Foreign allegiance revisited: Legislative Assembly Member keeps her seat

12/12/23

Attorney General for the Falkland Islands v Teslyn Siobhan Barkman

The Supreme Court of the Falkland Islands has delivered judgment dismissing the petition of the Islands’ Attorney General and finding that MLA Teslyn Barkman retains her seat in the Legislative Assembly despite her application to register her New Zealand citizenship by descent and her application for a New Zealand passport.

The Court’s judgment provides clarity on the meaning of section 29(1)(a) of the Falkland Islands Constitution 2008, which provides that no person shall be qualified to be elected as a member of the Legislative Assembly who is “by virtue of his or her own act, under any acknowledgement of allegiance, obedience or adherence to a foreign Power or State.” There are similar provisions in the constitutions of several Commonwealth countries and British Overseas Territories. However, the Falkland Islands Constitution is unusual in that the same form of words both disqualifies from election to the Legislative Assembly and also disqualifies from being on the register of electors. Given the number of dual nationals in the Islands, the issue before the Supreme Court was therefore of wide interest and constitutional importance.

Chief Justice James Lewis KC found that the provision in issue was to be construed narrowly (judgment para. 62), being an exception to an important right (para. 66). Having surveyed the history of the words, he concluded that “an acknowledgement of allegiance, obedience or adherence” in this context requires a positive acceptance of a strong bond between the person and the foreign state whereby the person accepts obligations of service to the foreign state (para. 91). Counterintuitively, but as a result of the legislative history of the provision, he found that Commonwealth countries as at the commencement of the 2008 Constitution were not to be considered “foreign Powers or States” in this context (para. 110). Further, as a matter of New Zealand law, on which the Court heard detailed evidence, the actions taken by the respondent MLA did not require allegiance, obedience or adherence within the meaning of section 29(1)(a); they were more administrative and evidential (para. 122).

Ms Barkman’s application to the New Zealand authorities for recognition of her citizenship by descent and a passport, rights to both of which arose at birth, did not meet the high threshold required by section 29(1)(a) of the 2008 Constitution. By contrast, the taking of an oath of allegiance, serving in the armed forces, and engaging in espionage for a foreign state would all be examples of acts capable of engaging section 29(1)(a) (para. 128).

It follows that Ms Barkman, who has been an MLA since 2017, keeps her seat.

The judgment is here.