Why the act on citizenship is important and how it is related to minorities
Citizenship has a legal, social and also political dimension. Its legal dimension is related to the rights and duties of citizens. The social and political dimension includes a political community with a specific identity. The concept of citizenship is crucial for democracy, equality and social cohesion. At the same time, citizenship can be used also in a context promoting non-liberal practices, inequities, discrimination and subordination of certain groups of people. In the post-communist countries, the process of developing states and nations went often hand in hand with the process of exclusion of different minorities (see below). Therefore, it is important to examine laws on citizenship in terms of equality and justice, as well as from the minority perspective.
The Ministry of Interior of the Slovak Republic is preparing an amendment of the Citizenship Act and is evaluating comments to the drat amendment from consultation between government departments at the moment. This month, the new legislative draft should be submitted to the government for approval.
In this article, the still effective current act on citizenship that goes against Hungarian minority in Slovakia and its impact in practice is examined. The following analysis of the draft amendment of the citizenship act focuses on important changes the amendment should introduce and their impact on minorities. A brief explanation of the concept of citizenship will be given before the analysis.
Citizenship as democratic, as well as exclusionary concept
The term citizenship originated in the Ancient Athens and the Ancient Rome and has developed since. In the course of history, citizenship has been an exclusionary concept denying status and rights to slaves, immigrants, racial and ethnic minorities, and most significantly to women. At certain points in history, minorities were subject to exclusion in the USA, in Europe and other parts of the world. Many national, ethnic and religious minorities, especially Roma were excluded in Eastern Europe after the fall of communism in 1989. For instance, in former Yugoslavia, marginalized minorities, particularly Roma, were excluded from citizenship in several countries through either direct discrimination or due to registration procedures.1 A lot of Czech Roma were deprived of Czech citizenship in the 1993 law after the Velvet Revolution and the division of Czechoslovakia.2 In countries where citizenship was used as a tool for building an ethnic nation or an ethnic state, some minorities were excluded. In Latvia and Estonia, citizenship was denied to Russian speaking minority.3
At the present time, migrants, refugees and asylum seekers are being labelled the dangerous „others“ and „different“ and are becoming a new subject of exclusionary practises. The issue of migration significantly affects discourse on citizenship and laws on citizenship not only in Europe, but also in other parts of the world.
On the other hand, citizenship is a fundamental concept of democracy built on principles of rights, duties and political participation. Activity, membership and legal status including rights and duties are the three main principles of citizenship.4 The concept of citizenship stems from the egalitarian idea of equality of all citizens before the law and is universal.5 Equality guaranteed by the law and the rule of law is not automatically reflected in „real“ equality for everyone. A real equality of people depends on social structures and the overall political context in the society.
Understanding of the concept of citizenship has been changing over the centuries depending on many different factors. There are different concepts of citizenship with the liberal, libertarian and republican concepts being among most frequently mentioned.6 The different ideas of citizenship are presented in the so-called post-liberal (socialism, feminism, ecology), postmodern and multi-cultural concepts. According to multiculturalists, cultural differences can be accommodated through separate legal or constitutional measures reaching beyond the basic civil rights. In his book Multicultural citizenship, Kymlicka7, for instance, proposes group-specific rights for national and ethnic minorities such as the right for self-governance, polyethnic rights and special rights to representation.
In practice, laws on citizenship define the political community of a given state, rights and duties, relations between the state and its citizens, also relationships among people. It means that citizenship significantly affects the development of a political community and membership in it.
The next part of this analysis examines the current act on citizenship marked by a strong securitisation rhetoric adopted by Robert Fico’s government in 2010.
Act on citizenship – its adoption and its impact
The issue of citizenship has been strongly securitised in Slovakia with regard to Hungarian minority in the past decade. In 2010, the Slovak Parliament adopted the Act on Citizenship that restricted conditions for naturalisation and introduced a new way of losing the citizenship by „acquisition of a foreign state citizenship based on the explicit display of will“.9
The government proposed the Act on Citizenship amendment as a direct response to the planned changes in granting citizenship in Hungary. The then Prime Minister, Robert Fico, justified the new measures by „a security risk“ of potential mass granting of Hungarian citizenship to the citizens of the Slovak Republic.10 According to the government, dual citizenship was undesirable as it created a rule of law relation to two states simultaneously.11 However, international and legal practice is familiar with multiple citizenship and the states can decide who will become their citizen.12 It is not an exclusive power since the legislation regulating citizenship must be in compliance with the applicable conventions, international common law, as well as with the universally recognised legal principles.13
The then Prime Minister, Robert Fico, proposed fast-track procedure for the adoption of the amendment due to „gravity of the issue“ and „security risks“. The proposed law was supported by the coalition parties SMER-Sociálna demokracia (SMER-SD), Slovenská národná strana (SNS), Hnutie za demokratické Slovensko (HZDS) but also by the opposition club of Kresťanskodemokratické hnutie (KDH). In accordance with the Rules of procedure, the Parliament can apply fast-track procedure to adopt a law but only under extraordinary circumstances.14
For Robert Fico’s government, the need to adopt the amendment of the Act on Citizenship was so urgent that the legislative process took one day. The government submitted the draft law to the Parliament to be debated within fast-track procedure on 26th May 2010 at 11:25 a.m. After the debate, the law was adopted by 90 votes of 115 present MPs.
The adoption of amendment establishing loss of Slovak citizenship ex lege, that is automatically by the law due to acquisition of a foreign citizenship based on the display of will, was supported by all parliamentary clubs of coalition parties – SMER-SD, SNS, HZDS but also by members of the opposition KDH club. Members of the Hungarian Coalition Party (SMK-MKP) were not present in the Parliament session on that day.15
On the same day, the Hungarian Parliament adopted changes to their Act on Citizenship introducing preferential naturalization of non-Hungarian citizens, descendants of Hungarian citizens or citizens having origin in Hungary and speaking Hungarian.16
The Constitutional Court also dealt with the amendment of the Act on Citizenship and the issue of loss of citizenship upon acquisition of foreign citizenship based on the explicit display of will. Gábor Gál, an MP, together with thirty other MPs filed a petition with the Constitutional Court to determine whether the amendment of the Act on Citizenship and its adoption via fast-track procedure were in line with the Constitution and other laws of the Slovak Republic, as well as with the international norms. The petition was dismissed by the Constitutional Court for procedural reasons as there were not enough votes in the full court to support the motion of the Judge-Rapporteur or the counterclaim of another judge.17
Three years after the adoption of changes to the Act on Citizenship, the Ministry of Interior signalled in the media it had prepared another amendment in cooperation with the Ministry of Foreign Affairs, as well as with the Council of Europe and the OECD High Commissioner for National Minorities. According to media reports, Slovak citizens who had acquired citizenship of another state where they had permanent residence would not lose their Slovak citizenship.18 However, Fico’s government neither submitted such a draft amendment on citizenship in the Parliament, nor did it present it to the public.
Fico’s amendment, which was designed to deprive members of Hungarian minority of Slovak citizenship upon acquiring Hungarian citizenship, is still effective. Let us now examine what its impact has been in practice. As many as 3,470 people have lost Slovak citizenship by September 2020. Most often, the loss of Slovak citizenship was due to acquisition of Czech citizenship (817) followed by acquisition of German (798), Austrian (529), British (378), American (178) and Hungarian (132) citizenship and acquisition of citizenship of other 25 countries.19
According to the current Act on Citizenship, people have the obligation to notify the District Office in the regional capital on the acquisition of foreign citizenship and they can do so also with a diplomatic or consular office in a foreign country. The District Office keeps records only on notifications from people who have lost Slovak citizenship automatically under the law.
In 2015, the Ministry of Interior led by Robert Kaliňák issued a regulation on granting citizenship for specific reasons to Slovak citizens who had lost Slovak citizenship after 1st January 1993.20 Based on the specific reasons, a total of 1,118 people have applied for Slovak citizenship since then and 1,018 have re-acquired their citizenship. At the moment, further 28 decrees granting citizenship for specific reason are being delivered to the applicants. As for the most common reasons for acquiring Slovak citizenship, the applicants state the fact they still consider themselves Slovak citizens but had to ask for release from the state union due to acquisition of citizenship of another country or because they were granted citizenship of another country or because they lost the citizenship automatically under the law by a voluntary acquisition of a foreign state’s citizenship. Other reasons the applicants had for applying included them having family or owning property in Slovakia or planning to return to live or work in Slovakia.21
The new government led by Igor Matovič of political party Obyčajní ľudia a nezávislé osobnosti (OĽANO) and his coalition partners Sme rodina, Sloboda a solidarita (SaS) and Za ľudí say they want to deal with the problems caused by Fico’s amendment to citizenship of 2010. Let us now take a closer look at the changes the government proposes in the draft amendment.
New government’s draft law on citizenship
The new government led by Igor Matovič wants to give back Slovak citizenship to those who have lost it due to the current legislation and to simplify conditions for acquiring citizenship for Slovak nationals living abroad. In its Policy Statement, the government undertakes to „enable citizens of the Slovak Republic who have lived in the territory of another country for a long time to acquire citizenship of that country without losing Slovak citizenship“.22 The new draft law should enable reacquisition of lost citizenship based on European standards and at the same time, acquisition of citizenship of another state without losing Slovak citizenship if the citizens have lived in the territory of another state for a long time. Apart from that, the proposed amendment should mitigate conditions under which Slovak citizenship can be lost ex lege, under the law, upon acquisition of citizenship of a foreign state.23
The amendment is drafted by the Ministry of Interior and it should be submitted to the government for discussion this October. At the present time, the evaluation of comments from consultation between government departments is under way.
According to the explanatory memorandum, citizens will not lose Slovak citizenship upon acquisition of citizenship of a foreign state if they have had a granted, registered or otherwise recorded residence in the given state for at least three years at the time they acquire foreign citizenship or if they acquire citizenship of another state based on marriage to a foreign national or by birth, adoption or if citizenship has been acquired by a minor.
Extra-parliamentary parties such as MOST-Híd, SMK and Spolupatričnosť, the Plenipotentiary for National Minorities, Lászlo Bukovszky, and Ondrej Dostál (SaS), a coalition MP, have voiced their objections to the proposed new amendment as it does not allow acquisition of foreign citizenship without loss of Slovak citizenship under conditions effective before the 2010 amendment.24
Even Igor Matovič’s government has failed to avoid securitisation approach to the issue of citizenship. It has proposed a new condition for granting citizenship – that the applicant does not „pose a threat to public policy or to security of the Slovak Republic“. How this measure will be implemented in practice is not clear yet. The new amendment also introduces preferential approach to those who have Slovak ancestors. Until now, there have been three ways to acquire Slovak citizenship: by birth, adoption or by granting citizenship. Acquisition of Slovak citizenship by birth means that citizenship is gained based on one’s origin. This means that the jus sanguini principles applies here rather than the unconditional jus soli principle. The condition for reacquisition of Slovak citizenship for those who lost it on their own will in the past should be also enacted.25
Citizenship is a very complex concept that can be democratic but also exclusionary. Citizenship should not be considered only from a normative, abstract perspective. In fact, it has a strongly political significance. It is necessary to observe how laws on citizenship, their perception and practices related to them affect issues of equality and justice in the society and whether they contribute to the development of good or tense relationships between the majority and minorities.
In 2010, Fico enforced an act on citizenship directed against Hungarian minority. He portrayed citizens of Hungarian minority as a security threat and he wanted to deprive them of Slovak citizenship upon acquisition of Hungarian citizenship. Not only did he securitise the issue of citizenship and Hungarian minority, he also approached this minority as second-class citizens who need to be punished for wanting to have dual citizenship. However, reality shows that Slovak citizens were more interested in acquiring Czech, German, Austrian, British and American citizenship rather than Hungarian. Since citizenship serves not only the exclusionary purpose, but also the purpose of integration, which means it creates equal citizens regardless of their ethnicity, the effects of Fico’s amendment have eventually equally affected all citizens in acquiring foreign citizenship upon display of their own will. The new government led by Igor Matovič declares they want to remedy the problems resulting from the still effective controversial Act on Citizenship and that they wish to mitigate conditions under which citizens may lose Slovak citizenship upon acquisition of a foreign one. However, the government does not take into consideration interests of minorities or recommendations of the Plenipotentiary for National Minorities, political parties representing Hungarian minority and its own coalition partners. The proposed amendment does not bring back the status quo from before 2010. Only those who have a strong bond with a foreign state manifested in the form of official residence in it will not lose Slovak citizenship. On the other hand, the amendment introduces the preferential principle for acquisition of Slovak citizenship for those who have Slovak ancestors or are Slovaks living abroad. It is similar to what Hungary has done in its act on citizenship.
- ERRC (2017), Roma Belong: Statelessness, discrimination and marginalisation of Roma in the Western Balkans and Ukraine, Budapest, ERRC, available at: http://www.errc.org/uploads/upload_en/file/roma-belong.pdf
- Kochenov, D. (2007), ´EU Influence on the Citizenship Policies of the Candidate Countries: The Case of the Roma Exclusion in the Czech Republic´, Journal of Contemporary European Research, Vol. 3, No. 2, pp. 124-140, 2007, available at: https://ssrn.com/abstract=1015928
- Di Gregorio, A.(2018), ‘Democratic transition and linguistic minorities in Estonia and Latvia’, Policy department for citizens’ rights and constitutional affairs, Directorate General for Internal Policies of the Union, available at: https://www.europarl.europa.eu/thinktank/en/document.html?reference=IPOL_IDA%282018%29604952
- Honohan, I. (2005), ´Republic requirements for access to citizenship´ in: Calder, G., Cole, Ph., Seglow, J. (eds.), Citizenship acquisition and national belonging. Migration, Membership and the liberal democratic state, New York, Palgrave Macmillan, pp. 91-104.
- Faulks, K. (2003), Citizenship, Second edition, London/New York, Routledge.
- Miller, D. (2005), Citizenship and national identity, Second Edition, Cambridge, Polity press.
- Kymlicka, W. (1996), Multicultural Citizenship, New York, Oxford University Press.
- National Council of the Slovak Republic Act No. 40/1993 Coll. on Citizenship of the Slovak Republic as amended no. 222/1996 Coll. (indirectly), 70/1997 Coll., 515/2003 Coll., 36/2005 Coll., 265/2005 Coll., 344/2007 Coll., 445/2008 Coll., 250/2010 Coll., 131/2015 Coll., 177/2018 Coll., 177/2018 Coll., 221/2019 Coll., 221/2019 Coll.
- National Council of the Slovak Republic Act No. 40/1993 Coll. on Citizenship of the Slovak Republic as amended, Section 9, paragraph 1 (b).
- Government of the Slovak Republic (2010), ‘Request for fast-track procedure regarding the government bill amending the National Council Act no. 40/1993 Coll. on Citizenship of the Slovak republic as amended’, available at: https://www.nrsr.sk/web/Dynamic/DocumentPreview.aspx?DocID=345107
- Government of the Slovak Republic (2010), ‘Explanatory memorandum´, available at: https://www.nrsr.sk/web/Dynamic/DocumentPreview.aspx?DocID=345105
- Surová, S. (2013), ´Act on Citizenship: a standard law causes unusually hot autumn´, Minority Policy in Slovakia, 03/2013.
- Council of Europe, European Convention on Nationality, ETS No. 166, 1997, Article 2, paragraph a).
- „Under extraordinary circumstances, when fundamental human rights and freedoms, or the national security is in jeopardy or when there is a threat that the state could suffer considerable economic damage…“ or when „a resolution of the United Nations Security Council on actions safeguarding the international peace and security adopted under Section 41 of the Charter of the United Nations requires a law to be passed immediately.“ Section 89, paragraph 1 and 2 of Act no. 350/1996 Coll.
- National Council of the Slovak Republic (2010), ‘Government bill amending the National Council Act No. 40/1993 Coll. on Citizenship of the Slovak Republic as amended (print 1545) – third reading. Voting on the draft law as a whole´, available at: https://www.nrsr.sk/web/Default.aspx?sid=schodze/hlasovanie/hlasklub&ID=26893
- Tóth, J. (2010), Changes to the Hungarian citizenship law, San Domenico di Fiesole, European University Institute.
- Constitutional Court of the Slovak Republic (2014), Constitutional Court of the Slovak Republic Ruling, PL. ÚS 11/2012-137′.
- Pravda (2013), ‘Ministry of Interior has amendment of Citizenship Act ready’. Pravda, 16th November 2013, available at: https://spravy.pravda.sk/domace/clanok/299545-vnutro-ma-uz-pripravenu-novelu-zakona-o-obcianstve/
- Information obtained from the Ministry of Interior of the Slovak Republic on 13.10.2020 based on the Freedom of Information Act ‘.
- Ministry of Interior of the Slovak Republic (2015), ‘Decree of the Ministry of Interior of the Slovak Republic on granting of citizenship of the Slovak Republic for specific reasons’, Journal of the Ministry of Interior of the Slovak Republic, unit 1, 2015, available at: https://www.minv.sk/?informacia-o-udeleni-a-strate-statneho-obcianstva-sr&subor=210465.
- Information obtained from the Ministry of Interior of the Slovak Republic on 13.10.2020 based on the Freedom of Information Act ‘
- National Council of the Slovak Republic (2020), Government Policy Statement, p. 29, available at: https://www.nrsr.sk/web/Dynamic/DocumentPreview.aspx?DocID=477513#8_0
- Explanatory memorandum, general part, to LP/2020/304 of Act amending the National Council of the Slovak Republic Act 40/1993 Coll. on Citizenship of the Slovak Republic and amending the National Council of the Slovak Republic Act no. 145/1995 Coll. on Administrative Fees as amended’, available at: https://www.slov-lex.sk/legislativne-procesy/-/SK/dokumenty/LP-2020-304.
- SME (2020), ‘Citizenship Act amendment should be brought forward as early as in October’, SME, 10th October 2020, available at: https://domov.sme.sk/c/22507193/novela-zakona-o-statnom-obcianstve-by-sa-mala-predlozit-uz-v-oktobri.html.
- Ministry of Interior of the Slovak Republic (2020), ‘LP/2020/304 Act amending the National Council of the Slovak Republic Act 40/1993 Coll. on Citizenship of the Slovak Republic and amending the National Council of the Slovak Republic Act no. 145/1995 Coll. on Administrative Fees as amended. Explanatory memorandum’, available at: https://www.slov-lex.sk/legislativne-procesy/-/SK/dokumenty/LP-2020-3042020– (visited on 10th September 2020)