Sunday 18 November 2018

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Nationality Woes

 

While we are clamouring for special status within India, the Portuguese granted us such a status, without being asked, and which is the cause of the present controversy.


The question, whether Goans who register their births in Portugal, continue to be Indian Nationals, has now come to the fore, with the challenge to the elections of Caetano Silva and Glenn Ticlo, as legislators. The matter is being animatedly discussed, everywhere. The issue is still obscure and hopefully, will soon be resolved.

While we are clamouring for special status within India, the Portuguese granted us such a status, without being asked, and which is the cause of the present controversy. All former Portuguese colonies are now independent countries, except for Goa, which was annexed to the Indian Union by conquest, and Macau which was returned to China, after expiry of the treaty under which the territory was ceded to Portugal.

Law in Portugal :

Portuguese nationality is determined by Portuguese Nationality Act (Law 37/81 as amended by Organic Law 2/2006 of 17th April).

Goans are eligible to obtain Portuguese Nationality under Article I (1)(a) and (c) of the Portuguese Nationality Act, which read:

Article 1

Nationality by origin

1 – Portuguese by origin are:

a) The children of a Portuguese mother or father born in Portuguese territory;

c) The children of a Portuguese mother or father born abroad if they have their birth registered at the Portuguese civil registry or if they declare that they want to be Portuguese;

Every birth, registered under the said provisions carries an endorsement reading “Portuguese Nationality has been given under the Article I(1)(a) or (c) (as the case may be) of Law 37/81 of 3rd October”. Such an endorsement is clearly reflected in birth certificates issued.

Articles 16, 21(3) and 22(1) further clarify the procedure and proof of Portuguese Nationality. The said Articles read:

Article 16: Central Nationality Registry

The declarations upon which attribution, acquisition or loss of nationality depend must be recorded in the central nationality registry, kept by the Central Registry Office.

Article 21: Proof of nationality by origin

3 – The nationality by origin of persons to whom sub-paragraph c) of paragraph 1 article 1 applies is proved, as the case may be, by the information contained in the birth registration made by inscription in the Portuguese Civil Registry or by the registration of the declaration upon which the attribution depends.

Article 22: Proof of the acquisition and loss of nationality

1 – The acquisition and loss of nationality are proved by the respective registrations or by the annotations added to the birth registration.

A bare reading of the aforesaid three Articles is sufficient, to conclude, that registration of birth in the Central Registry under Article I(1)(a) or (c) is a natural consequence, of being a Portuguese National.

Article 37 provides for registration of births of those born in Portugal, but who are not Portuguese Nationals.

            Article 37: Registration of births of children of non-Portuguese parents

1 – The registration of births that have occurred in Portuguese territory, after the entry into force of the present law, of children only of non-Portuguese parents must mention, as an identification element of the registered person, the foreign nationality of the parents or its unawareness, except if one of the parents has been born in Portuguese territory and resides here.

2 – Whenever possible, the declaring parties must submit documentation attesting to the mention to be made under paragraph 1, in order to prove that none of the parents is of Portuguese nationality.

The law therefore provides separate procedures, for registration of birth of those who are Portuguese nationals and those who are not. It may be noted, that Portugal considered Goa to be part of their country, until signing of the Indo Portuguese Treaty dated 14.3.1975, when Portugal conceded sovereignty over Goa, to India.

There is a misconception, that one must have a Portuguese Passport or a “Billete” (identity card), to be a Portuguese National. The reality, is that the issuance of passport is a consequence of being a national of a country. In other words, you and I are Indians not because we hold Indian Passports, but we hold such Passports because we are Indians. Portugal permits dual nationality, while India does not.

Law in India

Citizenship in India is principally governed, by Article 5 of the Constitution which reads:

Art.5. At the commencement of this Constitution, every person who has his domicile in the territory of India; and –

a)     who was born in the territory of India; or

b)     either of whose parents was born in the territory of India; or

c)     who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement,shall be a citizen of India.

Goans, became Indian citizens by virtue of the Goa, Daman and Diu (Citizenship) Order, 1962 which holds:

            1.This Order may be called the Goa, Daman and Diu (Citizenship) Order, 1962.

           2.Every person who or either of whose parents or any of whose grandparents was born before the twentieth day of December, 1961, in the territories now comprised in the union territory of Goa, Daman and Diu, shall be deemed to have become a citizen of India on that day.

Those Goans who did not desire to be Indian Nationals could opt out of Indian Citizenship by making a declaration within thirty days of the Order, as per first proviso thereto.

Dual nationality is specifically barred, by Article 9 of the Constitution of India, which dictates:

“Art.9. No person shall  be a citizen of India by virtue of article 5, or be deemed to be a citizen of India by virtue of article 6 or article 8, if he has voluntarily acquired the citizenship of any foreign State.”

Now, those Goans who have opted for Portuguese nationality, under the law of that country, as aforesaid are hit by Article 9 and are liable to lose Indian Nationality. The question, whether a person is an Indian Citizen or not is required to be determined, by the Central Government under Sec.9(2) of the Indian Citizenship Act, 1955 which reads:

1.Bottom of Form

If any question arises as to whether, when or how any person has acquired the citizenship of another country, it shall be determined by such authority, in such manner, and having regard to such rules of evidence, as may be prescribed in this behalf.

Special status:

Goa is a unique case, where those born prior to 19.12.1961 and their descendants are eligible, to be Portuguese nationals. In view of the special circumstances, under which Goa became part of India, the Citizenship Order 1962 ought to be amended, to enable Goans to enjoy the benefits available to them, under Article I(1)(a) or (c) of the Portuguese Nationality Law along with the benefits under Article 5 of the Constitution of India. That would be a special status indeed.




Dear Mr. Gracias, I am writing on behalf of a close friend in Mumbai. I have found her mother's birth certificate and grandparents baptism, marriage and death certificates. Unfortunately I want to know the position as to whether Portugues Law recognises parents that are unmarried. In another words: illegitimate children. My friend was born in 1955 and unable to find her parents marriage certificate. She would like to seek Portuguese citizenship directly from her mothers side - the goan connection. I would appreciate a response if this is feasible and under which specific Portuguese part of the Nationality Act. Many thanks and regards. Viona Philips

 
Viona |

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Radharao Gracias

Radharao F.Gracias is a senior Trial Court lawyer and ex President of the South Goa Advocates Association. He is also former independent MLA of Goa. He has been an activist on issues related to Goa for more than three decades.

 

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