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Constitutional-Legal Analisis of Institute of Georgian Citizenship

30.12.2011

Mikheil Sharashidze
Lawyer of the Human Rights Center

Recently, importance of more or less relevant constitutional-legal definition of the notion of “citizen” and “citizenship” in general has become a very urgent topic due to recent political events in Georgia. Although most evaluations are oriented on political essence of citizenships of concrete people and various experts pay less attention to more thorough analyze of the institute.

The evaluations made by several lawyers and organizations, which were published by various media outlets, mostly analyzed legality of administrative-lawful point of losing the citizenship rather than constitutional-legal analyze of the problem. So, I am going to try to impartially clarify our constitutional law which regulates issues related with the citizenship of Georgia.

When defining legal norms, we should note that several methods are mainly used in the legal science:  systemic, lexical or grammar, historical-political and logical. Systemic definition of the legal norms consider place and role of the concrete legal norm in the general judicial system; what legal relations regulates; what is its place in the hierarchy of legal norms, etc. When defining lexical (grammar) norms the content of the norm is determined according to lexical meaning of the words and grammatical sequence of sentences. Historical-political definition focuses on two significant factors – what are historical preconditions for the adoption of the particular legal norm and what was social-political goals of the lawmaker. Logic method includes knowledge of legal norm by using formal and dialectic logic rules.  The latter, unlike lexical (grammar) definition, the object of the study is not meaning of the concrete words and determination of their content by grammar sequence of sentences, but logic structure of normative resolutions and content link between them.

I will try to analyze present legislation on Georgian citizenship, namely the Constitution of Georgia and Law on Georgian Citizenship by using the abovementioned methods (however, not with the mentioned sequence).

Legal-Political Nature and Meaning of Citizenship

First of all we should define legal-political nature and meaning of the Citizenship. In accordance to the Law on Georgian Citizenship, “Citizenship is the stable legal relationship of a person with the state which is expressed in the totality of their mutual rights, duties and responsibilities based on the recognition of and respect of the dignity, and the basic rights and freedoms of the individual.” Thus, relationship of the citizen and the state can be defined as union of a state and person based on common political and legal goals. We can estimate the meaning of common political and legal goals according to the general spirit of the Georgian Constitution which is reflected in its preamble:  “The citizens of Georgia, whose firm will is to establish a democratic social order, economic freedom, a rule-of-law based social State, to secure universally recognised human rights and freedoms, to enhance the state independence and peaceful relations with other people, bearing in mind the centuries-old traditions of the Statehood of the Georgian Nation and the basic principles of the Constitution of Georgia of 1921, Proclaim nation-wide the present Constitution.”

Additionally, the most important principle of the so-called “public sovereignty” guaranteed in the Article 5 of the Constitution of Georgia which claims that “people are source of state authority”, so the citizens shall be taken into consideration. Due to mentioned provision of the constitution, the only source of the state authority is people, citizens who execute the authority in accordance to their own sovereign will, through referendum, other forms of democracy and with the support of their representatives, to fulfill the goals mentioned in the preamble of the Constitution. So, we can conclude that citizenship is full possession of tools by the people which ensure their rights to participate in the politically organized management of the society. Due to modern approach to the law, the state does not grant the abovementioned rights to citizens, but it reinforces them in the corresponding law and promotes their realization so that the state has power to become instrument of execution of the law and not vice versa.

Due to abovementioned circumstances, we should not miss the fact that institute of citizenship, first of all, is one of the significant forms of realization of concrete state sovereignty. Despite that, right to citizenship, as a subjective right of a person, is strengthened by many international-legal norms. For example, in accordance to the Universal Declaration of Human Rights, right to citizenship is inviolable right of a person. International-legal basis concerning citizenship issues is quite wide and include many international acts which were adopted in the framework of CoE member states and in larger format too. So, it confirms particular meaning of the institute of citizenship which is not limited by boundaries of concrete states. Its particular significance is proved by particular status of legal norms regulating Georgian citizenship, more precisely, the Constitution and Law of Georgia.

International legal meaning of the citizenship is mainly grounded by two factors. On the one hand, significant rights – like political rights which ensure universal democratic values - guaranteed by international law are directly linked with the citizenship. On the other hand, in the view of globalization, when state boundaries are open and economical or other significant circumstances cause high level of migration, the interest of concrete states increase to maximally protect the rights of its citizens on international level too.

Next important issue is which concrete forms of citizenship are recognized by the Georgian legislation. In accordance to the Article 12 Part II of the Constitution of Georgia “A citizen of Georgia shall not at the same time be a citizen of another state…” Article 1 Part II of the Law of Georgia on Georgian Citizenship makes the same formulation. Due to legislative provision, Georgia does not recognize the so-called “double citizenship,” [it is noteworthy that I use the notion of double citizenship conditionally and it also means simultaneous citizenship of two and more states (so called multiple citizenship)] notion of “bipatrid. Article 32, Part “d” of the Organic Law verifies the abovementioned provision stating “…a person shall lose citizenship of Georgia if he/she d) accepts citizenship of another state.” All abovementioned circumstances shall exclude possibility of recognition of so-called double citizenship by Georgia due to current legislation. However, having read the Article 12 of the Constitution of Georgia and first articles of the Organic Law completely, we wonder what the lawmaker considered in those norms when stating: “A citizen of Georgia shall not at the same time be a citizen of another state, save in cases established by this paragraph. Citizenship of Georgia shall be granted by the President of Georgia to a citizen of foreign country, who has a special merit before Georgia or grant the citizenship of Georgia to him/her is due to State interests.” and still, does Georgian law recognize the institute of the so-called “double citizenship?”

Double and Multiple Citizenship
  
In order to answer the question, I would like to discuss the spread definition of the double citizenship in the legal theory and conditions and forms of the institute established in the practice of various states as well as legal-political purpose of the institute.

In accordance to the scientific definition, double citizenship is a judicial position of a concrete person when she/he holds citizenships of two or more states simultaneously based on corresponding law. Normative definition of multiple citizenships is also defined in the Article 2 “b” of the European Convention on Nationality. More precisely, “multiple nationalities" means the simultaneous possession of two or more nationalities by the same person.”

When defining multiple nationalities, we should take a very important circumstance into account – similar status is granted to a person based on relevant state’s legislation and not as a result of violation of those laws or after the person abuses his rights. This circumstance might originate when relevant states do not recognize or avoid multiple citizenship. However, they do not have direct legal basis to strip off citizenship from a person because of double citizenship because she/he holds double citizenship legally.

Similar cases mostly occur when there are different regulations for granting citizenships in different states (ex. when a child of citizens of a foreign country is born in another state and when the so-called “land principle” is working in this particular country).

Almost equal is the situation when a spouse acquires citizenship of his/her spouse based on their marriage so that she/he does not lose initial citizenship automatically. In this case, we should consider the international acts adopted by the CoE member states which recognize deprivation of old citizenship after person acquires new citizenship as a result of marriage, as discrimination.

Next example of multiple citizenships is reasonable institutionalization of the so-called bipatrid by set of states. These approaches are defined by various economical, social, political, cultural and other motives and mostly are caused by globalization process. We deal with similar cases when a state launches legal institutionalization of a concrete person at the expense of loyalty of one state or encourages him/her in accordance to the relative law. So, on the one hand, a state tries to attract financial, intellectual, cultural, etc capital and create comfortable conditions for him/her through naturalization; on the other hand, state encourages migrated compatriots (particularly when it deals with the drain of cultural, intellectual or financial capital) not to cut links with the state of origin including stipulation by the citizenship. Despite that, double citizenship deals with many legal problems. First of all, it is diplomatic status; as well as imposing tax, military service obligations and issues relating with the person’s working in state agencies. Although numerous mutual and multiple agreements are signed between states, majority of states, due to the problem’s actuality, is eager to avoid or possible reduce cases of double citizenship but not at the expense of losing its citizenship. For example, more or less integrated states based on cultural, economical or political views try to create institutes of citizenships of so-called intergovernmental structures like EU citizenship which originates and develops in parallel to its member states’ citizenships.

Together with the abovementioned example we should consider a factor which generates the double citizenship like migration caused by so-called social problems  in various countries; mostly people migrate to western developed countries (EU and North America). Similar migration is caused by high stability of guaranteed economical and political rights in EU and North America.

In those countries, the most effective source of migrants from Georgia is naturalization to make their status stabile. So, conditionally we can speak about states who “supply” and “accept” migrants; in parallel to it we can also speak about moral responsibilities of supplier states in order not to cut all legal links of the migrants with their originate states particularly when most of them maintain close family or other links. Similar moral responsibilities become particularly urgent when homeland fails to protect the migrant citizen’s right like EU or American state. So, states of origin shall try to keep the citizens of this category due to high emigration level, and to possible guarantee their rights abroad what can be most effectively achieved through maintaining their citizenship. Turkey is a perfect example of similar approach and its approach to its citizens living in EU states.

So, we can define the multiple citizenship (double citizenship) as follows: it is the stable legal relationship of a person with two or more states which is expressed in the totality of their mutual rights, duties and responsibilities based on the recognition of and respect of the dignity, and the basic rights and freedoms of the individual.”

Additionally, I think, double citizenship shall not be considered under regulations of ordinary citizenship as its exception. I think, it would be more reasonable and lawful if we consider it as not only completely different but as completely independent legal institute from ordinary citizenship. Similar approach will enable a state to clearly differentiate these two forms of citizenships and their legal status and on the other hand to more rationally regulate the institute by placing it in different legal regime.

Law of Georgia on Citizenship

And yet, what forms of citizenship are recognized by the corresponding Georgian law? To find qualified answer to the question we should analyze Article 12 of the Constitution of Georgia and relevant provisions of the first articles of the Law on Georgian Citizenship. The Constitution, like the Law on Georgian Citizenship considers the possibility of acquiring Georgian citizenship by a foreign citizen as an exception. So, this procedure is implemented unlike the general rule. We should clarify: 1) which concrete rule is related with the exception; 2) whether the exception means different legislative regulation from ordinary citizenship or general rule.

Article 12 of the Constitution and first articles of the Law on Georgian Citizenship recognize an exception in relation with only one rule (more precisely – “A citizen of Georgia may not simultaneously be a citizen of another state country…”). Thus, it is logical to assume that in case of exception Georgian citizenship can simultaneously hold citizenship of another country. And in this case the exception estimates the rule according to which constitutional and legal provisions might not work for certain category of people which claim that Citizen of Georgia may not simultaneously be foreign citizen. This exception is regulated by the following provision “The President of Georgia may grant citizenship of Georgia to a foreign citizen for having special merits to Georgia or if the granting of Georgian citizenship is in the State interests of Georgia.”

The issue which shall be clarified is the following: after the president of Georgia grants citizenship to a foreign citizen, will Article 12 of the Constitution and Law exclude possibility of acquiring citizenship of the third state by the person. Or do same legislative regulations work for the person with double citizenship which are created for the citizenship acquired through ordinary law and general rule.

Article 1 Part II of the Law on Georgian Citizenship contains a very important provision which states “A citizen of Georgia may not simultaneously be a citizen of another state country except particular cases foreseen by the Constitution of Georgia.” So, this provision does not recognize double citizenship and also indicates that exception is regulated by the Constitution of Georgia and not by the same law. Article 33 of the Organic Law on Georgian Citizenship states the same: “The President of Georgia decides on the following issues:…e) granting the citizenship of Georgia to foreign citizens in the cases foreseen by the Constitution of Georgia” First sentence of the law shall also be considered which states the Georgian citizenship can be regulated “except the circumstances envisaged by the present law.”

Thus, after analyzing the abovementioned, we can conclude that it is not the Georgian Law on Citizenship but the Georgian Constitution which establishes the possibility of granting Georgian citizenship to a foreign citizen by the President of Georgia. This means that one the one hand, there is a rule of receiving the citizenship determined by the Georgian Constitution and Georgian Law on Citizenship and on the other hand, exceptional rule of receiving citizenship established by the Georgian Constitution. If the Georgian Law on Citizenship does not envisage the possibility of granting Georgian citizenship to the citizen of foreign country and refers to Georgian Constitution, we should assume that it will not regulate the legal institution which is not part of the sphere of regulation (even as an exception) and which is envisaged by another and higher legal legislative act either. We should also take into account the article 26th of Georgian law on Citizenship which determines the terms of receiving Georgian citizenship according to this law. The article 27th of the same law determines the authority of Georgian President to accept the concrete individual and not the citizen of foreign state as a Georgian citizen by special rule (and not by exceptional rule), without abiding the conditions of article 26th. (The case concerns accepting individual as a citizen and not the granting of citizenship. Thus, we should not consider the exception envisaged by article 12 of Constitution here.)

According to the analysis of all the above mentioned provisions of Georgian Law on Citizenship we can conclude that none of the provisions of this law, according to their content, can work for the institute of granting Georgian citizenship established by Georgian Constitution. Thus, Georgia recognizes two forms of origination of citizenship, particularly one established by Constitution and established by law and on the other hand the exceptional rule established only by Constitution. It should be noted that in my opinion, it is exactly the factual and formal differences between these two forms of citizenship which condition different legislative regulations.

Answer to Disputed Question

The issue on stake is the following: do Georgian Constitution and Georgian Law on Citizenship exclude the right of the person who received citizenship by exceptional rule to receive citizenship of the third state. First of all, I would like to emphasize that article 12 of the Constitution does not contain any restriction on how many citizenships the person may possess to be considered the foreign citizen. I think such restriction is logical since in this exceptional case, Georgian state deliberately compromises the principle of unconditional loyalty to one country. The grounds for such compromise and diverting from the common rule is exceptional merit before the state of Georgia or other state interests. Thus, in order to grant Georgian citizenship to citizen of foreign state he must have “special merit” before the state of Georgia, or the loyalty or devotion to the state is so strong that it outweighs the interest of inadmissibility of double citizenship. In the second case of granting Georgian citizenship there is a choice to make between two state interests. On the one hand, it is the interest of inadmissibility for a Georgian citizen to be a citizen of another state at the same time and on the other hand, the state interest of granting citizenship to a concrete individual. In this case as well, the state deliberately compromises the principle of loyalty to only one state since another state interest outweighs it. Thus, the state has to make a choice. One the one hand, to strictly pursue inadmissibility of allowing Georgian citizen to hold the citizenship of another state at the same time and on the other hand, in case of certain preconditions, make exception from the common rule notwithstanding how many citizenships concrete individuals holds.

Thus, when granting Georgian citizenship, neither the quantity nor the quality of the foreign state the citizenship of which the concrete person holds has meaning. Thus, the current legislation does not give rational explanation to what significance can this fact have after the granting the Georgian citizenship and whether it can be grounds for ceasing the citizenship.

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