Dviguba pilietybė: pasiūlymo papildyti Konstitucijos 32 straipsnį analizė

Abstract

The article reveals the constitutional concept of the provision “With the exception of individual cases provided for by law, no one may be a citizen of both the Republic of Lithuania and another state at the same time“ of Article 12 of the Constitution. The said constitutional provision means that the cases provided for by the law when a citizen of the Republic of Lithuania can also be a citizen of another state at the same time may be very rare (individual), that cases of double citizenship can be very rare (exceptional), that under the Constitution it is impermissible to establish any such legal regulation whereby cases of double citizenship are a widespread phenomenon, but not very rare exceptions. The development of legislative regulation of citizenship demonstrates that after the adoption of the Constitution the legislator gradually expanded the circle of persons, who could be citizens of the Republic of Lithuania and of another state at the same time. In 2006, when there was a dispute regarding the compliance of some provisions of the Law on Citizenship with the Constitution, the said law used to establish the legal regulation whereby the absolute majority of citizens of the Republic of Lithuania, regardless of where they resided – in Lithuania or in another state – were allowed to be citizens of the other state as well. The Law on Citizenship used to contain also the provision whereby the right of persons of Lithuanian descent to double citizenship was not limited at all, meanwhile the law grouped the citizens of the Republic of Lithuania of other nationalities into two groups: those citizens of the Republic of Lithuania of non- Lithuanian descent who had repatriated (i.e. left to live to their ethnical homeland or settled in their ethnical homeland) were not allowed to be citizens of the Republic of Lithuania and of another state at the same time, while those citizens of the Republic of Lithuania of non-Lithuanian descent who had left to live not to their ethnical homeland or settled in not their ethnical homeland, but in some other foreign state, were allowed to be citizens of the Republic of Lithuania and of another state at the same time. Thus, the Law on Citizenship established the legal regulation whereby, on the one hand, one totally disregarded the constitutional provision that double citizenship is permissible only in individual cases and that double citizenship could not be a widespread phenomenon. On the other hand, the Law on Citizenship established the legal regulation whereby the retention of the right to citizenship of the Republic of Lithuania depended on the ethnical origin of the person and on the country (ethnical homeland or another country) to which the person moved from Lithuania. Thus, part of citizens of the Republic of Lithuania were discriminated on the basis of nationality. It was precisely because of this that the Constitutional Court ruling of 13 November 2006 recognised corresponding provisions of the Law on Citizenship to be in conflict with the Constitution.
While looking for ways of how to correct the Constitution without calling a referendum on amending Article 12 of the Constitution so that cases of double citizenship would not be very rare ones, a proposal was submitted to supplement Article 32 of the Constitution with the provision “A person who acquired the citizenship of Lithuania by birth shall not lose it against his will”. Paragraph 2 of Article 148 of the Constitution provides that the provisions of Article 12 of the Constitution may be altered only by referendum. It means that the Seimas, while enjoying the powers to amend other provisions of the Constitution, cannot amend those other provisions of the Constitution in a way so that the legal regulation competing with the legal regulation established in Article 12 of the Constitution would be established therein. Should the Seimas adopt such amendments to the Constitution and establish the legal regulation which would compete with the legal regulation established in the provisions of Article 12 of the Constitution, there might appear a legal situation where, even though the provisions of Article 12 of the Constitution (the provisions which can be altered only by referendum) are not formally amended, the same provisions would be “neutralised” by the law on amending the Constitution. Thus, the legal regulation entrenched in the provisions of Article 12 of the Constitution would be distorted and denied. The Constitution prohibits that the Seimas adopt such amendments to the Constitution.
Under Article 12 of the Constitution, double citizenship would be allowed only as a rare exception. The provision “A person who acquired the citizenship of Lithuania by birth shall not lose it against his will”, which is proposed to be entered into Article 32 of the Constitution, means that cases of double citizenship would be a widespread phenomenon. Thus, the proposed provision consolidates a different rule from that established in Article 12 of the Constitution. The Seimas cannot supplement Article 32 of the Constitution as it is proposed, i.e. it may not consolidate the provision “A person who acquired the citizenship of Lithuania by birth shall not lose it against his will”, since thus the legal regulation established in Article 12 of the Constitution would be denied, while the said legal regulation may be altered only by referendum.