Greens resignations show a need to change dual citizenship requirements

The Greens have lost their two co-deputy leaders, Scott Ludlam and Larissa Waters, in a matter of days.
AAP/Mick Tsikas

Lorraine Finlay, Murdoch University

On Tuesday, the Greens’ Larissa Waters became the second senator in under a week to resign from parliament, after discovering she held dual citizenship and was therefore ineligible to hold her seat. Her Canadian citizenship revelation followed Greens co-deputy leader Scott Ludlam’s resignation, after he was found to hold New Zealand citizenship.

It is expected that the Senate will refer both matters to the High Court, sitting in its capacity as the Court of Disputed Returns. The court will almost certainly find both senators ineligible based on their dual citizenship. It will declare the resulting vacancies should be filled by a recount of the ballot papers from the 2016 federal election.

What does the Constitution say?

Section 44 of the Constitution sets out several disqualifications that result in a person being:

… incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

One of those is Section 44(i). It disqualifies any person who:

… is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power.

Section 44(i) effectively means that dual citizens are not ordinarily eligible to be elected to parliament.

The High Court has previously held that becoming naturalised as an Australian citizen is not enough on its own to escape this disqualification. A person must also take “all reasonable steps” to renounce their foreign citizenship. Exactly what this requires will depend on the circumstances of each particular case and will, in particular, depend on the law of the relevant foreign country.

In the case of both New Zealand and Canada the process is straightforward. Specific government websites provide clear advice on how to apply to renounce your citizenship.

So, by failing to make a request for release from their foreign citizenship, neither Waters nor Ludlam took reasonable steps to satisfy the requirements of Section 44(i).

Not only does Section 44(i) mean the two Greens senators are unable to remain in the parliament, but they were never actually eligible to be elected in the first place.

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Why are dual nationals ineligible?

Section 44(i) was originally designed to ensure MPs had a clear and undivided loyalty to Australia, and would not be subject to any improper influence from foreign governments.

This reflected the position in the UK. Those born outside “the Realm” were disqualified from holding office in the Privy Council or parliament.

The history and context of this section is important. At the time of the first Australian parliament, nearly half of all members had been born overseas – and any person born in Australia was a British subject. The legal concept of Australian citizenship did not exist until 1949.

Before 2002, any Australian citizen who became a citizen of another country automatically lost their Australian citizenship. Much has changed since Section 44(i) was first drafted.

Should Section 44(i) be reformed?

Several expert bodies and parliamentary committees have considered Section 44(i) over the years and recommended reform. The section has been criticised on several grounds, including its archaic language, unclear scope, and the sheer number of Australian citizens who are potentially disqualified under its terms.

Of particular note, given the events of the past week, has been the criticism that many Australian citizens are likely to be unaware that they are actually dual citizens.

This is not simply an academic concern. Several potential MPs have been ruled ineligible in the past on the basis of holding dual citizenship, including the two major party candidates in the 1992 Wills by-election and a One Nation Senator elected for Queensland at the 1998 federal election. And earlier this year the Court of Disputed Returns rejected a challenge to the eligibility of independent senator Lucy Gichuhi that was based around her previous Kenyan citizenship.

Figures from the 2001 Census show approximately 3 million Australian citizens were born overseas. Among the 224 MPs who currently remain in parliament, 23 were born overseas.

While not every Australian who is born overseas remains a dual citizen, these figures do highlight the significant number of people who are potentially impacted by Section 44(i).

But reform can only be achieved through a constitutional referendum, which is itself a challenging exercise.

There are arguments weighing against any change. The principles that underpin Section 44(i) are still of continued importance. There is no doubt that the integrity of parliament and the loyalty of MPs are vitally important. This issue has been highlighted only recently with claims about the influence of foreign donations in Australian politics.

When considering changes to Section 44(i), the key is to strike the right balance between maximising participation by Australian citizens while also safeguarding the national interest. Given the events of the past week, now is an opportune time to engage in that conversation.

Lorraine Finlay, Lecturer in Law, Murdoch University

This article was originally published on The Conversation. Read the original article.

New Threats, Old Enmity Pummel Nepal’s Christians

Armed group that forced over 1,500 government officials to quit now threatens pastors.

KATHMANDU, Nepal, September 16 (CDN) — A year after police busted an underground militant Hindu organization that had bombed a church and two mosques, Nepal’s Christians are facing new threats.

An underground group that speaks with bombs and has coerced hundreds of government officials into quitting their jobs is threatening Christian clergy with violence if they do not give in to extortion demands, Christian leader said.

The Nepal Christian Society (NCS), an umbrella group of denominations, churches and organizations, met in the Kathmandu Valley yesterday (Sept. 15) to discuss dangers amid reports of pastors receiving phone calls and letters from the Unified National Liberation Front (Samyukta Jatiya Mukti Morcha), an armed group demanding money and making threats. The group has threatened Christian leaders in eastern and western Nepal, as well as in the Kathmandu Valley.

“The pastors who received the extortion calls do not want to go public for fear of retaliation,” said Lok Mani Dhakal, general secretary of the NCS. “We decided to wait and watch a little longer before approaching police.”

The Front is among nearly three dozen armed groups that mushroomed after the fall of the military-backed government of the former king of Nepal, Gyanendra Bir Bikram Shah, in 2006. It became a household name in July after 34 senior government officials – designated secretaries of village development committees – resigned en masse, pleading lack of security following threats by the Front.

Ironically, the resignations occurred in Rolpa, a district in western Nepal regarded as the cradle of the communist uprising in 1996 that led to Nepal becoming a secular federal republic after 10 years of civil war.

Nearly 1,500 government officials from 27 districts have resigned after receiving threats from the Front. Despite its apparent clout, it remains a shadowy body with little public knowledge about its leaders and objectives. Though initially active in southern Nepal, the group struck in the capital city of Kathmandu on Saturday (Sept. 11), bombing a carpet factory.

The emergence of the new underground threat comes a year after police arrested Ram Prasad Mainali, whose Nepal Defense Army had planted a bomb in a church in Kathmandu, killing three women during a Roman Catholic mass.

Christians’ relief at Mainali’s arrest was short-lived. Besides facing threats from a new group, the community has endured longstanding animosity from the years when Nepal was a Hindu state; the anti-Christian sentiment refuses to die four years after Parliament declared the nation secular.

When conversions were a punishable offense in Nepal 13 years ago, Ishwor Pudasaini had to leave his home in Giling village, Nuwakot district, because he became a Christian. Pudasaini, now a pastor in a Protestant church, said he still cannot return to his village because of persecution that has increased with time.

“We are mentally tortured,” the 32-year-old pastor told Compass. “My mother is old and refuses to leave the village, so I have to visit her from time to time to see if she is all right. Also, we have some arable land, and during monsoon season it is imperative that I farm it. But I go in dread.”

Pudasaini, who pastors Assembly of God Church, said that when he runs into his neighbors, they revile him and make threatening gestures. His family is not allowed to enter any public place, and he is afraid to spend nights in his old home for fear of being attacked. A new attack occurred in a recent monsoon, when villagers disconnected the family’s water pipes.

“Things reached such a head this time that I was forced to go to the media and make my plight public,” he says.

Pudasaini, his wife Laxmi and their two children have been living in the district headquarters, Bidur town. His brother Ram Prasad, 29, was thrown out of a local village’s reforms committee for becoming a Christian. Another relative in the same village, Bharat Pudasaini, lost his job and was forced to migrate to a different district.

“Bharat Pudasaini was a worker at Mulpani Primary School,” says Pudasaini. “The school sacked him for embracing Christianity, and the villagers forced his family to leave the village. Even four years after Nepal became officially secular, he is not allowed to return to his village and sell his house and land, which he wants to, desperately. He has four children to look after, and the displacement is virtually driving the family to starvation.”

Since Bidur, where the administrative machinery is concentrated, is safe from attacks, Pudasani said it is becoming a center for displaced Christians.

“There are dozens of persecuted Christians seeking shelter here,” he said.

One such displaced person was Kamla Kunwar, a woman in her 30s whose faith prompted her husband to severely beat her and throw her out of their home in Dhading district in central Nepal. She would eventually move in with relatives in Nuwakot.

Pudasaini said he chose not to complain of his mistreatment, either to the district administration or to police, because he does not want to encourage enmity in the village.

“My religion teaches me to turn the other cheek and love my enemies,” he said. “I would like to make the village come to Christ. For that I have to be patient.”

Dozens of villages scattered throughout Nepal remain inimical to Christians. In May, five Christians, including two women, were brutally attacked in Chanauta, a remote village in Kapilavastu district where the majority are ethnic Tharus.

Once an affluent people, the Tharus were displaced by migrating hordes from the hills of Nepal, as well as from India across the border, and forced into slavery. Today, they are considered to be “untouchables” despite an official ban on that customary practice of abuse and discrimination. In the villages, Tharus are not allowed to enter temples or draw water from the sources used by other villagers.

Tharus, like other disadvantaged communities, have been turning to Christianity. Recently five Tharu Christians, including a pastor and two evangelists, were asked to help construct a Hindu temple. Though they did, the five refused to eat the meat of a goat that villagers sacrificed before idols at the new temple.

Because of their refusal, the temple crowd beat them. Two women – Prema Chaudhary, 34, and Mahima Chaudhary, 22 – were as badly thrashed as Pastor Simon Chaudhari, 30, and two evangelists, Samuel Chaudhari, 19, and Prem Chaudhari, 22.

In June, a mob attacked Sher Bahadur Pun, a 68-year-old Nepali who had served with the Indian Army, and his son, Akka Bahadur, at their church service in Myagdi district in western Nepal. Pun suffered two fractured ribs.

The attack occurred after the Hindu-majority village decided to build a temple. All villagers were ordered to donate 7,000 rupees (US$93), a princely sum in Nepal’s villages, and the Christians were not spared. While the Puns paid up, they refused to worship in the temple. Retaliation was swift.

The vulnerability of Christians has escalated following an administrative vacuum that has seen violence and crime soar. Prime Minister Madhav Kumar Nepal, who had been instrumental in the church bombers’ arrest, resigned in June due to pressure by the opposition Maoist party. Since then, though there have been seven rounds of elections in Parliament to choose a new premier, none of the two contenders has been able to win the minimum votes required thanks to bitter infighting between the major parties.

An eighth round of elections is scheduled for Sept. 26, and if that too fails, Nepal will have lost four of the 12 months given to the 601-member Parliament to write a new constitution.

“It is shameful,” said Believers Church Bishop Narayan Sharma. “It shows that Nepal is on the way to becoming a failed state. There is acute pessimism that the warring parties will not be able to draft a new constitution [that would consolidate secularism] by May 2011.”

Sharma said there is also concern about a reshuffle in the largest ruling party, the Nepali Congress (NC), set to elect new officers at its general convention starting Friday (Sept. 17). Some former NC ministers and members of Parliament have been lobbying for the restoration of a Hindu state in Nepal; their election would be a setback for secularism.

“We have been holding prayers for the country,” Sharma said. “It is a grim scene today. There is an economic crisis, and Nepal’s youths are fleeing abroad. Women job-seekers abroad are increasingly being molested and tortured. Even the Maoists, who fought for secularism, are now considering creating a cultural king. We are praying that the political deadlock will be resolved, and that peace and stability return to Nepal.”

Report from Compass Direct News