Disqualification for Election: Foreign Allegiance
The Supreme Court of the Falkland Islands clarified the circumstances in which the seat of a member of the Legislative Assembly of the Falkland Islands becomes vacant by reason of being under an acknowledgement of allegiance, obedience or adherence to a foreign power or state.
Ms Barkman, a member of the Legislative Assembly, who was a New Zealand citizen by descent, applied to register that citizenship and to obtain a New Zealand Passport. The Attorney General of the Falkland Islands petitioned the Court to determine that her seat had become vacant as her actions placed her under an acknowledgement of allegiance, obedience or adherence to New Zealand., under ss.29(1)(a) and 30(1)(e) of the Schedule to the Falkland Island Constitution Order 2008.
In the absence of a definition of ‘a foreign power or state’ in the Constitution, the Court found that s.29(1)(a), which affected constitutional rights of citizens, should be construed narrowly, and determined that Commonwealth states are not foreign to the Falkland Islands for this purpose.
Further, having heard expert evidence on the implications of New Zealand citizenship, the Court determined that the high threshold required by s.29(1)(a) would be met by clear acts such as swearing an oath of allegiance, serving in the armed forces, or engaging in espionage for a foreign state, but not by applying to register one’s citizenship by descent and to obtain a passport.
A full copy of the judgment can be found here.
Richard Price OBE KC and Iulia Şaran represented the Attorney General of the Falkland Islands.
