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The Concept of Citizenship in Burma and the Status of Rohingyas

Laws & Policies, Rohingya

By Aman Ullah

In January 1947, Aung San led a small delegation to Landon to discuss Burma’s political future. The outcome of this visit was ‘Aung San-Atlee Agreement’, which was signed on 27th January 1947. According to that agreement, which said, ‘in order to decide on the future of Burma a Constituent Assembly shall be elected within four months instead of Legislature under the Act of 1935. For this purpose the electoral machinery of 1935 Act will be used. Election will take place in April 1947 for the general non-communal, the Karen and the Anglo-Burman constituencies as constituted under the Act of 1935, and each constituency two member shall be returned. Any Burma nationals defined in the ‘Annex A’ of the Agreement registered in a general constituency other than one of those mentioned above shall be placed on the register of a general non-communal constituency.’

According to the ‘Annex A’ of that Agreement, it was mentioned that, ‘A Burma National is defined for the purpose of eligibility to vote and to stand as a candidate at the forth coming election as British subject or the subject of an Indian State who was born in Burma and reside there for a total period not less than eight years in the ten years immediately preceding either 1st January, 1942 or 1st January 1947’.

Thus, it defined that, ‘ who was born in Burma and reside there for a total period not less than eight years in the ten years immediately preceding either 1st January, 1942 or 1st January 1947’ is a national of Burma and he can be eligible to vote and to stand for the vote in the upcoming constituent election.

The Nu-Attlee Agreement (Treaty between the Government of the United Kingdom and the Provincial Government of Burma, 1947) was very important as to the determination of the nationality status of the peoples and races in Burma. Article 3 of the Agreement states:

“Any person who at the date of the coming into force of the present Treaty is, by virtue of the Constitution of the Union of Burma, a citizen thereof and who is, or by virtue of a subsequent election is deemed to be, also a British subject, may make a declaration of alienage in the manner prescribed by the law of the Union, and thereupon shall cease to be a citizen of the Union.”

The Section 10 of the 1947 Constitution of the Union of Burma states “there shall be but only one citizenship though out the Union; that is to say, there shall be no citizenship of the unit as distinct from the citizenship of the Union.”

Citizens, as defined by the 1947 Constitution, are persons who belong to an “indigenous race”, have a grandparent from an “indigenous race”, are children of citizens, or lived in British Burma prior to 1942. Under this law, citizens are required to obtain a National Registration Card (NRC), while non-citizens are given a Foreign Registration Certificate (FRC). Citizens whose parents hold FRCs are not allowed to run for public office.

Who are indigenous races was defined in Article 3 (1) of the Burma Citizenship Law 1948, which states: “ For the purposes of section 11 of the Constitution the expression any of the indigenous races of Burma shall mean the Arakanese, Burmese, Chin, Kachin, Karen, Kayah, Mon or Shan race and such racial group as has settled in any of the territories included within the Union as their permanent home from a period anterior to 1823 A. D. (1185 B.E.). These two categories of people and those descended from them are automatic citizens.” They did not require applying to court for naturalization. Rohingya are for all intent and purposes Arakanese and they are also a racial group who had settled in Arakan/Union of Burma as their permanent home from a period anterior to 1823 A. D. (1185 B.E.).

Therefore, the parliamentary government (1948-1962) had officially declared Rohingya as one of the indigenous ethnic groups of Burma. The declaration reads: “The people living in Maungdaw and Buthidaung regions are our national brethren. They are called Rohingya. They are on the same par in status of nationality with Kachin, Kayah, Karen, Mon, Rakhine and Shan. They are one of the ethnic races of Burma.”[1]

But Article 3 of the 1982 Burma Citizenship Law defines indigenous ethnic groups (Taing-Yin-Tha) stating “Nationals such as the Kachin, Karen, Chin, Burma, Mon, Rakhine or Shan and ethnic groups as have settled in any of the territories included within the States as their permanent home from a period anterior to 1185 B.E., 1823 A.D” are Burma citizens. Here the word ‘Rakhine’ replaced the word ‘Arakanese’ and is designedly attributed to the Buddhist Arakanese at the exclusion of the Muslim Rohingya Arakanese.

Unlike 1947 Constitution and 1948 Citizenship Law, 1982 Citizenship Law established three-tiered system of citizenship (full, associate and naturalized), which is actually more a question of categorization and discrimination, and is an instrument of oppression against Rohingyas and so-called non-indigenous racial groups. The category of associate citizenship should be abolished as it tends to create high class citizens and low class citizens within a nation. In conformity with the generally accepted citizenship concept, associate citizenship should be abolished. All citizens whether full citizens or naturalized citizens should be constitutionally treated as equal in dignity and rights. No special privileges should be granted to any individuals or groups on grounds of ethnicity and religion.

Article 44( c) states an applicant for naturalized citizenship shall have “to be able to speak well one of the national languages.”

This clauses pose very much oppressive tool towards anyone to denationalize the marginalized groups like Rohingya and to generate a lot of IDPs and refugees and it should be permanently deleted. Burma is an ethnically diverse country. There are people particularly those living in remote areas or isolated places of the country have no knowledge of Burmese nor are unable to speak well one of the so-called indigenous languages. In the case of Hasan Ali and Meher Ali[2] their Lordships of the Supreme Court observed: “Today in various parts of Burma there are people who, because of their origin and isolated way of life, are totally unlike the Burmese in appearance or speak of events which has occurred outside the limits of their habitation, They are nevertheless statutory citizens under the Union Citizenship Act (1948)….Thus mere race or appearance of a person or whether he has a knowledge of language of the Union is not the test as to whether he is a citizen of the Union.“

Article 71 of the 1982 law states “Organisations conferred with authority under this law shall give no reasons in matters carried out under this law”. It is not at all compatible with democracy and human rights. It should be scrapped for good. Every action should be answerable to law and constitution.

Rohingya were never legally treated as aliens

Rohingyas were not subjected to any laws related to Registration of Foreigners before or after Burma’s independence such as the Foreigner Act (Indian Act III, 1846), the Registration of Foreigners Act (Burma Act VII, 1940) and the Registration of Foreigners Rules, 1948. During colonial administration Rohingya representatives were elected from North Arakan as Burmese nationals from national quotas. In 1946, as an indigenous people, General Aung San assured full rights and privileges to Muslim Rohingya Arakanese saying “I give (offer) you a blank cheque. We will live together and die together. Demand what you want. I will do my best to fulfil them. If native people are divided, it will be difficult to achieve independence for Burma.[3]

Rohingya exercised the right of franchise (the right of citizenship and the right to vote) in all elections held in Burma from British colonial rule up to the present such as, 91 Department Administration election (1936), Aung San’s Constituent Assembly election (1947), all elections during parliamentary rule (1952, 1956, 1960), Ne Win’s BSPP (Burma Socialist Programme Party) constitutional referendum and election (1974) and SLORC military multiparty election (1990), military SPDC’s constitutional referendum (2008) and its multi-party election (2010).

In post independence, during parliamentary rule, the Burmese government issued two kinds of Identity Cards: — National Registration Cards (NRCs) to all Burmese residents and Foreigner’s Registration Certificates (FRCs) to all registered foreigners. As a matter of fact, as there was no citizenship certificate/card then, the NRC was the only ID generally used as a proof of one’s citizenship in Burma. NRC was first issued in 1952 starting from Maungdaw Township, where 96% population, at that time, was Rohingya. These NRCs are the same IDs issued to Rakhine and all other ethnic groups and citizens in the country. Under state programme, the immigration and national registration teams went round the villages, checked the family lists and took photographs of the inmates for the purpose of issuing NRCs. It was a bona fide document that allowed one to carry on all his national activities, without let or hindrance: — to possess moveable and immovable or landed properties, pursue education, including higher studies and professional courses in the country’s seats of learning, right to work and public services, including armed forces, and to obtain Burmese passport for travelling abroad, including pilgrimage to Holy Makkah. Like all other NRC holders the Rohingya enjoyed all basic rights and privileges although serious discrimination existed since 1962 military takeover.

What citizenship status do the Rohingya have in Burma?

The Rohingya are sons of the soil of Arakan/Burma cannot be overruled. Yet the government with xenophobes is denying Rohingya’s existence in Burma. They used to say that “there were no people existed in Burma by the name of Rohingya; the word Rohingya was not in the history, the word Rohingya was never hard of… etc.etc”. It is a blatant lie and is a shame because the critics know that they are lying perfidiously. With hatred against this people, they may instead say that “there was Rohingya, recognized by the Burmese parliamentary government as an ethnic group on par with other ethnic nationalities of the country; but now we reject them to be a part of us simply because we don’t like them for their physical feature, language, culture and religion.” They are blind to see and are ostriches to face reality and recognise the truth. Following are some of the realities:

1. The word ‘Rohingya’ was not coined but a historical name for the Muslim Arakanese. There is still Muslim village in Akayab (Sittwe) city by the name of Rohingya para. The word was conspicuous in various annals and is in the pages of history. “It can be asserted, however, that one claim of the Buddhist school in Rakhaing historiography, that Rohingya was an invention of the colonial period, is contradicted by the evidence.”[4]

2. Rohingyas were an integral part of the Mrauk U Empire before Burman occupation of it in 1784. They were kingmakers who virtually ruled Arakan with sublime civilization.

3. During British colonial period part of their traditional homeland was recognized as ‘Muslim Area of North Arakan’.

4. In 1946, Genreal Aung San assured them rights and freedom on par with other people of the country as natives of Arakan as well as one of the indigenous nationalities of Burma.

5. Under Article 3 of the Aung San-Attlee Treaty (1947) and the First Schedule to the Burma Independence Act 1947, the Rohingya are citizens of the Union of Burma. They are also one of the indigenous races of the country under Section 11 (1) (II) and (III) of the 1947 Constitution.

6. The parliamentary government (1948-1962) had recognized ‘Rohingya’ as one of the indigenous ethnic nationalities of Burma.

7. Giving special significance on the indigenous status of Rohingya, the former first Pesident of Burma Sao Shwe Theik stated, “Muslims of Arakan certainly belong to one of the indigenous races of Burma. If they do not belong to the indigenous races, we also cannot be taken as indigenous races.”[5]

8. Rohingya were never legally treated as foreigners by the British colonial administration and all governments that ruled Burma from independence in 1948, in various shape and manifestation. They duly exercised the right of franchise in all elections held in Burma and voted their representatives to legislative bodies or parliaments and various levels of administrative councils.

9. There were Rohingya MPs. Minister, parliamentary secretaries, professionals, doctors, engineers, lawyers, academics, civil and military officers, and others who run for public office. It is noteworthy that citizens whose parents hold FRCs are not allowed to run for public office.

The above are some of the many facts which bear witness that Rohingyas are an integral part of Burma’s society, and are bona fide citizens like any other recognized ethnic groups or national races of the country. Rohingya issue is not a question of ‘illegal immigration’ that the government with the vested interests is pretending and trying to hoodwink the international opinion to justify Rohingya persecution. It is a case of intolerance deeply entrenched in ‘systematic racism’ and preoccupation of the ‘Muslim phobia’. The only solution for their due accommodation in the family of the Union of Burma solely rests on the will of the ruling government.

Last not least, arbitrary deprivation of Rohingya’s citizenship is an international crime. Nonetheless, the Rohingya problem is first and foremost to be resolved within Burma that requires effective international pressure. Again in the face of the exhaustion of all domestic remedies the international community is the only hope for the restoration of their citizenship with collective rights. It will be sagacity on the part of the ruling government to response to the outcry of Rohingya and international reaction without delay.

Refrence: –
1) Radio speech by Prime Minister U Nu, 25 September 1954 at 8:00 PM
2) Public speech by Prime Minister U Nu and Defence Minister U Ba Swe at Maungdaw and Buthidaung respectively on 3& 4 November 1959.
3) Criminal Miscellaneous applications No. 155 and 156 of 1959 of the Supreme Court
4) Prof. Dr. Aung Zaw, “Tineyin Muslims Sapyusasu Poggu-kyawmya-2” (Indigenous gazetted Muslim elite-2), (in Burmese), 20009, p.188.
5) Dr. Michael W. Charney, Buddhism in Arakan: Theory and Historiography of the religious Basis of the Ethnonym” Forgotten Kingdom of Arakan Workshop, 23-24 November 2005, Bangkok, p.15.
6) “The Rohingyas: Bengali Muslims or Arakan Muslim”, Euro Burma Office (EBO) Briefing Paper No.2, 2009. In Dr. San Oo Aung 22 January 2008.

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