Fraud by Caitu, if he is Portuguese citizen

By Cleofato A Coutinho
27 April 2012 00:04 IST

Valanka Alemao’s election petition against Caitano Rosario Silva alias ‘Caitu’ may not been taken seriously by the Goa Electorate which rejected the Congress party and the Alemao clan decisively in the last assembly elections. The Goa electorate has also not taken kindly the very filing of the petition as the Benaulim Constituency voted against her to bring in an otherwise unknown face.

The petition filed by Valanka Alemao raises an extremely serious issue which even the framers of the Constitution may have not imagined! ‘Caitu’ is accused of having attained Portuguese citizenship and has suppressed that fact from the Returning Officer. The petition is likely to open a can of worms, If the rumours doing the round are to be believed. The petition against ‘Caitu’ adds another new dimension to electoral Law, since the elected person continues in office until the High Court decides the matter in an election petition.

If the accusation is correct, then a Portuguese citizen functioning as Goa MLA shall be a fraud on the Constitution of India!

Normally elections are challenged by way of election petitions which are filed after the election process is over and the election petitions take a long time for adjudication since recording of Evidence is involved in these petitions. There are no interim reliefs granted in election petitions. In almost every case, the elected person takes a trip to the Supreme Court even before the trial starts. Time takes its own toll and in most cases the election petitions became infructuous.

Dayanand Mandrekar and Rajendra Arlekar were disqualified almost at the fag end of their tenure in 2007. The petition against Dayanand Narvekar was withdrawn in February 2012 as fresh elections were underway.

During the period until the High Courts decides, the elected legislators enjoy the benefits of office and attend the House taking part in the normal legislative work. But a legislator accused of being a foreign national and carrying on legislating work is bizarre situation. Such accusations must be probed or adjudicated without any delay, but that does not happen.   

The Indian Constitution has two situations for disqualification (a) disqualification attained by a person before the electoral process (b) disqualification attained by a person after the electoral process.

The problem with the procedure under the Constitution is that in case of disqualification prior to filing of nomination, a election petition has to be filed and in case disqualification is attained after the electoral process is over, the Governor can decide on the disqualification after taking the mandatory opinion of the Election Commission of India under Art. 192.

Governor deciding after the opinion of the Election Commission could be a faster remedy but that may not be available for disqualification attained prior to the electoral process.

Valanka’s petition states that ‘Caitu’ attained disqualification on 21/7/10. According to her, it is on this day that ‘Caitu’ voluntarily acquired the citizenship of Portugal. She claims that ‘Caitu’ got his birth registered with the Central Registrar of Births, Marriages and Deaths of Lisbon. It is claimed that Caitu’s application in file No. 1069537/10 the Central registrar of Birth, Marriages and Death of Lisbon registered the birth of ‘Caitu’ under No. 977517 of 2010 (These are allegations to be proved).

According to the petition, the Law in Portugal is so far as nationality is “Organic Law of 2006” which amends the earlier law.

Article 1 of the said Organic Law No. 2/2006 reads as under:

Portuguese of origin are:

(a)  The children of Portuguese mother or Portuguese father born in Portuguese territories.

(b) The children of Portuguese mother or Portuguese father born in foreign countries if the Portuguese progenitor is found there in employment of Portuguese government.

(c)  The children of Portuguese mother or Portuguese father born abroad, if they have their birth inscribed in the Portuguese civil Registers or they declare that they want to be Portuguese.

Article 19 of the said Organic Law of 2006 under the heading “Regulation of Nationality”

“ That the registration of the act which amounts to attribution, acquisition or loss of nationality is recorded by entry (registration) or by endorsement.”

Under the Portuguese Law, nationality of an individual is proved by birth registration.

The issues before the Hon’ble High Court in the petition against ‘Caitu’ would be (a) whether the claim that ‘Caitu’ got his birth registered in Portugal is correct. (b) if the birth is indeed registered, does it give him Portuguese nationality?

Under the Constitution of India, no person can be a citizen of India if he/she has voluntarily acquired the citizenship of any foreign country.

One of the fundamental criteria to contest elections is that the candidate must be a citizen of India. The alleged foreign nationality of ‘Caitu’ raises a issue whether when an allegation of fundamental nature is made in a election petition or otherwise, should he be permitted to function as a legislator? Or whether there has to be a mechanism to immediately adjudicate on such serious allegations.

In another matter, the Supreme Court (AIR 1999, 1723) was dealing with a case where the candidate was disqualified from contesting elections to the Tamil Nadu Legislative Assembly due to him being convicted but no petition was filed against him. The Madras High Court in a writ petition held the MLA not to possess the basic qualification prescribed in the Constitution. When the matter came up before the Supreme Court on whether elected MLA’s election could be questioned without a election petition, the Supreme Court observed “…Consider the case where the person elected is not a citizen of India. Would the court allow a foreign citizen to sit and vote in the Legislative assembly and not exercise jurisdiction under Article 226 of the constitution?”

In fact under Art. 193 of the Constitution of India, a person who knows that he is not qualified to be a Member of Parliament or a legislature shall be liable to penalty of Rs. 500/- per day he sits or votes in the House. Besides, the elected legislator shall be liable for criminal prosecution for suppressing foreign Nationality in the affidavit filed before the returning officer would be criminal offence

The candidate who lost the election may have vested interest in the election petition since the lost candidate is entitled to seek a declaration of being him/her duly elected. That the courts normally do not grant such declaration is a different matter altogether.

But the question is whether when an allegation of lack of basic fundamental qualification like citizenship is raised whether it should be left to be decided by normal process. There shall always be frivolous petitions. Even Sonia Gandhi was accused of being a foreign national.  

No doubt the High Court can always question under Article 226 of the Constitution of India, when serious fundamental disqualification such as citizenship of an elected legislator is raised, the matter requires urgent adjudication to avoid unnecessary acrimony.

May be an amendment to the Constitution is required to be deal with such matters whereby the Governor, who is otherwise empowered to decide the disqualifications after the election, is also empowered to settle such serious fundamental disqualification in consultation with the Election Commission. Foreign nationals cannot be permitted to sit and vote in the Assemblies or Parliament.  

‘Caitu’ case may only open the Pandora’s Box in view of large number of Goans from the coastal belt opting to register their birth in Portugal and opting for Portuguese nationality as a corridor to Europe.

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Cleofato A Coutinho

Cleofato Almeida Coutinho is a senior lawyer and one of the constitutional expert in Goa. A member of Law Commission of Goa, he also teaches at Kare College of Law in Madgao.

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Previous Comments

Respected sir,

so many people of goa whose birth certificate has been registered in portugal and have a bilate de indade(B.I) with no portuguese passport and their children with portuguese passport r der in london. their parents r in goa their names r der on the election role and they vote for the election.so when you vote you become the citizenship of india. rule should be equall to every body. or delete their names from the election role.

- savio, colva | 18 th June 2012 19:55

 

Maybe Valanka Alemao should ask her friend of 20 years,her election Campaigner & British Parliametarian Keith Vaz,how come he was Born in Aden-Yemen,had his Birth registered there (Aden) and yet became a Member of the UK Parliament.

- N.Fernandes, London | 28 th May 2012 19:49

 

I’m reposting my comment dated 25 MAY 2012 18:26 IST because this comment carried a mistake while expressing my opinion.



My comment, after required change, is as follows: -

Frustrated Valanka filed a petition in the High Court at Goa against Benaulim MLA Caetano Silva alias Caitu alleging that he registered his birth in Portugal just two years ago, on 21 July 2010, hence it amounts to his having Portuguese citizenship. She also prayed to disqualify Caitu and reinstate her as MLA of Benaulim as she is the second highest vote getter.

The filed petition spins round three aspects: 1) what is ‘Cartao de cidadao’ which was formerly called ‘Bilhete de identidade’; 2) The Portuguese Nationality Act - Law 37/81 to understand the distinctions between Origin and Naturalization and 3) Does registering birth alone in Portugal makes the person Portugal Citizen.

As reported by many local dailies, Silva is born in Goa and holds and uses only Indian assport while traveling out of Goa. ‘Cartao de cidadao’ document only indicates that the person holding this document is born during Portuguese regime or has legacy of close relative (father, mother, grand fathers/mothers, etc.) born during that regime. This document only entitles the person to travel freely in any EU countries. Holding this document or registering birth in Portugal in no way amounts to having Portuguese Citizen.

Most importantly, if only registering birth in Portugal makes a person Portuguese Citizens than all Goans born on or before 19th December 1961 will have to be considered as Portuguese Citizens, which in fact they are, for they have not officially renounced their original Portuguese citizenship. In this context all (mostly) seating MLAs of Goa assembly automatically becomes Portuguese Citizens as they have till date not renounced their original Portuguese Citizenship, which they were having as on 19-12-1961.

Actually many Catholics in Goa including Churchill, Eduardo, Luizinho and many other famous personalities do have exclusive Portuguese Passport apart from holding Indian Passport and Citizenship. Portugal, America and some other nations do allow dual citizenship but Indian government does not accept dual citizenship! Yet these Portuguese passport holders enjoy the benefits of dual citizenship illegally by residing in Goa and claiming all benefits of Indian Citizens and even becoming ministers of Goa leave alone becoming MLAs!

Going little further, according to Valanka, Sonia Gandhi also becomes Italian Citizen as she is born in Italy and her birth is registered in Italy!! So now what?

- Uday, Margao | 27 th May 2012 08:10

 

Frustrated Valanka filed a petition in a high court at Goa against Benaulim MLA Caetano Silva alias Caitu alleges that he registered his birth in Portugal just two years ago, on 21 July 2010, hence amounts to having Portuguese citizenship. She also prayed to disqualify Caitu and reinstate her as MLA of Benaulim as she is the second highest vote getter.

First thing that comes to my mind is why did Valanka opt to by-pass the Legal obligations & Authority of the Goa State Legislature Speaker, and even that of the Election Commission of India and preferred to file a petition in the high court?

The filed petition spines round three aspects: 1) what is ‘Cartao de cidadao’ which was formerly called ‘Bilhete de identidade’; 2) The Portuguese Nationality Act - Law 37/81to understand the distinctions between Origin and Naturalization and 3) Does registering birth alone in Portugal makes the person Portugal Citizen.

As reported by many local dailies, Silva is born in Goa and holds and uses only India Passport while traveling out of Goa. ‘Cartao de cidadao’ document only indicates that the person holding this document is born during Portuguese regime or has legacy of close relative (father, mother, grand fathers/mothers, etc.) born during that regime. This document only entitles the person to travel freely in any EU countries. Holding this document or registering birth in Portugal in no way amounts to having Portuguese Citizen.

Most importantly, if only registering birth in Portugal makes a person Portuguese Citizens than all Goans born on or before 19th December 1961 will have to be considered as Portuguese Citizens, which in fact they are, for they have not renounced their original Portuguese citizenship. In this context all (mostly) seating MLAs of Goa assembly automatically become Portuguese Citizens as they have till date not renounced their original Portuguese Citizenship! Actually many Catholics in Goa including Churchill, Eduardo, and many other famous personalities do have exclusive Portuguese Passport apart from holding Indian Citizenship and residing and claiming all benefits of Indian Citizens!

Going little further, according to Valanka, Sonia Gandhi also becomes Italian Citizen by birth as her birth being registered in Italy!! So now what?

- Uday, Margao | 25 th May 2012 18:26

 

Does the registration of one's birth in Portugal automatically make one a Portuguese citizen, or is it the completion of the citizenship process and the acquisition of the 'Bilhete de Identidade' or national citizenship identity card of Portugal?

I think it is the latter. Caitu may have applied for a 'Bilhete', but if he did not complete the process, does that make him a Portuguese citizen?

- Ashwin Tombat, Panaji | 04 th May 2012 17:38

 

The same rule applies to Churchill Alemao the great fisherfolk or fish monger. There is a rumour that he too has a Portuguese passport. Apparently churchill told his daughter not to bring up the Caitu issue, knowing for sure his citizenship would be brought up. But she didnt listen.

He has made money enough for 10 generations. I heard he has a big statue of Mother of Vailankanni in his house where each morning he prays before he gets out. I guess his prayers are only " oh Mother, who can i rob today. Help me to make a big wack today"

- Cynthia, Goa | 03 rd May 2012 10:15

 

I find it impossible for an eminent lawyer to post such frivolous comments. As per Portuguese law, all people born before 19/12/1961 are Portuguese. they never surrendered it. The people of Goa never rejected Indian citizenship, but neither did they surrender Portuguese citizenship.

- Julio, Jordan | 02 nd May 2012 23:45

 

Mr. Parrikar,

Kindly do not speak nonsence. Its not your fault that your MLA is prima facie disqualified. He should have disclosed the true facts to you and to all before filing nomination. Best order in this case is what was made in Dayanand Rayu Mandrekar and Rajendra Arlekar. The speaker should debar him from participating and voting in assembly and drawing remuneration till the matter is finally decided by court. This is as per law laid down in Indira Gandhi V/s Raj Narayan

- Peter, Margao | 27 th April 2012 16:10

 

This matter is sub-judice. Law will take its own course.

Untill these accusations are proven beyond reasonable doubt and the honorable High Court passes an Order, its imprudent to comment or write such article.

- Mahesh Parrikar, Mapusa | 27 th April 2012 00:24

 

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