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Illegal and Unconstitutional Discrimination in the Citizenship Act [1999] VUOM 8; 1999.08 (19 May 1999)

REPUBLIC OF VANUATU

OFFICE OF THE OMBUDSMAN

PUBLIC REPORT

ON THE

ILLEGAL AND UNCONSTITUTIONAL DISCRIMINATION IN THE CITIZENSHIP ACT

19 May 1999

8809/9/08

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PUBLIC REPORT ON THE ILLEGAL AND UNCONSTITUTIONAL DISCRIMINATION IN THE CITIZENSHIP ACT

PREAMBLE

There is neither Jew nor Greek, there is neither bond nor free, there is neither male nor female for 'ye are all one in Jesus Christ''.

Galatians 3 v 28

SUMMARY

The Ombudsman’s Office reviewed the Citizenship Act [CAP 112] and its impact on male and female applicants for citizenship. The Ombudsman found that, in several respects, women and men are treated differently for the purpose of determining Vanuatu citizenship:

• A man applying for citizenship after 10 years’ residence can include his wife and children in his application. A woman applying for citizenship after 10 years’ residence cannot include her husband and children in her application. (s.12)
  
• A woman is entitled to citizenship if she is married to a ni-Vanuatu man. A man is not entitled to citizenship on the basis of marriage to a ni-Vanuatu woman. (s.10)
  
• In the case of joint adoption of a child, the child is automatically a citizen if his or her father is ni-Vanuatu, but not if his mother alone is ni-Vanuatu. (s.11)
  
• A woman can regain her citizenship if she gave up her ni-Vanuatu citizenship because of marriage to a foreign national and the marriage later broke down; a man cannot. (s.18)

Ni-Vanuatu men can give their spouse and children entitlement to citizenship, but ni-Vanuatu women cannot. Ni-Vanuatu women can regain citizenship after marriage breakdown, but ni-Vanuatu men cannot.

The Ombudsman found that:

The Citizenship Act illegally and unconstitutionally discriminates on the basis of sex by providing unequal entitlements to women and men. This is a violation of the fundamental right to equality in Article 5 of the Constitution. This is also contrary to the Convention on the Elimination of All Forms of Discrimination Against Women (Ratification) Act, which is binding in Vanuatu.

Our Constitution guarantees equal treatment under the law, and the CEDAW Act also requires the Government to amend discriminatory laws. The Ombudsman therefore recommends the amendment of the Citizenship Act [CAP 112] by Parliament this year, to remove the discriminatory and unconstitutional aspects of the Act. This can easily be done without detracting from the current citizenship entitlements. The Ombudsman further recommends that, until the Citizenship Act can be amended, the Citizenship Commission acknowledge the discrimination and advise applicants that it will not oppose any person’s application to the Supreme Court under Article 6 of the Constitution to be given equal rights under the Citizenship Act.

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TABLE OF CONTENTS

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1. JURISDICTION

1.1 The Constitution and the Ombudsman Act allow me to look into the conduct of government, related bodies, and Leaders. I can also look into defects in laws or administrative practices, including the Citizenship Act [CAP 112] and the corresponding administrative practice of granting citizenship.

2. PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED

2.1 The purpose of this report is to present my findings as required by the Constitution and the Ombudsman Act.

2.2 The scope of this investigation is to establish the facts about the Citizenship Act and its impact on male and female applicants for citizenship, and to determine whether this law and practice are defective.

2.3 This Office collects information and documents by informal request, summons, letters, interviews and research.

3. RELEVANT LAWS, REGULATIONS AND RULES

3.1 CITIZENSHIP ACT [CAP 112]

CITIZENSHIP BY ADOPTION AND NATURALIZATION

10. Any woman who after the Day of Independence is married to a citizen shall be entitled on making application in the prescribed manner to be registered as a citizen.
    
11. A child adopted under the provisions of any Act relating to the adoption of children after the commencement of this Act and who is not a citizen on the day of adoption becomes a citizen on that day if the adopter or, in the case of a joint adoption the male adopter, is a citizen on that day.
    

12. (1) A person of full age and capacity may apply in the prescribed manner to the Commission to be naturalized as a citizen.

(2) Where on an application made pursuant to subsection (1) and as a result of such inquiries as the Commission may cause to be made, the Commission is satisfied that the person making the application -

(a) is, on the date of application, and has been during a period of 10 years immediately prior to that date ordinarily resident in Vanuatu;

(b) intends to continue to reside in Vanuatu;

(c) is of good character;

(d) unless prevented by physical or mental disability, is able to speak and understand sufficiently for normal conversational purposes, Bislama, English, French or a vernacular of Vanuatu;

(e) has a respect for the culture and the ways of life of Vanuatu;

(f) is not or is unlikely to become a charge on public funds;

(g) has a reasonable knowledge and understanding of the rights, privileges, responsibilities and duties of citizens;

(h) has renounced or agreed to renounce any citizenship which he may possess; and

(i) has taken and subscribed to an oath of allegiance or made a solemn affirmation in the form set out in Schedule 1;

the Commission may grant the application, but otherwise shall refuse it.

(3) Subject to subsection (4) if a male applicant requests when applying for citizenship that –

(a) his wife; or

(b) any child of his named in the application become a citizen by naturalization;

any such person named in the request shall become a citizen when the applicant becomes a citizen by naturalization.

(4) A wife shall not become a citizen in accordance with subsection (3) unless the application includes a statement by her that she wishes to become a citizen.

....

18. (1) This section applies to a woman -

(a) who is a citizen;

(b) who marries a person who is a national or citizen of another country; and

(c) who becomes on or during the marriage a national or citizen of the country of which her spouse was at the time a national or citizen.

(2) A woman to whom this section applies may make application in the prescribed manner to the Commission to regain her citizenship and the Commission, if satisfied that she is such a woman and that her marriage has broken down, may grant the application.

...

3.2 CONSTITUTION OF THE REPUBLIC OF VANUATU

FUNDAMENTAL RIGHTS AND FREEDOMS OF THE INDIVIDUAL

5. (1) The Republic of Vanuatu recognises, that, subject to any restrictions imposed by law on non-citizens, all persons are entitled to the following fundamental rights and freedoms of the individual without discrimination on the grounds of race, place of origin, religious or traditional beliefs, political opinions, language or sex but subject to respect for the rights and freedoms of others and to the legitimate public interest in defence, safety, public order, welfare and health - ...

(k) equal treatment under the law or administrative action, except that no law shall be inconsistent with this sub-paragraph insofar as it makes provision for the special benefit, welfare, protection or advancement of females, children and young person, members of under-privileged groups or inhabitants of less developed areas.

3.3 CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN (RATIFICATION) ACT NO. 3 OF 1995

1.(1) The Convention on the Elimination of all Forms of Discrimination Against Women adopted by the United Nations General Assembly on 189 December, 1979 which is set out in the Schedule hereto is hereby ratified.

(2) The Convention referred to in subsection (1) shall be binding on the Republic of Vanuatu in accordance with the terms thereof.

CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN

ARTICLE 1

For the purposes of the present Convention, the term 'discrimination against women' shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

ARTICLE 2

States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake: ...

4. To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and other institutions shall act in conformity with this obligation; ...
   
6. To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women.
   

ARTICLE 9

1. States Parties shall grant women equal rights with men to acquire, change or retain their nationality...

2. States Parties shall grant women equal rights with men with respect to the nationality of their children.

(emphasis added)

4. OUTLINE OF FACTS

4.1 Chapter 3 of the Constitution of Vanuatu provides for citizenship of Vanuatu upon Independence, by ancestry, by parentage and by naturalization. 'Naturalization' is the process of admitting a foreigner to the citizenship of a country. The Constitution allows Parliament to set out additional terms for the gaining of Vanuatu citizenship by law. These additional terms are currently set out in the Citizenship Act [CAP 112].

4.2 Under Part III of the Citizenship Act, citizenship can be attained by:

• 10 years’ residence along with other general conditions (see 3.1 above);
  
• marriage;
  
• adoption.
  

4.3 Both women and men are entitled to apply for citizenship after 10 years’ residence. However, in several other respects, women and men are treated differently for the purpose of determining citizenship:

• A man applying for citizenship after 10 years’ residence can include his wife and children in his application. A woman applying for citizenship after 10 years’ residence cannot include her husband and children in her application. (s.12)
  
• A woman is entitled to citizenship if she is married to a ni-Vanuatu man. A man is not entitled to citizenship on the basis of marriage to a ni-Vanuatu woman. (s.10)
  
• In the case of joint adoption of a child, the child is automatically a citizen if his or her father is ni-Vanuatu, but not if his mother alone is ni-Vanuatu. (s.11)
  
• A woman can regain her citizenship if she gave up her ni-Vanuatu citizenship because of marriage to a foreign national and the marriage later broke down; a man cannot. (s.18)

4.4 The applications and entitlements of women and children are attached to their husbands and fathers. Non-citizen women can attain citizenship through their ni-Vanuatu husbands, but ni-Vanuatu women cannot give their husbands and children entitlement to citizenship with them. Men who are citizens or applying to be citizens can give their wives and children entitlement to citizenship, but non-citizen men cannot gain citizenship with their ni-Vanuatu wives.

5. RESPONSES TO THE WORKING PAPER

5.1 Before starting this enquiry, the Ombudsman notified the Citizenship Commission. In April 1999, a working paper was provided prior to this public report to the Prime Minister (who has overall responsibility for the Citizenship Commission) and Mr Noel Rep, current Chairman of the Citizenship Commission.

5.2 A response was received from Prime Minister Donald Kalpokas Masikevanua, who indicated that statelessness of ni-Vanuatu was one of the most important issues underlying the fight for independence. He stated that the Citizenship Act stems from the Constitution, amendment of the Act would require wider consultation for the Act and the Constitution, and correction of discrimination must consider implications for the community at large.

5.3 The Prime Minister’s letter dated 15 April 1999 is typed out in full as follows:

Dear Madame

DISCRIMINATION IN THE CITIZENSHIP ACT

Thank you for your working paper on the above caption.

I would like to draw your attention to the fact that issues that prompted Ni-Vanuatu (New Hebridians) to strife for independence are many, but the two most important issues at that time were: Land Rights and Statelessness of New Hebridians in their own land or country. The root of what is in the citizenship Act stems from what is in the Constitution. Ni-Vanuatu were deprived of their rights as citizens of the New Hebrides so legally they do not own lands which they lived on.

To amend the Citizenship Act following the working paper would mean wider consultation both for the Act and the Constitution. Discriminations or whatever, to be corrected or amended in the law has to take into account a wider implication in the community at large.

I thank you for the opinion expressed.

Yours sincerely

DONALD KALPOKAS MASIKEVANUA

Prime Minister

5.4 While the Ombudsman supports the need for consultation and openness in amending important legislation like the Citizenship Act, it seems that the Prime Minister has not considered that the current Act itself violates our Constitution as well as one of our laws. In these circumstances, the Citizenship Act is ultra vires and must be amended to be lawful. Removing the discriminatory aspects from the law would not take away any rights of ni-Vanuatu, but would add to those rights (ensuring that both male and female ni-Vanuatu, and their spouses and children, have the same entitlements to citizenship). Discrimination in the law, on the basis of sex, must be rectified without delay. Broader changes to citizenship legislation or the Constitution can be made, if warranted, at a later point.

6. FINDINGS

6.1 Finding 1: The Citizenship Act, and the corresponding practices used for granting citizenship, are defective, illegal and unconstitutional: They discriminate on the basis of sex by providing unequal entitlements to women and men. They therefore also violate fundamental rights set out in Article 5 of the Constitution, and in the Convention on the Elimination of All Forms of Discrimination Against Women (Ratification) Act.

6.1.1 The Citizenship Act distinguishes between men and women, by granting different entitlements to each as set out above. Because they have to follow this discriminatory law, the administrative practices of the Citizenship Commission are also discriminatory.

6.1.2 Article 5(1)(k) of the Constitution guarantees equal treatment under the law or administrative action, without discrimination on the basis of sex. There is no 'legitimate public interest in defence, safety, public order, welfare and health' which can excuse the unequal treatment arising from the Citizenship Act. Article 5(1)(k) allows unequal treatment if a law provides for the special benefit, welfare, protection or advancement of females. While the entitlement of women to citizenship on the basis of marriage may be a 'special benefit for females', the fact that women cannot give their non-citizen husbands and children entitlement to citizenship is certainly not such a special benefit. The continued existence of the discriminatory sections of the Citizenship Act is a clear violation of the Constitution.

6.1.3 Furthermore, Vanuatu has ratified the Convention on the Elimination of All Forms of Discrimination Against Women, a Convention of the United Nations. Article 9 of the Convention is breached by the Citizenship Act, in particular because women do not have equal rights with men regarding the nationality of their children: it is only male citizens who can confer automatic citizenship upon their adopted children, and male applicants who can join their children in their applications for naturalization. Article 2 of the Convention, and the Ratification Act passed by Parliament, require the Government to amend laws to eliminate discrimination against women.

7. RECOMMENDATIONS

7.1 RECOMMENDATION 1

It is recommended that the Citizenship Act [CAP 112] be amended by Parliament as a matter of priority to remove the discriminatory and unconstitutional aspects of the Act.

To this end, it is recommended that Prime Minister Donald Kalpokas MasikeVanua consult with the State Law Office with a view to drafting amendments immediately and introducing the amending legislation for passage during 1999.

The amendments can be made without detracting from any current citizenship entitlements, and should ensure that sections 10, 11, 12 and 18 of the Act are changed so that:

• both women and men married to ni-Vanuatu citizens are entitled to citizenship;
  
• an adopted child is entitled to citizenship if either of his or her male or female adoptive parents is a ni-Vanuatu citizen;
  
• in applications for naturalization, both male and female applicants can include a spouse and children in the application (this must be subject to the spouse’s consent);
  
• both women and men can regain ni-Vanuatu citizenship if they lost it during a marriage which later broke down.
  

7.2 RECOMMENDATION 2

It is recommended that, until the Citizenship Act can be amended, the Citizenship Commission acknowledge the discrimination and post a public notice advising applicants that:

• certain entitlements to citizenship are presently different for men and women;
  
• efforts are being made to change this through legislation;
  
• in the meantime, the Commission will not oppose any application to the Supreme Court under Article 6 of the Constitution by anyone adversely affected by the discriminatory provisions, to be given equal rights under the Citizenship Act
  

Dated the 18th day of May 1999

Marie-Noëlle FERRIEUX PATTERSON

OMBUDSMAN OF THE REPUBLIC OF VANUATU