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Did the FSM Congress amend the citizenship section of the Constitution without referendum?



By Marstella E. Jack

{Editor's Note: One of the eight proposed changes to the FSM Constitution adopted last year by the 4th FSM Constitutional Convention is the amendment of Article III to allow an FSM citizen who satisfies Section 2 to hold dual citizenship. }


Kolonia, Pohnpei - The Federated States of Micronesia Constitution forbids dual citizenship.


Article III, Section 3 of the FSM Constitution provides that: "A citizen of the Federated States of Micronesia who is recognized as a citizen of another nation shall, within 3 years of his 18th birthday,or within three years of the effective date of this Constitution, whichever is later, register his intent to remain a citizen of the Federated States and renounce his citizenship of another nation. If he fails to comply with this Section, he becomes a national of the Federated States of Micronesia. The recent appellate decision affirming that citizenship “renunciation” does not require a certificate of renunciation from the foreign country essentially means that dual citizenship can still be maintained by those Micronesians born as dual citizens, without a constitutional amendment. However, one must still register his or her “intent” to remain an FSM citizen, otherwise, the person becomes an FSM national. In 1995, Esmond Moses appeared before the then Attorney General Camillo Noket and orally declared his intent to remain an FSM citizen.


In Appeal Case P8-2022, the appellate court upheld that the trial court’s finding that the oral declaration by Sen. Moses was sufficient for the purpose of “renunciation” of his U.S. citizenship, and that act in itself was in fact an affirmative step that Moses took to retain his FSM citizenship.


The effect of this ruling essentially means that there is no need to produce a certificate of renunciation of the foreign country’s citizenship. The challenge with this lawsuit was the meaning of the phrase “renounce” as I see it. The court held that any dispute over the definition of “renounce” seems immaterial because what is important is the necessary or affirmative steps one needs to take to “retain” FSM citizenship.

Does this mean that a dual citizen need not produce a certificate of renunciation of the foreign country’s citizenship?


According to the recent appellate court holding, there is no need for that. All one needs to do is register his or her intent to remain an FSM citizen.


What is the process for that? In 1995, apparently there had been no established procedure for that, except that Public Law No, 1-75 designated the Attorney General to take declarations of intent and renunciation of foreign citizenship. In 2016, Congress enacted Public Law No. 19-91 which provides that if an FSM citizen with dual citizenship has renewed his or her FSM passport twice, that in itself is a rebuttable presumption that he or she has shown “intent” to retain FSM citizenship and renounce the citizenship of the foreign country.


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This 2016 law took one step further from the 1979 law and merely prescribes that all you have to do, is renew your FSM passport, twice in a row. You need not appear before the FSM attorney general anymore to declare your intent or renounce your foreign citizenship. It appears that, perhaps, Congress might have amended Article III, Section 3 without a referendum.


What I find interesting about this ruling is that even if a dual citizen has declared his or her intent to remain an FSM citizen, either by taking the oath in front of the FSM attorney general before 2016 or by renewing the FSM passport twice in a row after 2016, that person is still considered a dual citizen because there is no formal renunciation of the foreign country’s citizenship pursuant to that country’s citizenship renunciation laws.


I would imagine that many FSM folks who have had to register their intent to remain an FSM citizen by renewing their passports twice in a row still hold dual citizenship, which is impermissible under the FSM Constitution.


The court ruling sets forth the procedure that all you have to do to retain your FSM citizenship is to take the affirmative step of renewing your FSM passport twice in a row. This way, you avoid losing your FSM citizenship and becoming an FSM national.


So how does this ruling affect the proposed constitutional amendment to allow for dual citizenship?


Perhaps we do not need passage of this proposal after all because the 2016 law already allows for dual citizenship if you renew your FSM passport twice in a row.


Marstella E. Jack is a Pohnpei-based attorney with 20 years of experience in trial advocacy work, legal drafting, legal research and community awareness legal advocacy work. Send feedback to ejacklaw@gmail.com.



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