The Supreme Court Ruling in the Jalloh Case and “Proposition One” Are Entirely Different

0
958
Edward E. Dillon

By Edward Dillon, Esq

Introduction:

Proposition One and the Jalloh Case:

In September 2019, the Legislature adopted a Joint Resolution (“The Resolution”) proposing a constitutional referendum to amend various articles of the Liberian Constitution. Proposition One of the Resolution (“The Proposition”) seeks to amend article 28 (art. 28) of the Constitution, repeal (by implication) section 22.1 of the Alien and Nationality Law, and grant all Liberians the right to acquire another nationality without losing their Liberian citizenship. This Proposition is significant because many Liberians believe that art. 28 prohibits dual citizenship under all circumstances. However, the Proposition restricts those with dual citizenship from occupying certain positions in the government. It states that those with dual citizenship “shall not qualify for elected national or public service positions…”, unless they renounce the other citizenship. These restricted positions include Chief Justice and Associate Justice of the Supreme Court, ministers and deputy ministers, heads of autonomous commissions, agencies and non-academic research and scientific institutions, ambassadors, chief of staff and deputy chief of staff of the Armed Forces of Liberia.[1]  

Before this proposed Referendum, Teage Jalloh (“Jalloh”), a Liberian citizen who was born in Liberia to both Liberian parents, traveled to the United States and became a U.S. citizen. When he attempted to travel back to Liberia, the Liberian Embassy in Washington D.C. informed him that he needed a visa to re-enter Liberia because he lost his Liberian citizenship when he acquired U.S citizenship. Section 22.1 of the Aliens and Nationality Law provides that “…a person who is a citizen of Liberia whether by birth or otherwise naturalization, shall lose his citizenship by…obtaining naturalization in a foreign state upon his own application…” Ruling in his case in 2019, the Supreme Court held that the government was wrong for depriving Jalloh of his Liberian citizenship without due process of law.[2]

Since the Ruling, some Liberians in the diaspora have asserted that the Proposition is no longer necessary. This is not my understanding of the interpretation of the ruling of the Supreme Court. Although there exist some similarities between the Proposition and the Ruling, the former seeks to achieve an entirely different outcome than the latter.

Similarities

One similarity between the Ruling and Proposition One is the issue of dual citizenship. The Proposition seeks to make dual citizenship a constitutional right. Second, both documents grant rights to Liberians. The Ruling affirms that the government cannot deprive Liberians of their citizenship without due process of law. The Proposition seeks to expand the right of dual citizenship to all Liberians.

Differences

Notwithstanding the similarities, there are some stark differences: First, the Ruling does not confer a right to dual citizenship. It only instructs the government to comply with the principle of due process of law before depriving any Liberian of his/her citizenship. On the other hand, the Proposition seeks to expand the right of dual citizenship to all Liberians. Second, the Ruling rolled back section 22.2 of the ANL that allows for automatic loss of Liberian citizenship without due process of law[3].

Notwithstanding this Ruling, a Liberian citizenship may still be challenged under section 22.1 of the ANL if a person (i) obtains naturalization in a foreign country, (ii) takes an oath or affirmation or formal declaration of allegiance to a foreign country or political subdivision, (iii) serves in the armed forces of  a foreign country without approval from the President of Liberia, or (iv) votes in a political election in a foreign country[4]. So, by amending art. 28, Proposition One will render section 22.1. 

Some Reflections on the Proposition

The importance of the Proposition cannot be overstated. If successful, it will resolve the discrepancies in our citizenship law and expand the right of dual citizenship to all Liberians. It should therefore be embraced by all Liberians.

Like most Liberians, the Proposition proceeds on the assumption that art. 28 prohibits dual citizenship under all circumstances. This is a misconception. The prohibition applies to only one category of Liberians. It states:

“Any person, at least one of whose parents was a citizen of Liberia at the time of the person’s birth, shall be a citizen of Liberia; provided that any such person shall upon reaching maturity renounce any other citizenship acquired by virtue of one parent being a citizen of another country...”[5] (Emphasis mine)

My understanding is that for a Liberian with dual citizenship to be affected by the restriction imposed by art. 28, certain requirements must be met. They are:

  • One of the person’s parent must be a foreign national at the time of birth;
  • The person must acquire the nationality of the non-Liberian parent at the time of birth by virtue of that foreign parent;
  • Both parents cannot be Liberians at the time of a person’s birth; and
  • Both parents must not be foreigners at the time of birth.

Art. 28 seems to be applicable to only to those Liberians with one non-Liberian parent at the time of birth, who acquired the other nationality by virtue of of the non-Liberian parent.  An individual so situated is expected to renounce the nationality of the non-Liberian parent upon reaching maturity in order to retain the Liberian citizenship. If at the time of your birth, both parents are Liberians, art. 28 does not apply.  

Apart from the limited restriction of art. 28, there is no categorical prohibition against dual citizenship in the Constitution. Also, obtaining the nationality of your non-Liberian parent at the time of birth is not the only means of acquiring dual nationality. There are other ways that a Liberian citizen may acquire the citizenship of another country without violating art. 28. Here are a few scenarios:

i.          A child is born outside of Liberia to both Liberian parents. If the country in which the child is born follows the principle of jus soli (where citizenship is determined by the country of birth), the child acquires the citizenship of that country in addition to his Liberian nationality. Here, there is nothing to renounce because both parents are Liberians at the time of birth. (art. 28 does not apply);

ii.         A child is born in country “A” where neither parent is a citizen. At the time of birth, one parent is a Liberian and the other parent is not a citizen of country A, but a citizen of country “B”. If country “A” follows the principle of jus soli, the child acquires the nationality of country A without any reference to either the Liberian or the non-Liberian parent. The child is therefore a citizen of county “A”, a citizen of Liberia by virtue of his Liberian parent, and if possible, acquires the citizenship of country ‘B” by virtue of the non-Liberian parent if the law in country “B” so provides. Here, art. 28 will apply only to the citizenship the child acquired from country “B” by virtue of his non-Liberian parent; it does not apply to the nationality acquire of country “A” because the child did not acquire the citizenship of country “A” by virtue of his non-Liberian parent.

iii.        A child is born in Liberia to non-Liberian parents who are negroes. In this case, the child acquires the Liberian nationality not from his negro parents, but by virtue of the fact that he was born in Liberia and is of the negro race. (art. 28 does not apply because one parent was not Liberian at time of birth. Remember that for art. 28 to apply, one parent must be a Liberian at the time of birth). Under the ANL, any person of negro decent born in Liberia and subject to its jurisdiction is a citizen of Liberia.[6]

iv.        A child who acquires the nationality of another country by virtue of being found in that country and whose parents are not known. The child is later adopted by both Liberian parents and is naturalized as a Liberian citizen (Art. 28 does not apply).

v.         A couple, both of whom are Liberian nationals, adopts a child from another country. The child later becomes a naturalized Liberian citizen. Here, at the time of the child’s birth, neither of his parents were Liberian, therefore Article 28 will not apply. This is especially true when the child does not take steps required under the laws of the country the child came from to renounce or relinquish the foreign citizenship as required under the laws of that foreign state.

There are at least five different ways that a Liberian may acquire dual nationality without violating art. 28. Yet, this limited restriction is being applied to every category of Liberians with dual citizenship. This type of reasoning is analogous to a father who instructs tells his seven-year-old son not to leave the house without adult supervision because of his age, and this rule is taken to apply to all adult children in the household. Justice Scalia, a renowned American jurist, cautioned against such a broad interpretation of constitutional provision when he said “[t]he Constitution…is not an all-purpose tool for judicial construction of a perfect world; and when we ignore its text in order to make it that, we often find ourselves swinging a sledge where a tack hammer is needed.”[7] The history and plain language of art. 28 is restrictive to a situation where one parent is a Liberian at the time of birth. 

Chapter four of the Constitution covers citizenship, and contains only two articles – 27 & 28. Article 27(b) expressly states that only persons of negro decent shall qualify by birth or by naturalization to be citizens of Liberia.[8] Then the first part of art. 28 prohibits only one group of Liberians from acquiring dual nationality. If the Framers of the Constitution really wanted to prohibit dual citizenship under all circumstances, they would have emphatically said so, just as they did in Article 27(b). But the Constitution contains no express or implied prohibition against dual citizenship as some have repeatedly and so forcibly asserted. There is a principle of statutory construction which states that when one or more things of a class are expressly mentioned others of the same class are excluded.

Moreover, the original version of art. 28 reads as follows: “[A]ny person, at least one of whose parents was a citizen of Liberia at the time of the person’s birth, shall be a citizen of Liberia; provided that where such person shall have acquired the citizenship of another country by virtue of having been born in that country or by virtue of one parent being a citizen of another country, that person must, upon reaching maturity renounce any other citizenship acquired by virtue of one parent being a citizen of another country…” (Emphasis mine)

My understanding is that following extensive deliberation, the phrase “where such person shall have acquired the citizenship of another country by virtue of having been born in that country” was deleted from the final version. The point here is that the principle of jus soli was known to the Framers at the time of the drafting of the Constitution. Reading the draft of art. 28 and comparing same with the final version, an inference can be drawn that the Framers did not want those Liberians who obtain another citizenship by jus soli, and not through an affirmative act of naturalization, to relinquish a citizenship acquired by default. Otherwise, that phrase would not have been edited out of the final version.

Others have argued that the prohibition on dual nationality should be applied categorically because the Framers did not intend to “discriminate” against Liberians by granting dual citizenship to some while denying it to others. Assuming this is correct, how do we reconcile such assertion with Article 30 of the same Constitution which prohibits all Liberians under the age of 30 and 25 years from becoming a Senator or representative, respectively[9]; Article 52 which disallows naturalized Liberians and natural born Liberians under the age of 35 years from becoming President and Vice President of the Republic of Liberia[10]; Article 68 which exclude lawyers who are not counselors-at-law and who have not practiced law before the Supreme Court for at least five years from becoming Chief Justice and Associate Justices of the Honorable Supreme Court of Liberia[11]; and Article 77(b) which discriminates against those Liberians under 18 years from exercising the right to vote[12]. There are other restrictions in both the Constitution and the statutory laws, but the point is well punctuated. For whatever reason, the Framers decided to grant the right of dual nationality to specified groups of Liberians. Once granted, the right cannot be taken away except as required by amendment consistent with the requirements of Article 91 of the Constitution.

Restrictions imposed by the Proposition

Another concern expressed by some Liberians regarding the Proposition is the sweeping restrictions imposed on those with dual citizenship as stated herein. If these restrictions are based on national security concerns, and are grounded on empirical research and findings, any further inquiry is foreclosed. If not, then they are counterproductive and are not within the spirit and intent of the general principles of national policy clause of article 5(a), which mandate the government to take positive steps to ensure that Liberians are united and are encouraged to participate in government.[13] By this, I am not suggesting that participation in government is the only means to serve one’s country. A constitutional amendment of this magnitude is so significant that it requires inputs from the entire citizenry, both home and abroad.

Perhaps an alternative could be to limit the restriction to positions involving the national security architecture of the country. Such a confined restriction would insulate the amendment from scrutiny by ensuring that it was narrowly tailored to achieve a compelling government interest, and hence practically enforceable.

There is also a concern that the restrictions do not seem to apply evenly between naturalized Liberians with dual citizenship and natural born Liberians with dual citizenship. Liberians who acquired another citizenship are restricted from holding certain positions, but the Proposition does not state whether a naturalized citizen can be restricted from holding certain position (except the President and Vice President).

The need to redraft the ANL 

At the time the Constitution was adopted, the Framers of the constitution expressed the need for the Legislature to redraft the ANL to ensure that its provisions are consistent with the new constitution (1986). There was a reason for this. Statutes are subordinate to the constitution and therefore the former should yield to the latter. By the time the constitution was adopted, certain provisions of the ANL became inoperative. For example, the constitution provides that either a Liberian father or mother can pass citizenship. The ANL, which predated the constitution, give such right only to the father. Unfortunately, more than thirty years have elapsed and ANL has not been redrafted. If the Proposition is accepted by the people, other provisions of the ANL, including section 22.1 (acts causing loss of citizenship, as mentioned herein), and section 22.4[14] (regarding certificate as to loss of citizenship under section 22.1), will become redundant. Amending the ANL is therefore an imperative. 

Conclusion

The constitution does not prohibit dual citizenship in all instances. Rather, article 28 of the Constitution only imposes a restriction on one category of Liberians from obtaining dual citizenship. The Proposition will resolve this by expanding the right to dual citizenship to all Liberians, and by implication, repeal section 22.1 of ANL, if the referendum is successful. This is very significant for the country and should be embraced by all of us. While expanding the right of dual citizenship, the Proposition imposes an uneven burden on Liberians with dual citizenship by barring them from participating in “…elected national or public service positions…” This categorical restriction runs counter to the right that the Proposition seeks to expand, and also the very constitution that it seeks to amend. Moreover, when a constitutional right is burdened, as we have here, or when a law is discriminatory on its face, the burden or discrimination is counterbalanced by evidence confirming that the burden is narrowly tailored to achieve a compelling government interest. There must also be evidence that the burden is the less restrictive means available to achieve the compelling interest. We do not have any such evidence. For example, what compelling government interest is served by restricting a dually qualified Liberian with dual citizenship from serving as head of the Liberian Water and Sewer Corporation? More importantly, the broad restrictions do not reflect the spirit and intent of the general principle of national policy clause (mentioned herein) as enshrined in chapter 2 of the constitution. Therefore, I think these restrictions are a bridge too far to cross.

The author:

Edward E. Dillon is a recent graduate from Columbia Law School (LL.M). He served as Special Assistant to four (4) successive ministers of Justice (2012-2019). He also served an Associate General Counsel at Firestone Liberia, Inc (2019). before going to Columbia Law School.


Footnotes

[1] Joint Resolution Leg-002/2019 of at least two-thirds of the total membership of the Liberian Senate and the Honorable House of Representatives of the 54th Legislature of the Republic of Liberia on the three Propositions to amend Articles 28, 45, 47, 48, 49, 50 & 83(a) of the 1986 Constitution of the Republic of Liberia: “…A natural born citizen of Liberia may hold another/additional citizenship but shall not qualify for elected national or public service positions and the following appointive positions: Chief Justice and Associate Justices of the Supreme Court of Liberia; Cabinet Ministers and Deputy Ministers; All Heads of Autonomous Commissions, Agencies and Nonacademic/Research/Scientific Institutions; Ambassadors Extraordinary and Plenipotentiaries; and Chief of Staff and Deputy Chief of Staff of the Armed Forces of Liberia.” 

[2] Alven Teage Jalloh v. Ministries of Foreign Affairs, Justice & Liberia’s Ambassador to the U.S.A, October Term of the Supreme Court of Liberia, A.D. 2019, page 4-5. “No person shall be deprived of life, liberty, security of the person, property, privilege or any other right except as the outcome of a hearing judgment consistent with due process of law.”

[3] Aliens and Nationality Law, Liberian Codes Revised, Vol. II: Page 186. “The loss of citizenship under section 22.1 of this title shall result solely from the performance by a citizen of the acts or fulfillment of the conditions specified in such section, and without the institution by the Government of any proceedings to nullify or cancel such citizenship.”

[4] Aliens and Nationality Law, Liberian Codes Revised, Vol. II, Chapter 22, section 22.1, page 185: Acts causing loss of citizenship. “From and after the effective date of this title, a person who is a citizen of Liberia whether by birth or

naturalization, shall lose his citizenship by –(a) Obtaining naturalization in a foreign state upon his own application, upon the application of a duly authorized agent, or through the naturalization of a parent having legal custody of such person; provided that citizenship shall not be lost by any person under this section as the result of the naturalization of a parent or parents while such person under the age of 2l years, unless such person shall fail to enter Liberia to establish a permanent residence prior to his twenty-third birthday; or (b) Taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof; or

(c) Exercising a free choice to enter or serve in the armed forces of a foreign state, unless, prior to such entry or service, such entry or service is specifically authorized by the President; (d) Voting in a political election in a foreign state or voting in an election or plebiscite to determine the sovereignty of a foreign state over foreign territory; or

(e) Making a formal renunciation of Liberian nationality before a diplomatic or consular officer of Liberia in a foreign state in such form may be prescribed by the Secretary of State”

[5] Lib. Const., Chapter 4: Citizenship, Article 28: “Any person, at least one of whose parents was a citizen of Liberia at the time of the person’s birth, shall be a citizen of Liberia; provided that any such person shall upon reaching maturity renounce any other citizenship acquired by virtue of one parent being a citizen of another country. No citizen of the Republic shall be deprived of citizenship or nationality except as provided by law; and no person shall be denied the right to change citizenship or nationality.”

[6] Aliens and Nationality Law, Liberian Codes Revised, Vol. II, Part III, Nationality and Naturalization, Chapter 20, Section 20.1: “The following shall be citizens of Liberia at birth: (a) A person who is a Negro, or of Negro descent, born in Liberia and subject to the jurisdiction thereof…”

[7] Padilla v. Kentucky, 559 U.S. 356 (2010)

[8] Lib. Const., Chapter 4, Citizenship: “In order to preserve, foster and maintain the positive Liberian culture, values

and character, only persons who are Negroes or of Negro descent shall qualify by birth or by naturalization to be citizens of Liberia.”

[9] Lib. Const., Chapter V – The Legislature, Art. 30: “Citizens of Liberia who meet the following qualifications are eligible to become members of the Legislature: a for the Senate, have attained the age of 30 years and for the House of Representatives, have attained the age of 25 years…” 

[10] Lib. Const., Chapter VI, The Executive, Article 52: “No person shall be eligible to hold the office of President or Vice-President, unless that person is: a natural born Liberian citizen of not less than 35 years of age…”

[11] Lib. Const., Chapter VII, The Judiciary, Article 68: “The Chief Justice and Associate Justice of the Supreme Court shall, with the consent of the Senate, be appointed and commissioned by the President; provided that any person so appointed shall be: (a) citizen of Liberia and of good moral character; and (b) a counselor of the Supreme Court Bar who has practiced for at least 5 years.”

[12] Lib. Const., Chapter VIII: Political Parties and Elections, Article 77(b): “(a) Since the essence of democracy is free competition of ideas expressed by political parties and political groups as well as by individuals, parties may freely be established to advocate the political opinions of the people. Laws, regulations, decrees or measures which might have the effect of creating a one-party state shall be declared unconstitutional; (b) All elections shall be by secret ballot as may be determined by the Elections Commission, and every Liberian citizen not less than 18 years of age, shall have the right to be registered as a voter and to vote in public elections and referenda under this Constitution. The Legislature shall enact laws indicating the category of Liberians who shall not form or become members of political parties.”

[13] Lib. Const., Chapter II, General Principles of National Policy, Article 5(a): “The Republic shall aim at strengthening the national integration and unity of the people of Liberia, regardless of ethnic, regional or other differences, into one body politic; and the Legislature shall enact laws promoting national unification and the encouragement of all citizens to participate in government”

[14] Aliens and Nationality Law, Liberian Codes Revised, Vol. II, Chapter 22, section 22.4: Certificate as to loss of Liberian citizenship: “Whenever a diplomatic or consular officer of Liberia has reason to believe that a person while in a foreign state to which such officer is assigned has lost his Liberian nationality under any provision of Section 22.1 of this title, he shall certify the facts upon which such belief is based to the Secretary of State in writing. If

the report of such officer is approved by the Secretary of State, a copy of the certificate shall be forwarded to the Attorney General, for his information, and the diplomatic or consular office in which the report was made shall be directed to forward a copy of the certificate to the person to whom it relates.”

Leave a Reply