MercoPress. South Atlantic News Agency

Falklands constitutional debate: can dual nationals vote and stand for office?

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

Questions surrounding dual nationality have been raised in the Falkland Islands, 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 lawmaker 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.

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 Mr. Young 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.

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 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,” since ”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.”