19 May 2015 11:42pm IST
ALEXANDRE MONIZ BARBOSA
Does the registration of one’s birth in Portugal signify the acquisition of Portuguese nationality? This question has been debated for months and is still a topic of discussion; especially after it was pointed out that some Goan lawmakers had registered their births in Portugal. Stating that merely registering one’s birth in Portugal does not amount to acquisition of Portuguese nationality is a rather lame argument, for if that were the case, why are only residents of the erstwhile Portuguese territories of Goa, Daman and Diu being allowed this facility by the Portuguese government? If registration of one’s birth in Portugal does not make one a Portuguese national then perhaps this facility can be given to every Indian citizen and not just to the few residents of Goa, Daman and Diu.
Miguel Reis, a Portuguese lawyer and former journalist who has studied the issue of Portuguese citizenship explains clearly in the book ‘Portuguese Citizenship of Persons Born in the Erstwhile ‘Estado da India’ and of their Descendants’ what Portuguese citizenship signifies, who is eligible and how it can be proved. The word ‘proved’ is Important in the context of this article as Reis’ contention is that those (in this case residents of Goa, Daman and Diu) who prior to December 19, 1961 held Portuguese citizenship continue to do so till today as they never relinquished that citizenship.
Under Portuguese law, the book argues, Goans, and those living in Daman and Diu, during the erstwhile colonial rule were legally Portuguese citizens and by virtue of these Goans never giving up their former nationality they continue to be Portuguese nationals till date. The book further contends that those today making a beeline to the Portuguese consulate in Panjim, with applications and documents seeking Portuguese citizenship, are not acquiring anything new, but reclaiming what is legally theirs.
To put this argument into perspective a little historical note may be required. Goa, Daman and Diu were liberated from Portuguese colonial rule on December 19, 1961 and the territory came under Indian administration from December 20, 1961. On March 27, 1962 the Constitution (Twelfth Amendment) Act 1962 was enacted that brought Goa, Daman and Diu in the list of Union Territories. Indian laws, including the Citizenship Act of 1955, the Foreigners Act 1946 and the Registration of Foreigners Act 1939 were extended to Goa. In addition to this, the Central Government also promulgated the Goa Daman and Diu (Citizenship) Order 1962 that states that every person, or whose parents or grandparents were born before December 20, 1961, in Goa, Daman and Diu, shall be deemed to have become a citizen of India provided that he doesn’t make a written declaration to the administrator of Goa, Daman and Diu stating that he chooses to retain the citizenship or nationality he had immediately before December 20, 1961. Portugal recognized India’s sovereignty over Goa only in 1975 when the two nations established diplomatic relations with each other.
It is this blanket Indian citizenship that was given to Goans without their giving up their former nationality or applying for Indian nationality that leads Ave Cleto Afonso, the translator of the book and who has penned the introduction to it to write, “Goan who were Portuguese nationals by birth (a fact accepted by the Indian law, pre/post Independence and commencement of the Constitution) subsequently became Indian nationals, politically and otherwise (a fact eventually accepted by Portugal under its own changed laws). Patently they were not expressly required to renounce, and did not renounce, nor were they divested of their earlier Portuguese citizenship. Thus they retained that status for themselves and, based on that, the right for their descendants up to the second generation in direct line to be attributed the Portuguese citizenship of origin.”
It is because of this argument that the words ‘proof’ or ‘proved’ gain importance in this article. Reis stresses throughout his book that the proof of Portuguese nationality is the registration of one birth in Portugal.
On page 127 of the book, Reis writes, “…the Portuguese nationality can be proved only through a certificate of the settled record (or assento) of birth obtained from the Portuguese civil registry…” He further argues, in the next few sentences, that while the registration of the birth is proof of Portuguese citizenship, there may be many who are Portuguese citizens regardless of the registration, “but they can prove their nationality only after registering their birth into Portuguese civil registry.”
On page 140 of the book he states, “The proof of the Portuguese nationality of persons born in the Portuguese territory or under the Portuguese administration is made, as mentioned earlier, by means of the settled record of birth (assento), thus being held as offspring of Portuguese citizen the persons whose record of birth does not show foreign nationality of their progenitors.”
On page 169 he says, “As we mentioned earlier, the proof of Portuguese nationality is established through the settled record of birth in the Portuguese civil registration.”
Further he writes, “…the proof of nationality is made by the settled record of birth (assento do nascimento) which thus, has an instrumental function of evidence of nationality.” To this Reis adds in a footnote, ‘see the basis XVII of Law No. 2098, of 29th July 1959, and article 21 of the current Nationality Law’.
The above arguments and assertions do lead to the conclusion that registration of one’s birth in Portugal is not a first step in the process of attaining Portuguese citizenship, but valid proof of such citizenship. It therefore follows that the Bilhete de Identidade (BI) is a document of identification given only to citizens of the Portuguese nation. The confusion over whether it is the Portuguese passport or the BI that determines one’s Portuguese nationality does not come into play, as one’s Portuguese nationality is determined at the moment of transcribing one’s birth records in the Portuguese civil registry. Any concessions being sought to be given to Goans who have acquired Portuguese nationality will have to take into account not holders of Portuguese passports or of the BI, but those who have entered their birth records in the Portuguese civil registry.
(Alexandre Moniz Barbosa is the Executive Editor, Herald)