Does the 1982 Citizenship Law of Myanmar really strip off Rohingyas’ citizenship? The Rohingyas are now the biggest community of stateless people in the world. The challenges connected with the rights and citizenship of the Rohingyas in Myanmar are considered by many as the most knotty issue in recent times giving rise to a lot of talk on the legal status of the Rohingyas in Myanmar and implications thereof.
The denial of full citizenship rights to the Rohingyas means that they are subjected to infringement of their fundamental human rights, discriminatory treatments e.g. restrictions on their freedom of movement, access to education, and arbitrary confiscation of property. It, therefore, unavoidably raises grave hindrance to the attainment of a sturdy and enduring way out to the exodus of these people from Myanmar to Bangladesh over and over again.
The 1982 Burma Citizenship Law (1982 Act) distinguishes its citizens under three categories of citizenship: citizenship, associate citizenship, and naturalised citizenship. A person is issued with a colour-coded Citizenship Scrutiny Card consistent with his or her citizenship status - pink, blue, and green respectively.
Section 3, Chapter II of the 1982 Act provides that “Nationals such as the Kachin, Kayah, Karen, Chin, Burman, Mon, Rakhine or Shan and ethnic groups as having settled in any of the territories included within the State as their permanent home from a period anterior to 1185 B.E., 1823 A.D. are Burma citizens”. It may also be noted that a person not belonging to any of the national races or ethnic groups (as stated in Chapter II and Section 3 of the 1982 Law) may still be eligible to become a citizen under the Citizenship category as Chapter II, Section 6 states, “A person who is already a citizen on the date the Law comes into force is a citizen”. It, therefore, implies that a person who is unable to produce proof of his/her linkage to ancestry, which settled in Burma before 1823, or was not already a citizen before 1982 came into effect will not be a citizen under Citizenship category but he may still be eligible for citizenship under the other two categories.
The Associate citizenship is applicable for all those who did not obtain citizenship but applied for it under the 1948 Union Citizenship Act as per Chapter III of the 1982 Citizenship Law while the category under Naturalised Citizenship is applicable to “A person who has entered and resided in the State anterior to the 4th January 1948 and off springs born within the State may, if he has not yet applied under the Union Citizenship Act 1948”. Besides, a person who has at least one parent who holds one of the three types of Burmese/Myanmar citizenship is also eligible. Besides these two qualifications, Section 44 of the 1982 Act stipulates that an applicant for naturalized citizenship shall have the following qualifications: (a) be a person who conforms to the provisions of section 42 or section 43; (b) have completed the age of eighteen years; (c) be able to speak well one of the national languages; (d) be of good character; (e) be of sound mind.
On December 29, 2014, the UN General Assembly adopted a resolution calling on the Burmese Government to amend the 1982 Act so that it no longer discriminates against the Rohingyas. However, successive Burmese governments, including the government under Thein Sein, have not allegedly used the law correctly and have possibly exercised administrative latitude to deny citizenship to an estimated 800,000 to 1.3 million Rohingyas, especially of the Rakhine State. The publication of the official list of 135 national races in 1990 is an example in this regard.
It is widely believed that the Rohingyas have been stateless since they were collectively stripped off their citizenship by the 1982 Myanmar Citizenship Law which recognises 135 ethnic groups. Brad Adams, the Executive Director of the Asian Division of Human Rights Watch expressed saying, “Burma’s discriminatory citizenship law not only deprives Rohingya of citizenship but for decades has encouraged systematic rights violations. Amending the law to bring it in line with international standards is the first step for resolving this long-standing human rights abomination.” The Human Rights Watch reported that the March-April 2014 census conducted by the Burmese government with assistance from the United Nations Population Fund did not enumerate people who self-identified as Rohingya. Preliminary results released in August estimated that 1.09 million people were not counted.
But from the foregoing discussion on the relevant aspects of the 1982 Law one may find that such a view about the 1982 Law is not fully correct. The causes for rendering the Rohingyas of Rakhine State stateless may not, therefore, be attributed to the 1982 Law but to the process of verification for granting them citizenship. The detailed scrutiny of the said Law rather suggests that the Rohingyas of the Rakhine State are eligible to apply for citizenship in Myanmar and they may fall under any of the three categories depending on the documents that they can submit for the purpose. A point to be noted that in September 2016, following a request from Daw Aung San Suu Kyi, the State Counsellor of Myanmar, the Kofi Annan Foundation and the
Office of the State Counsellor established an Advisory Commission on Rakhine State having the majority of its members from Myanmar. It was mandated to examine the complex challenges facing Rakhine State and to propose answers to those challenges. The Commission was specifically mandated to explore this issue and provide recommendations related to citizenship and documentation and propose actions to clarify questions of citizenship. The Commission in its final report mentioned that if this issue is not addressed properly it will continue to cause significant human suffering and insecurity, while also holding back the economic and social development of the entire state. It further stated that in the short term, addressing this issue requires an acceleration of the citizenship verification process, and the Commission fully recognises that such an exercise must be carried out under the 1982 Citizenship Law saying, “While recognising that the 1982 Law is the current basis for citizenship, the Commission recommends the Government set in motion a process to review the law”. It has recommended for this 1982 Law to be reviewed and not repealed. It also pointed out that the implementation of this Law significantly narrowed the prospects of citizenship for the Muslims in Rakhine State. It goes on to say that in 1989, a citizenship inspection process was carried out across Myanmar, and those found to meet the new requirements had their National Registration Cards (NRCs) replaced with new “Citizenship Scrutiny Cards” (CSCs). The majority of Muslims in Rakhine with NRCs surrendered their documents, but were never issued with CSCs, rendering them de facto stateless. From 1995, the authorities began issuing Temporary Residency Card (TRCs, or “white cards”) to Muslims in Rakhine State who did not have identity documents, as well as to returning refugees. In early
2015, the Government invalidated all TRCs, and the Constitutional Tribunal ruled that TRC-holders were ineligible to vote. In the democratic elections in November 2015, Muslims from Rakhine were neither allowed to participate as candidates, nor as voters unlike in all previous elections since independence in 1948. As regards the issue of ethnicity, the Commission Report states that the current Government under NLD has restarted the verification process, issuing Identity cards for National Verification Cards (ICVN) which no longer requires the applicants to indicate their ethnicity or religion in the application form. It is, indeed, a good omen for finding a solution to the citizenship issue of the Rohingyas.
In view of the foregoing, one may say that the Rohingyas are clearly eligible to be granted citizenship under the 1982 Myanmar Citizenship Law, which is a silver lining in the cloud so far as the resolution of the Rohingya crisis is concerned. Such a resolution will, however, depend not only on the speedy repatriation of the Rohingyas from Bangladesh to Myanmar as per the MoU, signed by both Bangladesh and Myanmar on 23 November 2017, but also on the implementation of the recommendations of the Advisory Commission to grant the returnees citizenship of Myanmar in accordance with its existing 1982 Citizenship Law.
The writers are former Ambassador to Myanmar and
Advocate, Supreme Court of Bangladesh respectively