About the Portuguese Citizenship of the Citizens born in the Former State of India and their Descendants
by
Miguel Reis
SMASHWORDS EDITION
* * * * *
PUBLISHED BY:
Miguel Reis on Smashwords
About the Portuguese Citizenship of the Citizens born in the Former State of India and their Descendants
Translated from
A Questão da Nacionalidade dos Cidadãos Nascidos no Antigo Estado da Índia e dos seus Descendentes
(Short Version)
By
Copyright © 2010 by Miguel Reis
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The territories of the State of India according to the Portuguese Law, Indian Law and International Law
Considered as Portuguese territories by the Constitution of the Portuguese Republic of 1933, the territories of Goa, Daman and Diu, and the enclaves associated to them, were classified as non-independent territories by the Resolution 1542 (XV) of the United Nations General Assembly of 15th December 1960 (1)
The Resolution 1514 (XV), better known as «Declaration on the Granting of Independence to Colonial Countries and Peoples» established that «All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development»
On the other hand, the Resolution 1541 sanctioned the principles that the colonial territories should be submitted to in order to reach their own full government: emergence as a sovereign independent State; free association with an independent State; or integration with an independent State.
Regarding to Goa, Daman, and Diu, as the first two options were not followed, only the third option was left to be adopted – integration with the Indian Union. Now, in respect to the third option, the Resolution 1541 (XV) specifies the circumstances in which this integration may be carried out.
The principle IX of Resolution 1541 (XV) determined the following:
«The integrating territory should have attained an advanced stage of self-government with free political institutions, so that its peoples would have the capacity to make a responsible choice through informed and democratic processes.
The integration should be the result of the freely expressed wishes of the territory’s peoples acting with full knowledge of the change in their status, their wishes having been expressed through informed and democratic processes, impartially conducted and based on universal adult suffrage. The United Nations could, when it deems it necessary, supervise these processes. »
On the opinion of the Portuguese government, these principles could not match with a pure and simple military occupation.
The Indian Union, that had passed an act aiming the integration of the enclaves of Dadra and Nagar Haveli to its territory in August 1961, would take all measures it considered appropriated as means to respect those United Nation Resolutions.
It is important to notice that the Constitution of the Republic of India expressly (2) provided that, since its original version, the Indian Territory would comprise «other territories as may be acquired» (3). Therefore, it could bring to the conclusion that the integration of the territories of the Portuguese colonies in India (4) with the territory of the Union was contained in the constitutional forecast, in the same way that the disposal of territories, by any means, was not anticipated by the Constitution of the Portuguese Republic.
The Constitution (Tenth Amendment) Act, 1961 (5), of 16th August 1961, has integrated the territories of Dadra and Nagar Haveli, and has come into force on 11th August 1961, based on the «acquisition».
The justification for the amendment, whose proposal was signed by Pandit Nehru, was that the peoples of the enclaves were insistently requesting the integration of their territories with the Indian Union.
The Constitution (Twelfth Amendment) Act, 1962 (6), of 27th March 1962, has integrated the territories of Goa, Daman and Diu with the territory of the Union, and it has come into force on 20th December 1961.
The statement of object and reasons of this amendment says «On the acquisition of the territories of Goa, Daman and Diu with effect from the 20th December, 1961, these territories have, by virtue of sub-clause (c) of clause (3) of article 1 of the Constitution, been comprised within the territory of India from that date and they are being administered by the President through and Administrator in accordance with article 239 of the Constitution».
Consonant to the Constitutional Law of India, the territories of Dadra and Nagar Haveli have become part of the Indian Territory since 11th August 1961 and those of Goa, Daman and Diu since 20th December 1961.
Notwithstanding, the position of the United Nations and Portugal was different.
Portugal continued to consider those territories as a Portuguese dominion and the United Nations kept considering them as non-independent territories, under the terms of the reported Resolution 1542 (XV) of the United Nations General Assembly of 15th December 1960.
On 17th February 1962, was published the Act 2112 that enacted «the basis to assure the government of the State of India» whilst the occupation was being carried out.
The Basis I of this act established that «while the territory of the State of India continue to be hindered of the full and effective exercise of the Portuguese sovereignty, the Government of the province, with all its government departments and provincial administration services, shall function in Lisbon», and it might be transferred to another place of the territory by the Overseas Minister, «if the circumstances advises it».
Regarding to the matter of the nationality of the citizens born in the territory, the act contains a special provision (Basis V), in which is expressly affirmed the following:
«The Portuguese legislation upon the nationality continues to be applied concerning to the State of India, considering irrelevant any other legal or of other nature provisions about this subject which have been adopted or come to be adopted whilst the exercise of the Portuguese sovereignty is not re-established».
This act has never been revoked and the rule of the Basis V cannot be considered as derogated, which has confirmed the application of the nationality rules relating to the territories considered as occupied by the Republic of India.
After the democratic revolution of 25th April 1974, the Portuguese authorities opened negotiations with India, in order to sort out the issue of the State of India, which has remained open before the United Nations.
Subsequently to a bilateral meeting in September 1974, in New York, Portugal and India signed, on 31st December 1974, the «Treaty on recognition of India’s sovereignty over Goa, Daman, Diu, Dadra and Nagar Haveli and related matters» (7). (8)
This Treaty, written in a extremely accurate diplomatic language, begins its introduction by referring to the joint statement «signed in New York on 24th September 1974, during the 29th Session of the United Nations General Assembly, in which both parties expressed the intention to restore diplomatic and consular relations between both countries and agreed upon cooperating between themselves in order to promote the Portuguese language and culture and the preservation of historical and religious monuments in Goa, Daman, Diu, Dadra e Nagar Haveli».
The next paragraph of the introduction mentions the «Constitutional Law nº 9/74 of 15th October 1974 published in the State Gazette of Portugal (that) authorises the President of the republic of Portugal to conclude an agreement between Portugal and India by which Portugal recognises the full sovereignty of India over the territories of Goa, Daman, Diu, Dadra and Nagar Haveli and that this recognition would imply the abrogation of the corresponding part of Article 1 of the Portuguese Constitution of 1933.»
In the Article 1, which we quote, «Portugal acknowledges that the territories of Goa, Daman, Diu, Dadra and Nagar Haveli have already become part of India and hereby recognises the full sovereignty of India over these territories with affect from the dates when they became parts of India under the Constitution of India.»
Portugal has not transferred those territories to the Republic of India, which were considered as possessions of Portugal under the terms of the Constitution of 1933. Portugal has only restricted itself, by the way in compliance with the expressed will of India, to recognise that such territories «have become part of India » and to recognise the full sovereignty of India over the same territories, from the dates that they have become part of India according to the respective constitution, which are the 10th and 12th amendments, before mentioned.
As it was seen before, the Act 2112, of 17th February 1962 had already recognised, implicitly, the sovereignty of the Republic of India over those territories, which had been deducted from the Portuguese sovereignty. Through this Act, even though Portugal has not recognised a de jure sovereignty of the Indian Union, it affirmed and recognises, with no doubt, a de facto sovereignty generated by manu militari.
What the Treaty of 31st December has come to say may be summed up into two essential points:
Portugal recognises the fact that the territories of the State of India have become part of the Republic of India;
Portugal recognises the full sovereignty of India over such territories, from the date they were integrated with the Indian Territory, under the terms of the Constitutional Indian provisions.
The essential novelty lies down on the acknowledgement that the territories of the State of India have become part of the Republic of India, a reality that the former Portuguese regime had never accepted or recognised before. The acknowledgement of the full sovereignty of India over those territories is a consequence of the acknowledgement of the integration and a sequence of the modification of the de facto sovereignty into a de jure sovereignty, only possible in a scenario of resignation of sovereignty, established at the Portuguese Constitution of 1933.
For this reason, the Treaty was legalised under the protection of an authorisation granted to the President of the Republic by the Constitutional Law 9/74 of 15th of October, whose single article establishes the following:
«Single Article. It is authorised to the President of the Republic, heard the National Salvation Board, the State Council and the Provisory Government, to come to an agreement between Portugal and the Indian Union, by which Portugal acknowledges the full sovereignty of the Indian Union over the territories of Goa, Daman, Diu, Dadra, and Nagar Haveli, implying this acknowledgement in the abrogation of the correspondent part of the article 1 of the Political Constitution of 1933. »
This Treaty has allowed solving up a matter of international litigation between Portugal and the Republic of India, which was being dragged with no solution at the International Court of Justice in The Hague, since 1961.
The most relevant matter here is to establish when the Treaty has come into force.
In compliance with the Decree 267/75 of 17th April 1975, the Treaty signed between Portugal and India was approved for ratification on 5th April 1975.
Under the terms of the article 7 of the treaty, it would only come into force after the exchange of the instruments of ratification, which according to what was agreed upon, should be made in Lisbon.
The Notice of 18th June 1977 came to announce that «on 3rd June 1973, the instruments of ratification of the Treaty between India and Portugal on Recognition of India’s Sovereignty over Goa, Daman, Diu, Dadra and Nagar Haveli and Related Matters were exchanged, under the terms of its article 7, by which has come into force on that date».
This is, obviously, a mistake. Instead of 3rd June 1973, it should be read 3rd June 1975, the real date of the exchange of the instruments of ratification.
Being right that the Treaty itself established the date of its effectiveness as the same of the exchange of letters, which has taken place on 3rd June 1975; it seems to us that the mistake of the notice is irrelevant, being equally irrelevant, before such agreement, the date of the notice published in India.
In compliance with this understanding, the territories that used to make part of the State of India ceased to be Portuguese territories, according to the Portuguese law, on 3rd June 1975, on account of the provisions of the Constitutional law 3/74, of 14th May, Constitutional Law 9/74 of 14th October and of the Decree 206/75 of 17th April, to which the Treaty was attached in order to be published. (9).
There was not an express revocation of the Act 2112 of 17th February 1962, however, reaching the conclusion that this Act was derogated by the Decree 206/75, with legal consequences only from the effectiveness of the Treaty on. Definitely, only with the effectiveness of the Treaty, agreed upon the terms of its article 7, is that, by one hand, the referred territories have legally ceased to be Portuguese territories and the Indian sovereignty over these territories has become lawfully recognised by Portugal, with all consequences from there arisen.
The Portuguese Estado Novo (10)– a dictatorship started in 1928 and consolidated in 1933 – succumbed to a military coup on 25th April 1974, which has created conditions to the democratisation of the country.
At the announcement made by the National Salvation Board, through the voice of the general António de Spínola, continued to affirm the intention to «grant the survival of the Nation as a Sovereign Country on its full pluricontinental».
Nonetheless, the development of the political procedure would have to put de decolonisation as one the main goals of the 2nd Republic.
At the speech during the inauguration of the governors of Angola and Mozambique, on 11th June 1974, the President of the Republic at that time, António de Spínola, considered the self-determination principle as an essential vector of the decolonisation process. Nevertheless, the processes have been rushed and Spínola fell after the movement of 28th September and the government released the colonies to the freedom movements that were fighting for their independence, through bilateral agreements with them.
The procedure of the acknowledgment of the sovereignty of the Republic of India over the territories that used to form the State of India was an autonomous and unusual procedure, yet inserted in the global process of decolonisation.
One of the issues that a decolonisation procedure necessarily raises is the matter of the nationality of the citizens that were born in the colony and then have become the new people of the new State, resulting from the decolonisation.
This matter was solved up by Portugal through the Decree-Law 308-A/1975, of the 24th June.(12) As it is informed at its introduction, it intends to except the general nationality rule contained in the Act 2098/1959, of 29th July.
The act justifies itself with «the access to the independence of the overseas territories under the Portuguese administration, resulting from the decolonisation process in operation » and «the acquisition of the new nationality by individuals that (...) had the Portuguese nationality and, on the other hand with the convenience to concede or make possible the maintenance of the Portuguese nationality in the cases where there is a special connexion with Portugal or unequivocal expression of the will in this meaning to justify it».
In very general terms (13), in a first group of those who maintained the Portuguese nationality, there are those who were born in the new countries, from a father or mother who was born in Portugal and the archipelagos of Madeira and Azores, those who were born in the State of India, as long as they state they want to be Portuguese citizens and the wives of both cases.
In a second group are included those who maintained the Portuguese nationality because they are descendents until the 3rd generation of:
those born in continental Portugal and adjacent islands;
the nationalised (14);
those who were born abroad from a father or mother born in continental Portugal or adjacent islands, or naturalised as Portuguese citizens;
Those born in the former State of India, unless they have declared, within the deadline of two years, that they no longer wish to be Portuguese.
Under the terms of the article 4 of this act, «the individuals born or resident in overseas territories made independent which are not embraced by the previous provisions » (15) shall lose the Portuguese nationality.
Relatively to the citizens born in the former Portuguese State of India, who were not residing in the territories that have become independent, the Decree-Law 308-A/1975 of 24th June has no further relevance.
The act is applied to the Portuguese citizens «resident in overseas territories made independent» (16), not having, therefore, any applicability towards the territories of the former State of India, which were not made independent, but were integrated with the Indian Union.
It should be noticed that on the date in which this act was published, the treaty between Portugal and India, for the regulation of the issue of these territories, had already been signed and ratified. (17).
The most interesting is the distinct treatment given by this decree-law to the citizens born in «the former State of India» and to its descendents until the 3rd generation, resident in the new independent countries, which are put in the same level of the Portuguese citizens born in Portugal and adjacent, since they state they wish to maintain the Portuguese nationality.
The Portuguese State wanted to provide, to the citizens born in the former State of India, a status completely different from the one of the peoples of the other colonies. For this reason, this law not only has not provided for the loss of the nationality, on account of the nationality of the State they have integrated, but also guaranteed the maintenance of the Portuguese nationality by those who were living in the other colonies that have become independent, as long as they state their wish to continue to be Portuguese. This is something that it has not done, for instance, regarding to the Angolans that were living in Mozambique or to the Mozambicans that were living in Angola (18).
Summing up, relating to those born in the former State of India living in the ex-colonies, under the terms of the article 1 of the Decree-Law 308-A/75 of 24th June, there are the following scenarios:
1. Shall maintain the nationality the following Portuguese, resident in the overseas territory that has become independent:
(…)
e) Those born in the former State of India who state the wish to maintain the Portuguese nationality;
f) The woman married with, widowed or divorced from one of the Portuguese citizens referred to at the previous sections and the underage children of these previously mentioned Portuguese citizens.
2. The remainder descendents until the third generation of the Portuguese citizens referred to at subsection (…) e) of previous section also maintain the Portuguese nationality, except if, within the deadline of two years, counting from the date of the independence, state by themselves, being of full age or emancipated, or through their legal representatives, if legally unfit, that they do not wish to be Portuguese.
Since when Jean Bodin (1529-1596) created a structured concept of sovereignty (19), a lot of water has passed under the bridge. The idea of an absolute and perpetual power, only limited by the law of God and by the law of nature, has evolved in a special way after the French Revolution, which has returned the sovereignty to the citizens and has made of them the essential element of the states. To Bodin, the sovereign power was gift from Heaven, which justified the obedience of the vassals. Jean-Jacques Rousseau transferred the concept of sovereignty from the person of the ruler to the whole people and lifted up the general will on its source.
The concept of sovereignty that has been established from the 19th century on has come to point out that it does not belong to any particular authority, but to the State while legal person. At present, the citizenship or nationality are not, in a certain way, more than the relation between the citizens and the states, being up to each one of the states, exercising their sovereign power, establish the rules to admit the citizens as their nationals.
It is not possible, due to this reason, for a state to remove, from a specific citizen, his quality of being a national of another country, even if this citizen lives in its territory
This reflection is especially important when it comes to the Portuguese nationality of the citizens born in the former State of India.
Even if, at the situation previously cited, the Republic of India intended to annul, through the territorial integration, the nationality of the Portuguese residing in those territories, it could not do it without the intervention of Portugal and, much less, against the will of Portugal.
What it could do – and effectively has done – due to the sovereignty that it has taken over the territories (and here it is not being discussed whether such assumption was lawful or unlawful in accordance with the International Law) was to impose to them another nationality: the Indian.
When the Indian Union occupied the former State of India, Portugal expressly recognised that «the territory of the State of India was deducted from the full and effective exercise of the Portuguese sovereignty »(20) however, has not abdicated its sovereignty over those territories, especially regarding to its relation to the Portuguese nationals of the territory, whose occupation continued to be considered as unlawful by Portugal until the treaty signed in 1974.
Portugal has kept considering those territories as Portuguese and the people born in the territory of the former State of India as ope legis Portuguese, in spite of having its sovereignty over those territories deducted.
As we have explained previously, the territories of the former State of India were integrated with the Republic of India, due to constitutional amendments to the Indian Constitution, made in 1961 and 1962. Notwithstanding, the Portuguese Republic just recognised this integration in 1974 and with effects from the exchange of ratification letters of the treaty between the countries.
The qualification of the territory as a Portuguese territory is a juridical qualification. And it is under this perspective that this element shall be appreciated as an essential reference element to the acknowledgement of the Portuguese nationality, according to the rules in force in the Portuguese Law during the period between the date of the «acquisition» of the territories by the Republic of India, by virtue of the mentioned constitutional amendments and the abdication of the sovereignty by Portugal.
And it is not even possible to argument that an opposite theory is supported by the article 1 of the Treaty, which establishes:
«Portugal acknowledges that the territories of Goa, Daman, Diu, Dadra and Nagar Haveli have already become parts of India and hereby recognises the full sovereignty of India over these territories with effect from the dates when they became parts of India under the Constitution of India. »
What this provision brings is the recognition of sovereignty of fact, and not of law, since the integration of the territories with India and not a renunciation, with retroactive legal effects over the formal sovereignty that Portugal continued to claim and to exercise until the date the treaty has come into force.
And it could not be made any other way, under the Portuguese constitutional provisions and the legislative authorisation brought by the Constitutional Law 9/74, which has consented the President of the Portuguese Republic « to conclude an agreement between Portugal and India by which Portugal recognises the full sovereignty of India over the territories of Goa, Daman, Diu, Dadra and Nagar Haveli and that this recognition would imply the abrogation of the corresponding part of Article 1 of the Portuguese Constitution of 1933.»
It is clear that neither the legislative authorisation permitted the retroactive abrogation of the Constitution nor the text of the Treaty allowed concluding that there was a retroactive derogation.
Thus, it must be considered that the territories of Goa, Daman, Diu and their enclaves were, lawfully, Portuguese territories (for the effects of the Constitution of 1933, of the Act 2098 and Act 2112) until 3rd June 1975, date when the Treaty signed between Portugal and the Republic of India came into force.
Naturally, the perspective of the Republic of India is different from the Portuguese one.
The acknowledgement of the Indian nationality following «the acquisition» of the territories if the former State of India by the Indian Union
As it has already been said, India established that, in compliance with its constitutional law, has acquired the territories of Dadra and Nagar Haveli on 11th August 1961 and Goa, Daman and Diu on 20th December 1961.
Only later is that Indian recognised the Indian nationality of the Portuguese citizens of from those territories.
The Indian citizenship is determined by the articles 5 to 11 of the Indian Constitution, which states: (21)
«5 – At the commencement of this Constitution, every person who has his domicile in the territory of India and –
who was born in the territory of India; or
either of whose parents was born in the territory of India: or
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
6. Notwithstanding anything in article 5, a person who has migrated to the territory of India from the territory now included in Pakistan shall be deemed to be a citizen of India at the commencement of this Constitution if—
(a) he or either of his parents or any of his grandparents was born in India as defined in the Government of India Act, 1935 (as originally enacted); and
(b) (i) in the case where such person has so migrated before the nineteenth day of July, 1948, he has been ordinarily resident in the territory of India since the date of his migration, or
(ii) in the case where such person has so migrated on or after the nineteenth day of July, 1948, he has been registered as a citizen of India by an officer appointed in that behalf by the Government of the Dominion of India on an application made by him therefore to such officer before the commencement of this Constitution in the form and manner prescribed by that Government.
Provided that no person shall be so registered unless he has been resident in the territory of India for at least six months immediately preceding the date of his application.
7. Notwithstanding anything in articles 5 and 6, a person who has after the first day of March, 1947, migrated from the territory of India to the territory now included in Pakistan shall not be deemed to be a citizen of India.
Provided that nothing in this article shall apply to a person who, after having so migrated to the territory now included in Pakistan, has returned to the territory of India under a permit for resettlement or permanent return issued by or under the authority of any law and every such person shall for the purposes of clause (b) of article 6 be deemed to have migrated to the territory of India after the nineteenth day of July, 1948.
8 Notwithstanding anything in article 5, any person who or either of whose parents or any of whose grandparents was born in India as defined in the Government of India Act, 1935 (as originally enacted), and who is ordinarily residing in any country outside India as so defined shall be deemed to be a citizen of India if he has been registered as a citizen of India by the diplomatic or consular representative of India in the country where he is for the time being residing on an application made by him therefore to such diplomatic or consular representative, whether before or after the commencement of this Constitution, in the form and manner prescribed by the Government of the Dominion of India or the Government of India.
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.
10. Every person who is or is deemed to be a citizen of India under any of the foregoing provisions of this Part shall, subject to the provisions of any law that may be made by Parliament, continue to be such citizen.
11. Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship.
The meaning of the constitutional text is obvious, and there is no need to put much effort on the reading to realise that, even before «the acquisition» of the territories by India, some of the residents in the former State of India could, simultaneously, hold the Portuguese and Indian nationalities, being relevant to highlight two situations:
The one of the children of Indian citizens born in the Portuguese territory;
The one of the children of Portuguese citizens born in India, who later has settled in the State of India.
Regarding to the Portuguese citizens (defined as such by the Portuguese laws) born in those territories, they have turned themselves into Indian citizens following «the acquisition» of the referred territories, under the Constitution of India and the citizenship orders, which are going to be further mentioned. Until this moment, for the Indian law, they were just Portuguese citizens.
The Republic of India has published express laws concerning to the nationality of those residing in Goa, Daman and Diu and in the enclaves of Dadra, Nagar Haveli and Tiracol.
This citizenship order established that:
« 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.
Provided that any such person shall not be deemed to have become a citizen of India as aforesaid if within one month from the date of publication of this Order in the Official Gazette that person makes a declaration in writing to the Administrator of Goa, Daman and Diu or any other authority specified by him in this behalf that he chooses to retain the citizenship or nationality which he had immediately before the twentieth day of December, 1961.
Provided further that in the case of a child, the declaration under the preceding proviso of the father, or if he is dead of the mother, or if both parents are dead, of the legal guardian, shall determine the citizenship or nationality of such child if on the date of such declaration he is below eighteen years of age, but such child may, within six months after attaining the age of eighteen years, make a declaration in writing to the Administrator of Goa, Daman and Diu or any other authority specified by him in this behalf that he wishes to acquire Indian citizenship and shall there upon become a citizen of India.»(22)
The special laws with the purpose to rule the acknowledgment of the Indian citizenship of those who were born in the attached territories, according to the constitutional amendments of the Republic of India, which regularised the acquisition of the former Portuguese colonial territories, produced an ex lege acknowledgement of the Indian citizenship of the citizen born in those territories.
This is not about an attribution or acquisition of the nationality, in similar meaning to the Portuguese rules, but an acknowledgement of the national condition of the Indians, in connection with the territorial integration. The law states that those born in such territories «shall be deemed to have become a citizen of India»; due to the fact they belong to those territories. However, it goes further, taking into account that Indian are not only those who were born in the mentioned territories, but also their children and grandchildren.
The Indian laws are absolutely neglectful with regard to the loss of the Portuguese nationality, yet, allowing that those citizens who choose to maintain the nationality they had before by declaring, within a month, their intention to decide for the Portuguese nationality, to implicitly waive the Indian nationality.
In despite of the text of the laws to affirm the acknowledgement of the Indian nationality, notwithstanding, without fixing the loss of the Portuguese nationality, there are several Indian authors supporting that, under the Indian laws, the citizens who were deemed to have become Indian, by the cited rules, have lost the Portuguese nationality.
It is not clear that the legislator intended to push the loss of the Portuguese nationality by the citizens who were, due to the law, considered as Indian citizens, even though it is unequivocal that the persons who categorically chose to maintain the Portuguese nationality, which used to be their nationality before the acquisition of the concerned territories by the Republic of India, were not recognised as Indian citizens.
The citizenship is also, in a sense, an indication that a person belongs to a certain state. What is determined by the «citizen’s orders» is that those citizens were deemed to have become Indian citizens, which is something that India could, naturally, declare within its sovereignty. On the contrary, India could not rule, as it has not done, the loss of the Portuguese nationality, which is an issue of the Portuguese sovereignty.
The Republic of India could have caused the loss of the Portuguese nationality of the citizens born in those colonies through coercion, once the Portuguese Nationality Act, that was in force during that period, provided for the loss of the Portuguese nationality by those who, voluntarily, obtain another nationality (23), and for this purpose, all that India had to do was to oblige these people to declare their will to be Indian in order to grant the Indian citizenship.
As there is not any provision, in Indian Law, that imposes, the obligation to choose the Indian nationality to the cited citizens, it seems clear and unequivocal that the acquisition of the Indian nationality has not implied, under the legal terms, loss of the Portuguese nationality.(24)
The Indian Nationality Law has suffered successive alterations, reinforcing a jus sanguinis logic. Any person born in the territory of India after 26th January 1950, but before 1st July 1987, was considered an Indian citizen by birth.
The persons born in the Indian Territory after 1st July 1987 only are Indians if at least one of the parents is an Indian citizen on the date of the birth.
The persons born in the Indian Territory after 3rd December 2004 are deemed as citizens of India if both parents are Indian citizens or if one of them is an Indian citizen and the other is not an illegal immigrant, on the date of the birth.
Under the terms of the article 9 of the Indian Citizenship Act (25), the citizens that, through naturalisation, registration or any other form of acquisition of nationality, obtain a foreign nationality, shall lose the Indian citizenship.
During several years, the Indian authorities considered the fact of an Indian citizen holding a passport of another country as enough evidence to prove the acquisition of another nationality, which implied the ceasing of the Indian nationality.
On 22nd December 2003, the Indian parliament passed the Citizenship (amendment) Bill, 2003, which has made possible the dual citizenship to the so called PIO (person of Indian origin), which breached the dual citizenship prohibition.
Essentially, aiming to maintain the Indian nationality of millions of Indians spread all over the world, this act has made things easier to those who once were citizens of the former Portuguese colonies and their descendents.
The main goal of this work is to make a reflection about the Portuguese nationality of the citizens of the former Portuguese State of India and not about the acquisition of the Portuguese nationality by their descendents or other persons linked to them, that may be entitled to the Portuguese nationality due to the Nationality Act that is currently in force.
It is especially relevant to this analysis to observe the Portuguese Constitution of 1933, the Portuguese Civil Code of 1867, the Act 2098 of 29th July 1959 and the Act 2112 of 14th February 1962.
The Decree-Law 308-A/75 of 24th June and the Decree 267/75 of 17th April (this last one has approved the ratification of the Treaty on recognition of India’s sovereignty over Goa, Daman, Diu, Dadra and Nagar Haveli and related matters) are also very important to this study.
In order to set a strict parameter to this matter, it is vital to recall the conclusions drawn from the past items:
The territories that used to make part of the former State of India were military occupied by the Army of the Indian Union and, legally acquired, through two amendments to the Constitution of India, on 11th August 1961 (Dadra and Nagar Haveli), and on 20th December 1961 (Goa, Daman and Diu).
These territories, in despite of the effective integration with the Republic of India, continued to be considered as Portuguese territories by the Portuguese laws.
These territories were considered, by the United Nations, as non-independent territories until the recognition of its integration with the territory of India via a treaty signed between Portugal and the Republic of India.
The mentioned treaty, approved for ratification by the Decree 206/75 of 17th April, established in Article 7 that the treaty was going to be come in force on the date of the exchange of the ratification letters.
The exchange of ratification letters was made in Lisbon, on 3rd June 1961 (26).
The citizens born in the former State of India, as much as it is identified by the Portuguese rules, are Portuguese citizens, as long as they were born until 3rd June 1975 (27).
In practical terms, it is important to qualify the following groups, under the Act 2098 of 29th July 1959, which are entitled to the Portuguese nationality due to having been born in those territories:
Pursuant to the terms of Basis 1 of this act, are Portuguese, as long as born in the Portuguese territory, the following:
Children of Portuguese father;
Children of Portuguese mother, whose father is stateless, Portuguese citizen or incognito;
Children of stateless, of unknown nationality or incognito parents;
Children of foreign father, except if the father is in the Portuguese territory as means to serve the State he belongs to;
Children of foreign mother, if the father is stateless, of unknown nationality or incognito, except if the mother is in the Portuguese territory as means to serve the State she belongs to.
All those exposed in the Portuguese territory are presumed to be born there. Consequently, according to this presumption, the citizens born and exposed in the territories of the former State of India until 3rd June 1975 are Portuguese.
Among those born in the territory, were only excluded the children of foreign father who was serving his country abroad and the illegitimate children of Portuguese mother.
The classification of the illegitimate children and the access to the nationality by the illegitimate children of Portuguese mother, currently, shall be disregarded, taking into account that the provision of the act 2098, which makes such classification, is unconstitutional.
It is understood that, as per Act 2098, the children of foreign citizen, born in the former State of India, since their parent is not there to serve a foreign state, are Portuguese.
According to the Basis 10 of the Act 2098, the foreign women married to Portuguese citizens are also Portuguese. Nonetheless, the Portuguese women who got married to foreign citizens without the express waiver to the foreign nationality of the husband, during the effectiveness of this law (28) have lost the Portuguese nationality. However, they may recover it under the terms of article 31 of Act 37/81 of 3rd October and of article 65 of the Nationality Regulations, approved by Decree-Law 237-A/2006 of 14th December.
Maintenance of the Portuguese nationality by the Portuguese from the former State of India
The Act 2098 of 29th July 1959 punished the voluntary acquisition of foreign nationality by Portuguese citizens with the loss of the Portuguese nationality (Basis 18, a). The same punishment was established (Basis 18, b) to those citizens who «without the permission of the Government, accept a public job or serve the Army of a foreign State, if they do not quit the job or leave the army within the deadline fixed by the government, except in case they are also citizens of the foreign country.
Besides these two situations, it is relevant the loss of the Portuguese nationality by the Portuguese women who got married to foreign citizens, during the effectiveness of Act 2098 of 29th July 1958
Regarding to the Portuguese of the former State of India, referred to in the first two situations, they have not lost the nationality because they have not acquired the Indian nationality as consequence of their will, being the acknowledgement of their Indian nationality derived from the Indian law itself.
The women who got married to foreign citizens before the current Nationality Act come into force may have lost the nationality, yet, still being able to recover it.
Nevertheless, even if, theoretically speaking, the citizens referred to in the first two situations had lost the Portuguese nationality; this loss would be ineffective, since it has not been registered at the Portuguese Civil Register Office.
On 15th January 2004, the Organic Law 1/2004, which has altered articles 30 and 31 of Nationality Act, was published and it has established new rules for the reacquisition of the Portuguese nationality by citizens who have lost it due to having acquired a foreign nationality as result of their will.
Under the terms of Article 2 of Act 74/1998 of 11th November, this rule has come into force in the continent on 20th January, in the archipelagos of Madeira and Azores on 30th January and in Macau and other countries on 14th February. Most of people are completely unaware of this important Act.
In the former Nationality Act situation (Act 2098 of 29th July 1959) the women who get married to foreign citizens or to a Portuguese citizen who acquire a foreign nationality would lose their Portuguese nationality.
The Act 37/81 of 03rd October came to change this rule, allowing that Portuguese could acquire the nationality of another State without losing the Portuguese nationality, yet, with any harm to the effects of Act 2098.
To those who had lost the Portuguese nationality with the previous rule, the Act 37/81 came to permit the acquisition of the nationality, however, they should submit themselves to a very difficult and complex process that, most of times, makes the application impracticable.
At any of these situations, the citizen was fully equalised to a foreigner candidate to the acquisition of the Portuguese nationality as result of will, above all concerning to indispensability of the evidence of effective link with the Portuguese community and the possibility of the Public Prosecutor Office to oppose to the application if the applicant had been sentenced of an offense whose punishment is over three years imprisonment, according to the Portuguese criminal laws, or had worked as a civil servant to a foreign State or had served the Army of another country.
The Art 31, now modified, used to say the following:
"Those who, under the terms of Act 2098 of 29th July 1959 and previous legislation, have lost the Portuguese nationality due to acquisition of foreign nationality may acquire it through a declaration, if of full age ".
At first sight, everything would be very simple: just a declaration of his will would be enough for the citizen who has acquired a foreign nationality and (most of times without knowing it) has lost the Portuguese nationality to obtain the status of a Portuguese citizen.
Nevertheless, the reality was not like that, because the joint interpretation of the Act and the Regulations resulted, during several years, in the conclusion that those cases should be dealt with following the same terms with which the applications for the acquisition of nationality by foreign citizens were being dealt with.
For over twenty years, the Portuguese authorities have been living with a very uncomfortable situation. They have given medals and decorations for several relevant characters of the Portuguese communities abroad, that in the end of the day were not Portuguese, because they have naturalised themselves.
Some of those citizens just realised how big was this disloyalty when their children submitted their applications for the attribution of the Portuguese nationality and the Conservatória dos Registos Centrais refused the application based on the grounds that the applicant was not a child of a Portuguese citizen.
This Act has come, in some sort of a confused manner, to avoid this problem.
Essentially,
there are three new situations:
I. Referring to the women who have lost the Portuguese nationality due to having got married to a foreign citizen, the Organic Law 1/2004 speaks of reacquisition of the nationality, what can only be interpreted as reinstatement of the Portuguese citizens status lost with the marriage. Section 1 of Article 30 of Nationality Act says that «the woman who (...) had lost the nationality as result of marriage, may reacquire it through a declaration, not being, in this case, applied what is established by Articles 9 and 10» that is, the Public Prosecution Office may not object to such application.
Therefore, the conclusion is that the reacquisition of the nationality depends on a declaration of the woman who has lost it and, on the other hand, that the Civil Register Office might and shall continue to register the loss of the nationality of the Portuguese women who got married to foreign citizens during the effectiveness of Act 2098, once they do not make such declaration.
II. The second situation is concerned to the citizens who have lost the Portuguese nationality due to the fact they have acquired another nationality, yet, without the processing of its registration.
What the legislator means is that, in cases where a conclusive registration of the loss of the nationality has not been processed yet, based on this, the citizen acquires the Portuguese nationality, unless he expressly states that does not wish to acquire it.
This a methodology of difficult comprehension used to overcome the so called «commendation crisis », in which people would discover, even though they have always been treated as Portuguese, that they were not Portuguese citizens.
The legislator could have resorted to the expiration, declaring as expired the right to proceed to the registration of the loss of the nationality and reinstating the rights of the citizen, with reference to the date of the triggering event of the loss.
Instead, he has decreed a «forced voluntary acquisition » of the Portuguese nationality, in the cases where the definitive registration of the loss of the nationality has not been processed.
The
text of Article 31, 1, says:
«Those who, under the terms of Act 2098 of 29th July 1959 and previous legislation, has lost the Portuguese nationality as result of the voluntary acquisition of another foreign nationality, shall acquire it:
a) Since the conclusive registration of the loss of the Portuguese nationality has not been drafted, except he declares he does not wish to acquire the Portuguese nationality;
b) Against declaration, when the conclusive registration of the loss of the nationality has been already drafted. »
And item 2 says:
«In the cases mentioned at previous item, the articles 9 and 10 are not applied ».
It is originated from the words of the law that, in the situations of loss of the nationality where its conclusive registration has not been done yet, there will be, with no harm of such loss and indispensability of its registration, an automatic acquisition of the nationality, with no need of intervention from the interested person.
This is a scenario of acquisition of the Portuguese nationality by foreign citizens as result of his will but also due to the law; only being the individual will relevant if it is contradictory.
It seems to derive from the rule, the need to register the loss of the nationality in the cases where their requirements are detected, but also and simultaneously, the mentioned «forced acquisition » of the nationality, with no need of the intervention of the interested person, except if he wishes to oppose himself.
III. The third scenario is the one of the citizens whose loss of nationality has been conclusively registered. If they wish to acquire the nationality – and not reacquire because the law does not permits so – they shall declare it. The only difference that the new rule has from the past one is that the Public Prosecution Office cannot oppose to the application.
Respecting to everything else, all difficulties existed before the effectiveness of Organic Law 1/2004 were kept.
The legislator could have opted to treat these citizens as native Portuguese, reinstating their by origin Portuguese nationality, even return to them the equality of conditions in relation to those who acquired the Portuguese nationality as result of their will following the effectiveness of Act 37/81 (Nationality Act).
What he has, deliberately, done was to treat them as foreign citizens to whom is given the opportunity to acquire (ex nunc, even though with retroactive effect) the Portuguese nationality with all issues that it implies, especially, in the political rights aspect. For instance, a binational citizen, originally a Portuguese who has naturalised in 1985, or child of a Portuguese citizen who was born abroad, who applied for the attribution of nationality, may run for the Presidency of the Republic, because they are native Portuguese. The citizens who have lost the nationality during the effectiveness of Act 2098, and now come to acquire it, are not allowed to run for the Presidency of the Republic because they are not native Portuguese, previously being foreigners who acquired the Portuguese nationality as result of their will.
It is important to emphasize that the citizens that have been forced to get naturalised by the governments of the countries which have given them shelter are excluded from this rule. The forced naturalisation has happened, in several periods, namely in Congo, Brazil, Venezuela and Argentina, where was legally impossible to develop a business if the person did not acquire the national status of those countries.
With subtle differences from country to country, the Portuguese citizens were placed in a situation of having to choose between the naturalisation, as the only way to engage their businesses, or the loss of their assets and expulsion of the countries, where the respective resident permit were based on such businesses.
These situations are the ones which demand more attention, once that in these cases there was not the exercise of the free will of the Portuguese citizens.
The special situation of the citizens born in the former State of India who were residing in the former colonies on the date of independence
Decree-Law 308-A/75 of 24th June, established special rules for the citizens living in overseas territories who were made independent (30).
This Act contains very important specific provisions relating to the citizens born in the former State of India.
Article 1, 1, (e) expressly enacts that those who were born in the former State of India, resident in the overseas territories deemed as independent, who declare their wish to keep the Portuguese nationality, shall maintain the Portuguese nationality.
Subsection (f) extend this right to the woman married with citizen born in the former State of India, widowed or divorced, and to their underage children.
Section 2 establishes that the descendents, until the third generation (grandchild), of those citizens shall maintain the nationality, as long as they do not declare that, within two years following the independence, they do not wish to be Portuguese.
Proof of the Portuguese nationality of the citizens born in the former State of India and the compulsory registrations.
The proof of the Portuguese nationality of the persons born in the Portuguese territory or under the Portuguese administration is made by the Birth Certificate, being considered as children of Portuguese citizens all those whose Birth Certificate does not state the foreign nationality of their parents.(31)
Towards the public documents kept in the records of the former State of India, the Article 5 of the Treaty on recognition of India’s sovereignty over Goa, Daman, Diu, Dadra and Nagar Haveli and related matters establishes that:
ARTICLE V
Portugal agrees in principle to return to India all archives, records, papers, documents and other materials relating mainly to the territories mentioned in Article I including those which may have been transferred to any place outside these territories. Similarly, India agrees in principle to transfer to Portugal all archives, records, papers, documents and other materials which may be maintained within the territories mentioned in Article I and which do not relate mainly to these territories.
The modalities of their return, mutual access, supply of copies and consultation will be settled through diplomatic channels.
If there is the birth registration in the civil records of the former State of India, the appropriated means to guarantee the right to the Portuguese nationality is the integration of such registration with the Portuguese Civil Register Office.
The Republic of India maintained the operation of this registration system for some time following the acquisition of the territories (32). However, after this initial period and coherently to the amendment of the Citizenship Act, the Indian civil registration system was adopted.
That is: there are citizens that, being Indian under the terms of the Indian laws, are also Portuguese according to the Portuguese laws, yet, having their births only registered at the Indian Civil Register Office.
As much in regard to some as to others, the evidence of the birth in the territory of the former State of India, as means to integrate it with the Portuguese Civil Register Office, shall be given through a Certificate issued by Republic of India.
The regularisation of the registering situation of the citizens born in the former State of India may be done through the entry of the Indian record (including the records processed by the Portuguese administration and returned to India due to the treaty) in the Portuguese Civil Register Office or via inscription of the birth at the Portuguese Civil Register Office.
The process of integration of the birth records occurred in the former State of India is of the scope of the Conservatória dos Registos Centrais (33), under the terms of Decree-Law 249/77 of 14th June.
The applications may be submitted at the Consulates or any Portuguese Civil Register Office, by force of Article 13 of the Civil Register Code (34).
The application may be submitted by anyone who has a legitimate interest on the fact, either by himself or by an attorney, being relevant to highlight that the professional representation must only be made by a lawyer or a solicitor.(35)
The registration of the birth may be requested, for instance, by the descendents and spouses, because they are entitled to the rights that will arise from the registration.
Article 39 of the Civil Registration Code fixes as parties, in relation to which registration, the person who declares and those persons who will be directly affected by the fact or whose consent will depend its full effectiveness.
Article 1 of the Civil Registration Code in effectiveness (36), under the title «Object and compulsory registration» establishes the following:
1 – The civil registration is compulsory and has as object the following facts:
a) The birth;
b) The affiliation;
c) The adoption;
d) The marriage;
e) The prenuptial conventions or alterations of the agreed marital regime or lawfully fixed;
f) The regulation of the exercise of the paternal responsibility, its alteration and ceasing;
g) The inhibition or suspension of the exercise of the paternal responsibility and the guardianship limitative arrangements of this responsibility;
h) The interdiction and definitive disability, the guardianship of underage or interdicted, the administration of the assets of underage and the guardianship of disabled;
i) The provisory or definitive guardianship of absents and presumed death;
j) The declaration of insolvency, denial of the respective application in cases of previous designation of provisory judicial administrator and conclusion of insolvency lawsuit;
l) The appointment and ceasing of functions of the judicial administrator and of the provisory judicial administrator, the attribution of the administration of the insolvent estate to the debtor, as much as the prohibition of the practice of certain acts without the consent of the insolvency administrator and the ceasing of this administration;
m) The disqualification and inhibition of the insolvent to the exercise of commerce and other job positions;
n) The exoneration of the remaining liabilities, as much as beginning and anticipated ceasing of the respective procedure and revocation of the exoneration;
p) Those acts that determine the modification or extinction of any of the indicated facts and those which derived from legal imposition.
2 – The facts respecting to foreigners only are subject to compulsory registration when they occur in the Portuguese territory.
The civil registration follows the life of the citizens from their birth until their deaths, annotating and filing the main facts of the life course.
All those facts, as it was previously referred to, only can be proved through certificated extracted from the register records (37) and are only valid within the Portuguese juridical order if they, referring to Portuguese citizens, appear in the Portuguese Civil Registration Office.
By virtue of the section 2 of Article 1, the facts related to foreigners just are subject to registration if they occur in the Portuguese territory.
This does not prevent – actually imposes, through the combination of this provision with Article 21 of Nationality Act, the foreigners, that simultaneously have the foreign and the Portuguese nationality, due to the law, are not obliged to register such facts, the only proof of their Portuguese citizen status and of the relevant facts of their family relations.
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