizenship revoked have a right for a refund of the money they paid to acquire citizenship?
In the US the issue has been at issue in a number of a judgments as in this case. http://en.wikipedia.org/wiki/Afroyim_v._Rusk
David, the example you provided isn’t relevant because we are talking here about bought citizenship and not citizenship by birth or naturalisation.
You sound like the love child of Franco Debono and Manuel Mallia.
In his Sunday sermon, Joseph Muscat “insisted that despite what the PN said, a future government would not be able to withdraw citizenship, even with a change of law. That would be in breach of the Constitution and the European Charter on Human Rights, as confirmed by the Attorney General and the Dean of the Faculty of Laws.” – timesofmalta.com
http://www.timesofmalta.com/articles/view/20131103/local/muscat.493074
The same source also says:
“Prime Minister Joseph Muscat said this morning that he was sure that the PN was bluffing when it said that it would withdraw citizenship granted under the Individual Investment Programme when it was returned to power.”
The PN should call Muscat’s bluff and ask him to publish the legal advice obtained. A request of this sort must be made, at least, in Parliament.
This legal advice is after all part of the rigorous due diligence that this government subjects its decisions to.
Considering that under the proposed ‘sale of passports’ scheme, total strangers are being offered by our government – without ever consulting with us – to buy rights that we the Maltese people have acquired for ourselves following struggles that have taken centuries, we are entitled to know the legal implications that the government has examined so that we can form our judgement.
And then we will talk again.
Of course, after the recent colossal failures in the government’s ability to carry out its due diligence on its own consultants, and on benefactors who offered free feasibility studies worth euro 4 million, we are entitled to doubt the government’s credentials and credibility in making sound assessments of the situations it puts itself in.
For instance, it would be good to see what articles the Prime Minister is referring to in the Constitution and in the “European Charter on Human Rights.”
For the time being, I would say that it is not even clear which “European Charter on Human Rights” the Prime Minister is referring to, since there is no specific document with such name.
This citizenship scheme is really immoral and the EU should act on it. Consider this scenario. To join the EU a country must fulfill economic and political conditions which include a stable and democratic government that respects the rule of law and its corresponding freedom and institutions.
So this citizenship scheme will effectively be rewarding those individuals who got rich by flouting all the principles on which the EU is built – and they get to become EU citizens by purchasing a Maltese passport. Incredible but true.
Not only the EU as a body, but all individual state members should react to this scheme, after all, it affects them too. They more than Malta could be the chosen homes for terrorists and other shady persons.
To make it easier for these ‘experts’, one may draw a parallel to buying property subject to ‘cens jaghlaq’, where ownership is subject to a defined time period. Upon the expiration of the time period, the property will devolve to the land owner.
The opposition has intimated that it will withdraw this scheme once it will be in government. Caveat emptor.
The whole scheme is utterly immoral. How can one justify selling citizenship and a passport to the EU to the rich when hundreds of thousands of men, women and children are trying to get into the EU because life in their native land is intolerable?
How can you look at those dead men, women and children floating in their Mediterranean cemetery and even think of launching such a scheme?
I ask : does the sale of passports law need 2/3 majority vote in Parliament? If so, then there is good chance that it won’t pass, am I right or wrong?
[Daphne – You are wrong. It is an ordinary law.]
Then they literally can ‘jghaddu minn fuq kulhadd’. What I was afraid of…
Hence they’re already being sold, prior to the parliamentary conclusions. It cannot fail in parliament.
Which is why it can also be revoked. It is ordinary law. It is a change in the Constitution that needs 2/3 majority.
Excellent treatise. It follows that since they have been forewarned that their passport may be revoked that they are aware of the risks and would forfeit their Eur650,000 purchase-price.
The one sentence that threw me is this:
“But revocations made for valid reasons on individual scrutiny are perfectly within constitutional and human rights parameters.” Meaning that scrutiny still needs to be made on an individual basis.
Let us also be clear about one thing – being a citizen of a Malta does not mean you pay tax here. Tax involves two elements – residence and domicile. Being a citizen gives you certain rights – such as free health care – without the obligation to pay tax.
And just to spell it out to certain people, that healthcare is free because WE, the persons who truly have real connections with Malta, pay taxes. So paying Eur650,000 as a one time payment is actually really cheap for all you get for it.
After Dalli’s proposal is health care still going to be free?
Absolutely.
The key problem with the sale of passports scheme adopted by the government of Malta is in fact that the government of Malta will not get any recurrent income from the new passport buyers, but the government of Malta will acquire commitments that it must honour throughout the life of those buyers, such as free health, education, services, and all those obligations that the state has towards Maltese citizens.
There is not even an obligation on the buyers to pay into Malta a minimum annual amount of tax, pension contribution, or any other charge.
There is no obligation on the buyers to make a minimum annual amount of real investment into the Maltese economy.
There is no obligation on the buyers to pay into Malta any minimum amounts of annual amounts such as rentals, fees, royalties, interests, dividends, pensions, or other annuities.
For a one-time sum of euro 650,000 (less commissions to Henley, the administrative cost of Identity Malta and so on), these individuals will clear themselves of all obligations towards the state of Malta, past and present, while burdening Malta with possibly huge future obligations.
A very well detailed account of the mess that labour is creating. So any possible buyer should be well aware that they are only buying a temporary entrance which will be revoked any minute. The secrecy is proof enough that it is shady and dirty.
Mallia insists it is not in the national interest to divulge the details and conditions of contract, or the identity of our fellow citizens.
In other words I cannot access what Henley’s doing to my rights as citizen. Citizenship is, if I may, inherently a collective, something called society.
I say the scheme itself is unconstitutional.
And that’s why it costs just Eur650,000. Labour know it will be revoked at a point in time. Which makes issuing the passport in the first place fraudulent as it is issued in bad faith.
[Daphne – No, I think the pricing has been done on the basis of ‘price ’em low and sell ’em fast’. It wants money quickly.]
None of these constitutional experts have bothered to mention that (until the PN allowed dual citizenship) thousands of Maltese lost their Maltese citizenship as soon as they became Australian, Canadian etc….
They also do not mention that upon reaching 18 years some Maltese have a year to either renounce to any other citizenship right or forfeit the Maltese one.
Can these bleeding human rights pseudo experts correct me on this?
What we are witnessing is the commodification of EU citizenship. The government has placed an exchange value on citizenship and rendered EU citizenship a mere commodity which will be brokered by a foreign firm.
The notion of citizenship is closely tied to the notion of a nation-state where the state is the sovereign entity of a nation. The word nation is derived from the Latin word ‘natio’ and refers to birth i.e. natives. It is true that birth is not the only criterion for nationality but it should be the rule. Commodifying Maltese citizenship and selling it through brokers undermines the whole idea of citizenship of a nation-state.
Ask yourself this question: if you were a rich individual with a family living in a country which does not rank high in the democracy and human rights stakes, what would you not pay for EU citizenship?
Whilst any changes to the constitution require a 2/3rds majority, is there any possibility that what they require to make this stick is intended to be reinforced by the proposed changes to the constitution that the same Dean referred to by Ciccio has already written volumes in favour of?
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Once and if the sale of passports starts happening, I take it to be a foregone conclusion that electronic voting will also be introduced so as to limit and obfuscate any surveillance and control on who, how and how many are actually voting.
It just gets better.
http://www.independent.com.mt/articles/2013-11-05/news/citizenship-scheme-to-net-half-of-pms-estimate-3099394049/
May I, a layman, dare to add to the items comprehensively listed in the package, “anonymity”, with all that it implies?
“I am inviting any constitutional expert to quote one judgement….one will do.” Sounds like Vanni Bonello.
Parliament have the right to amend any section of the constitution. Go here, scroll down to Malta to read the Maltese constitution. https://www.constituteproject.org/#/
Better by far to have an unwritten, evolving constitution as in the UK.
Nistiednek tirricerka l-principju tad-dritt kwezit.
What if this sale of passports is a huge money-laundering scheme? Money pumped by non-EU countries to the Maltese government to get a say/vote on EU affairs could be recorded on the books as originating from the passport scheme.
How are we to know with certainty the origin of this money when we don’t know how many passports are being sold and to whom?
We don’t. It is money laundering pure and simple.
Bona fide investors are allowed all over the world as is evidenced by the marked increase in Arab and Chinese investment across Europe and the States.
If the government really wanted it to be above board it would have delegated the due diligence to the MFSA which has ample tools at its disposal it check the legitimacy of the individual applying for the passport.
it would have published the names of the individuals who so purchased a Maltese passport.
It would allow itself to be transparent and accountable.
It is not, hence it indicates that the money will be dirty.
Once again Labour are turning logic and common sense on their heads. If a future government can revoke a bought passport, that, in my mind, is a very good thing.
It will be the tool to get rid of anybody who is caught abusing of our citizenship. More than that, the law should be drafted to make this crystal clear to everybody.
But after all this secrecy, Will the Government to revoke such an act , have a real list of all those who managed to get hold of a Maltese Citizenship? I assume that they would all be listed.
In theory, Identity Malta should have a list of all those persons to whom a Maltese passport was issued under the Maltese Citizenship Prostitution Scam. Presumably, Identity Malta officers will be held responsible if they cannot produce such a list.
If names of holders are maliciously dropped from such a list, it means that any Maltese passport in the possession of those holders would be considered illegal, and can lead to arrest or prosecution.
In practice, for the purpose of revocation, such list is not necessary.
Once a new government revokes all passports sold, it would be interesting to see who of the secret holders of such passports would be willing to disclose their identity in the courts and under the scrutiny of the media.
This all boils down to highly irregular dealings. And this makes us all responsible to allow such an act. This should be fought out with all the possible means.
If the government had any good intentions they would have chosen a very transparent method. The Government is avoiding transparency which means that irregular persons want a passport and freedom of movement. But what I am worried about is not the actual granting of a passport, it is the concealing of a notorious identity roaming around, that is what is really worrying. I wonder if they are actually intending to create false identities to avoid being stopped in other ports of entry.
What a shonky law. The President should refuse to sign it and send it back for review.