Šileikis on dual citizenship: the arguments are weighty, but not certain to be of a constitutional calibre

Lithuanian passport
DELFI / Šarūnas Mažeika

At the request of the Seimas, the Constitutional Court has once again returned to the question of dual citizenship. The court has been asked to specify whether the final provisions outlined by it grant the Seimas the opportunity to grant citizens, who left Lithuania after restoring independence, dual citizenship without amending the Constitution.

This was discussed on the Dėmesio Centre (LRT TV) talk show with Seimas Committee of Foreign Affairs member Žygimantas Pavilionis and Vilnius University professor, former Constitutional Court judge Egidijus Šileikis.

Mr. Pavilionis, during a public Constitutional Court session on Tuesday, discussions began regarding a request by members of Seimas regarding dual citizenship for individuals who left Lithuania after the declaration of independence and left to EU and NATO states,. What are your arguments, what change?

Ž. Pavilionis: Most of the discussion at the court was about the transatlantic criterion. I found academic articles by prof. Dainius Žalimas himself where he states that our Constitution is unique specifically due to its geopolitical orientation, starting from 1949 when our freedom fighters clearly stated in declarations that constitutionally they are Western-oriented in terms of their values. Also through our constitutional act on not joining the Soviet sphere we clearly highlighted where we face. There were interesting decisions after the Georgian war and after the occupation of Ukraine. We have clearly stated that integration into the EU and NATO is part of our constitutional values.

You say that specifically that was what changed since the last ruling on dual citizenship, that it was even more clearly stated in the Constitutional Court about direction toward Western civilisation and this would grant an opportunity to be this other case?

Ž. Pavilionis: I was a deputy negotiator myself. I negotiated on 31 chapters in the negotiations, we came to terms everywhere. Even after Vytenis Andriukaitis said that there can be no NATO bases here, the Constitutional Court went ahead and stated that it can be done because it protects our freedom and Constitution. If we came to terms on all these things, then let us come to terms with what politicians identify as most important, let us come to terms regarding people. Let us give people the opportunity to make use of that transatlantic criterion.

– Mr. Šileikis, the authors of the appeal have counted some 25 thousand cases and they are as if pressuring the Constitutional Court, stating that such a large number of independent cases essentially does not oppose the Constitution? If this many do not oppose it, then why would 200 thousand do?

E. Šileikis: Firstly because of procedure. Lithuania has no such separate procedural variant as a court case regarding constitutional rulings. We now need to call on the Constitutional Court to explain its own rulings. I am not fond of the idea to call on, discussion and encouraging it. I see no effort in it to overcome the Constitutional Court ruling. I see an opportunity to discuss, but not in the context of Seimas elections and it is beautiful. The request is ambiguous.

Firstly circumstances are outlined of what happened. Some of my colleagues think that among those circumstances there are no personal circumstances. Nevertheless I have to admit that first of all a great number of Lithuanian citizens have left to live in other countries.

I miss Eurostat data and forecasts. If they are to be believed, then in several decades, Lithuania will only have 2 million permanent residents. Furthermore, marriages have become more frequent where children are born with the right to the citizenship of another state. Brexit which forces many of those living there to seek a UK citizenship. All of these circumstances are important, but whether they are of a constitutional calibre – I’m not sure.

And in your opinion?

E. Šileikis: The problem is that there are so many discussion participants, so many opinions. However one key argument could have been highlighted more. The Constitutional Court has not discussed dual or triple citizenship, that is article 12 of the Constitution through the “Constitutional act on Lithuanian EU membership” prism. What is the issue? What did this act change in the Constitution? Often the Constitution is changed by amending a specific article by rewording it. Here the Constitution was supplemented with a constitutional act.

In my opinion as a legal theoretician, a scientist, even article 12 changed somewhat. I wanted that at some point a group of members of Seimas would ask in corpore whether the Constitutional Court ruling which was formulated strictly in 2006, whether there is a possibility to use the constitutional act to talk about the free movement of individuals in the European Union context. Eurostat data is worth evaluating namely in the context of this act.

Mr. Pavilions, I do not know who helped you prepare your homework, but it was rather well done. It would appear you have found a gap.

Ž. Pavilionis: Truth be told, it was not an appeal, but with my lawyers, who helped me prepare for the case, I specifically accented – not adhering to our commitments. The appeal is a political compromise, I had to gather 114 signatures and from very different Seimas groups, thus it was necessary to pick the wording very carefully.

The topic rose in the discussion how our commitments to the EU and will to integrate, seek education, trade and security is linked with how in principle we are punishing our citizens who do exactly so. I hope that this transatlantic approach or at least the EU factor will be clarified in the Constitutional Court response. Such processes are happening in all countries, for example Latvia did it recently.

Returning to the arguments regarding 25 thousand, is it not too much?

E. Šileikis: I like it, it is logically thought out. The Constitutional Court was perhaps too sociological in its usage of the concept of mass phenomenon in 2006, but here you need legal thinking. The Constitution states that these have to be individual cases, but the court found it enough that they are occasional, particularly rare.

As such the Seimas is trying to catch out the court very beautiful in terms of logics, whether 22 thousand are just a grain of sand or a mass of people. Here the court itself needs to deal with its concepts. I guess that the court will not be caught on this first question. The second question is key – do the previous Constitutional explanations allow the Seimas to make a ruling on dual or triple citizenship in specifically the EU and NATO context without amending the Constitution, just with a simple legislative change. However there is an issue. In 2013 the president called on the Constitutional Court and on March 13, 2013 it answered that it is not possible to establish dual or triple citizenship without changing the Constitution. This constitutional act already existed, but the president did not request to review it. This time the Seimas is clearly pointing to EU and NATO, while the president asked about all other states.

This question is very specific.

E. Šileikis: From a professional perspective I really like this request because it leads to discussion. But this is where some cunning comes in. Firstly the court itself says that there is a need to deal with a mass phenomenon and secondly answer this question. If we open the door to all EU countries, it will still be a mass phenomenon. The Constitutional Court itself now needs to answer what a mass phenomenon is, whether we are talking about Eastern Europe, which is not the EU and NATO or if we are taking the constitutional act as a basis to change this doctrine a little and open the way to the West.

In other words, on one side we have the individual, on the other – the mass. Could we talk of an individual mass case in here?

E. Šileikis: However it is justified by the Constitutional act regarding EU membership.

Ž. Pavilionis: I would have doubts regarding purely just the numbers. 700 thousand individuals identify as having Lithuanian roots in the US and some 300 thousand could have citizenship. Most have the right to citizenship, but these 25 thousand do not reflect the large quantity of people in any way. And I truly doubt whether all of them will want to take our citizenship. Usually this also means taxes, after that a discussion will develop on serving in the military, on all the duties, not just rights. It will not be a mass phenomenon, but we will definitely debate what exactly individual is.

– 25 thousand people do not even comprise 1% of the population of the Republic of Lithuania.

Ž. Pavilionis: It will be possible to adjust regarding other questions afterward with post-legislative acts.

E. Šileikis: I have been monitoring this discussion for all these years and I see that a part of the most honourable politicians do not clearly say what the threats are. In my subjective opinion, there are three threats: the first and second are historical, linked with two ethnic minorities. If we remove the 2006 privilege for individuals of Lithuanian origin, then for all or none. This means that a certain Eastern state will have more opportunities to defend its citizens.

Secondly there is a portion of individuals who would take Polish citizenship as their second. It is a friendly state to us, but it would also defend its citizens more, those who currently only hold the Polish Card. And the main threat is Lithuanian expats who wish for a passport not because of some sort of principles, but because it is an emotional, political and legal connection. And not because there would not be a need to pay for anything. This is a value question, whether I am a citizen and cared for by the state or not.

The situation has fundamentally changed, you have found a gap. But what if not? Only a referendum?

Ž. Pavilionis: I would rather not bet everything on a referendum yet. I believe we will go all the way in Seimas, based on what the Constitutional Court allows us to do. There is rule of law in this country, let us wait. However truly that emotional, value connection is very important. If not for American Lithuanians, if not for that million Lithuanians, would it have been easy for us to protect and fortify our independence.

That human connection is the most important. We are alive because of it. When you look American Lithuanians in the eyes and see the massive funding they contribute, how much they do because they have this emotional connection. Practically no investment has been brought in where a Lithuanian would not have silently helped. So let us not cut the branch we sit on.

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