By EUDO CITIZENSHIP expert Dimitris Christopoulos
– Ass. Professor, Departement of Political Science and History, Panteion University.
On 1 February 2011, the 4th Chamber of the State Council (Symvoulio tis Epikrateias) has questioned the constitutionality of Law 3838/2010 concerning third country nationals' right to vote in local elections and the automatic ex lege acquisition of Greek citizenship by the second generation of migrant origins. The case has been referred to the Court’s plenary for the final verdict, which is expected for the end of 2011.
The main points of the 4th Chambers' verdict as regards to Law 3838/2010 concern:
(1) the perception of the nation as a normative fact distinguished from the constitutionally enshrined concept of the”Greek people”,
(2) the proclamation of ius sanguinis as a constitutional principle,
(3) the assessment that, because of the above mentioned points, a personalised judgment as far as the applicant's “national conscience” is concerned, is necessary before offering her or him a place among the Greek people, on condition that s/he fulfils the requirements of five years of residence of his parents and six years of attendance in a Greek school. Therefore, it is only through naturalisation that a foreigner may acquire Greek nationality.
(4) finally, the claim that, since the municipal elections are also held in order to elect a public authority, the right to participate is restricted to citizens.
Let’s examine these points one by one:
(1) The differentiation between the notion of the “people” and the “nation” is not new in Greek constitutional law. It has been theoretically approved by the constitutionalists of the Greek Interwar Junta (the so-called 4th of August regime), who needed to prove that the source of legitimacy is not the people but the nation and that the national will could thus be opposed to that of the people. The Court’s view that the nation is different from the people seen as a simple arithmetic whole, refers to a concept of the nation as a will that is qualitatively more important than the people's will.
(2) Ius sanguinis is a principle not only of the Greek but of almost all citizenship laws internationally. However, ranking ius sanguinis as a superior constitutional principle the transgression of which leads to the “decay of the nation” is legally unprecedented in Greek jurisprudence.
(3) Since automatic ius soli acquisition is rejected, the necessity of a personalised judgment as a condition for ius soli acquisition of nationality is a logical implication of the above.
(4) I would finally like to underline that the opinion according to which “to exercise the right to vote […] is restricted exclusively to Greek citizens and cannot be expanded to those who don't have the nationality” can only have as a legal base article 4, paragraph 4 of the Constitution, according to which “only Greek citizens can be accepted to public services”. However, the same article includes “exceptions introduced by special laws” and these might include Law 3838/2010. As a result, the decision of the 4th Chamber is also problematic from a constitutional point of view. This would not be so important considered as a bare fact. Greece is not the only country were obstacles are posed for the vote of immigrants in municipal elections. The most important issue is that, according to the 4th Chamber, the specific part of the law is the first article of the Constitution which establishes popular sovereignty as the cornerstone of Greek democracy.
In a few words, the Chamber of the State Council seems to believe that the Greek people transgresses its authority if it decides to permit the vote of immigrants in local elections and the acquisition of nationality by the ‘second generation’. The unavoidable question that is thus posed is the following one: what constitutes the sovereignty of the Greek people if not its capacity to freely decide its future composition via parliament, even if a section of the State Council considers otherwise?