One of the requirements for becoming a judge is citizenship, which contributes to a very important principle, that of independence of the judiciary.
It is often the case that a resident has left his country to improve his standard of living, which is linked to the state where he is working on a temporary basis. Tempting him could simply mean extending his work permit, and the opposite could obviously represent a threat to him.
The judicial system is a manifestation of the sovereignty of the state, and the constitutional court represents the pinnacle of the judicial system.
Many constitutions explicitly mention the requirement of citizenship for those chosen as judges in the Constitutional Court.
Article 1/174 of the South African Constitution of 1996 stipulates that “the person designated to work in the Constitutional Court must be a citizen of South Africa.”
Article 119 of the Russian Federation Constitution of 1993 states that “judges must be citizens of the Russian Federation,” which applies to all judges, including the ones for the Constitutional Court.
Due to the importance of this position, some constitutions require not only citizenship but also emphasise that the judge of the Constitutional Court shouldn’t hold the nationality of another state.
Article 152 of the Syrian Constitution of 2012, for example, states that “no person who holds another nationality other than Syrian Arab nationality can assume the position of President, Vice President, Prime Minister or his deputies, minister, a member of the People’s Assembly or member of the Supreme Constitutional Court.”
Article 61 of the Jordanian Constitution of 1952 states that a member of the Constitutional Court must be Jordanian, and shall not have the nationality of another country.
Some countries not only require single citizenship for a person to become a judge of the Constitutional Court, but also stipulate that the citizenship must have been acquired by birth and not naturalisation, confirming that the person is a citizen who was born in that country and enjoys political rights such as to vote and get elected, which are granted only to citizens.
In the Colombian Constitution of 1991, for example, Article 147 specifies that to become a judge in the High Court of Justice of the Constitutional Court or the State Council, one should “be a Colombian citizen by birth.”
Article 433 of the Ecuadorian Constitution states that to be appointed a member of the Constitutional Court, one must be an Ecuadorian citizen enjoying his/her full political rights.
In contrast, the constitutions of some countries don’t explicitly state the nationality clause for a person chosen as a member of the Constitutional Court, as this may be considered a self-evident requirement, confirmed by common law, that one who holds the post of judge must be a citizen.
The law may stipulate an exception that qualified individuals from other countries may assume a judge’s position because of a lack of availability of qualified persons among the citizens of that country.
Kuwait is one of the countries that does not explicitly specify the citizenship clause in its constitution for a person to be a member of the Constitutional Court. However, when it passed the law establishing the Constitutional Court, only Kuwaiti advisers were selected from the Courts of Cassation and Appeal.
In Qatar, the citizenship clause has been left open. In accordance with that, if Qatari citizens do not meet the conditions, a judge of any other Arab nationality can be appointed.
This is justified by the desire of the legislature not to restrict the scope of selection. The non-requirement of Qatari nationality may also be justified by appointing judges from countries that established a constitutional court before Qatar, thereby providing the benefit of their experience in this field.
So when will the Qatari court see the light of day?
The author is an academic and a researcher
