By Aman Ullah
The Term Rohingya
The National Government (NUG) of Myanmar has issued a new ‘Policy Position on the Rohingya in Rakhine State’, acknowledging the rights of the Rohingya and the atrocities they faced in Myanmar on June 3, 2021.
In its policy statement, the NUG stated their five-key commitment, that are; –
- Providing the Rohingya citizenship;
- Abolishing the 1982 Citizenship Law and promulgating a new citizenship law that based on birth;
- Abolishing National Verification Cards and recognizing that these were imposed on the Rohingya people coercively and with human rights violation;
- Committing to repatriation of the Rohingya as soon as it can be accomplished in a voluntary, safe, and dignified manner; and
- Acknowledging the gross human rights violation inflicted upon the Rohingya by the military and expressing a willingness to give the international Criminal Court jurisdiction over these crimes.
Moreover, in their whole statement the NUG used the term Rohingya. The NLD government had avoided using the term “Rohingya”, which is widely rejected in Myanmar in favour of “Bengali”, which implies they are interlopers from Bangladesh. Aung San Suu Kyi’s administration instead called them “Muslims living in Rakhine”.
Rohingyas are descended from local indigenous tribes who lived in Arakan since the dawn of history. They trace their ancestry to Arabs, Moors, Pathans, Moguls, Bengalis and some Indo-Mongoliod people. They are living in Arakan generation after generation for centuries after centuries and their arrival in Arakan has predated the arrival of many other peoples and races now residing in Arakan and other parts of Burma. Early Muslim settlement in Arakan dates back to 7th century AD. They developed from different stocks of people and concentrated in a common geographical location from their own society with a consolidated population in Arakan well before the Burman invasion in 1784.
The influence and power of the Muslims grew in Arakan to the extent of forming their own administrative system. There were Muslim rulers, nobles, Qazis, scholars, generals and poets etc. who developed the country’s administration, shaped a healthy socio-cultural life of the people, encouraged the growth of Islamic culture and civilization and replaced Muslim heritage in Arakan.
The Muslims of Arakan over the centuries have had many terms by which to identify themselves, including the terms Arakanese Mohammadan, Rakhine Muslim, Arakan Muslim, and Rohingya, the last of which has become more prominent in recent times.
The Muslims of Arakan called their country, in their own language, ‘Rohang or Roang’ and called themselves as Rohangya (Rohang+ya) or Roangya (Roang+ya) means native of Rohang or Roang. In Burmese it is ‘ရိုဟင္ဂ်ာ’, in Rakhine’s pronunciation it will read as ‘Rohongya’ but in Burmese Pronunciation it became ‘Rohingya’ and now it’s established as ‘Rohingya’. Like other peoples of the world, they have needed to identify as Rohingya to some degree for centuries.
The term Rohingya is widely used by the international community to identify as a group of Muslims of Arakan. According to Dr. Ganganath Jha of Jawaharlal Nehru University of India, the term Rohingya is derived from Rohang the ancient name of Arakan.
The term Rohingya was not new and this term was in used for three hundred years. The first known record of a very similar word to Rohingya used to refer to the Muslim inhabitants of Arakan is to be found in an article about the languages spoken in the “Burma Empire” published by the Scottish physician Francis Buchanan in 1799. He wrote: “I shall now add three dialects, spoken in the Burma Empire, but evidently derived from the language of the Hindu nation. The first is that spoken by the Mohammedans, who have long settled in Arakan, and who call themselves Rooinga, or natives of Arakan.”
The ‘Classical Journal of 1811’ mentions three languages spoken in the ‘Burmah Empire’ and distinguishes between the Rohingya and the Rakhine as the main ethnic groups in the region. Johann Severin Vater in his compendium of languages published in German in 1815, mentioned ‘Ruinga’ as an ethnic group with a distinct language. The term Rohingya is believed to originate from the word ‘Rohang’, which was the Bengali name given to Arakan at the time. Rohingya, therefore, meant Arakanese. These are irrefutable proof that, the Rohingya were occupants of the Rakhine State from centuries before the arrival of the British.
In the work of Arab geographer Rashiduddin (1310 AD) Arakan appears as ‘Rahan or Raham’. The British travelers Relph Fitch (1586 AD) referred the name of Arakan as ‘Rocon’. In the Rennell’s map (1771 AD), it is ‘Rassawn’. Tripura Chronicle Rajmala mentions as ‘Roshang’. In the medieval works of the poets of Arakan and Chittagong, like Quazi Daulat, Mardan, Shamser Ali, Quraishi Magan, Alaol, Ainuddin, Abdul Ghani and others, they frequently referred to Arakan as ‘Roshang’, ‘Roshanga’, ‘Roshango Shar’, and ‘Roshango Des’. Famous European traveler Francis Buchanam (1762-1829 AD) in his accounts mentioned Arakan as “Rossawn, Rohhawn, Roang, Reng or Rung”. The Persians called it ‘Rekan’.” The Chakmas and Saks from 18th century called it ‘Roang’.
However, the successive Burmese regimes always tried to reject, to deny and to defiant the term ‘Rohingya’. They claim that, the Rohingya ethnicity is not real and was invented recently out of blue. There were/are no Rohingya in Burma. Moreover, many Rakhine nationalist claims that, the term Rohingya was created in the 1950s to promote the political demands of the Bengalis in Myanmar.
The Rohingya and their citizenship
The National Government (NUG) of Myanmar has issued a new ‘Policy Position on the Rohingya in Rakhine State’, acknowledging the rights of the Rohingya and the atrocities they faced in Myanmar on June 3, 2021. One of the five-key commitments of the statement is to provide the Rohingya citizenship.
Citizenship is a “right to have right.” According to Article 15 of the Universal Declaration of Human Rights, “everyone has the right to a nationality,” and “no one shall be arbitrarily deprived of his nationality.” As a member of the United Nations, Burma is legally obliged to take action to promote “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.”
The term ‘citizen’ was first mentioned in the Nu-Atlee Agreement, which was signed U Nu of Burma and Clement Atlee of United Kingdom on October 17, 1947. This Agreement was a ‘Treaty between the Government of the United Kingdom and the Provisional Government of Burma’, known as the Nu-Atlee Agreement within the UN Charter on the principle of decolonization. This Agreement not only recognized formally the independence of Union of Burma but also decolonized all the peoples living in Burma and make them citizens of the newly independent state.
In Article 1, the Government of the UK recognizes the Republic of the Union of Burma as a fully Independent Sovereign State. In the Article 3 of the Nu-Atlee Agreement, a citizen of Burma (Myanmar) defined:
“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 Provisional Government of Burma undertake to introduce in the Parliament of the Union as early as possible, and in any case within a period of one year from the coming into force of the present Treaty, legislation for the purpose of implementing the provisions of this Article.”
Article 14 of the Nu-Atlee Agreement is the most part of the agreement under international law, in the case of any dispute on the implementation of the agreement, the article states that: “Should any difference arise relative to the application or the interpretation of the present Treaty, and should the contracting parties fail to settle such difference by direct negotiations, the difference shall be deferred to the International Court of Justice unless the parties agree to another mode of settlement”.
Thus, the Nu-Atlee Agreement is an international agreement under the United Nations` system of decolonization. The very object of the Nu-Atlee Agreement is the decolonization of the all peoples living in Burma. Before the independence of Myanmar, all the peoples including the minorities were under the protection of the Article 73 of the United Nations` Charter by the General Assembly Resolution66 (I). In Article 73, the interests of the inhabitants of the territories whose peoples have not yet attained a full measure of self-government as a principle defined as “paramount”, this principle includes “the well-being of them.”
The British parliament approved the Burma Independence Act 1947, a bill to Provide for the independence of Burma as a country not within His Majesty’s dominions and not entitled to His Majesty’s protection, and for consequential and connected matters on December 10, 1947, and Burma formally achieved its independence from Britain on 4 January 1948 and Nu-Atlee Agreement came into force on the day of the independence of Burma.
The Nu-Atlee Agreement is an agreement of decolonization, in other words, State succession of Burma from the British Empire. The effect of change of sovereignty upon the nationality of the inhabitants of the territory has a long history under the Customary International Law before the establishment of the United Nations. The territorial transfer is usually based on a treaty, and the agreement made between the ceding and cessionary State will, as a rule, include provisions concerning the nationality of the inhabitants of the ceded territory.
All the articles of the Nu-Atlee Agreement should be interpreted to reflect the goals of the right to self-determination without any acceptation of the peoples living in Burma. Peoples of Burma used their right of self-determination under the erga omnes provisions of the UN Charter on decolonization by the Nu-Atlee Agreement. Erga omnes is a Latin phrase which means “towards all” or “toward everyone”. In legal terminology, erga omnes rights or obligation are owed toward all.
The Constitution for this sovereign Independent Republic was completed on 24 September 1947 by the constituent Assembly. Following approval of the Constitution by the British parliament and signing of defense agreement, Burma became free on 4 January 1948. The people of Burma ceased the subjects of British and became independent citizens of independent country. That’s means that, then they will no more to be subjects of Her Majesty Queen Victoria and became independent citizens of independent Burma.
The Section 10 of the 1947 Constitution of the Union of Burma also states: “There shall be but, only one citizenship throughout the Union; that is to say, there shall be no citizenship of the unit as distinct from the citizenship of the Union.”
Under Section 11 of the Constitution of the Union of Burma (1947), as shown below,
- a) every person, both of whose parents belong or belonged to any of the indigenous races of Burma;
- b) every person born in any of the territories included within the Union, at least one of whose grand-parents belong or belonged to any of the indigenous races of Burma;
- c) every person born in any of territories included within the Union, of parents both of whom are, or if they had been alive at the commencement of this Constitution would have been, citizens of the Union;
- d) every person who was born in any of the territories which at the time of his birth was included within His Britannic Majesty’s dominions and who has resided in any of the territories included within the Union for a period of not less than eight years in the ten years immediately preceding the date of the commencement of this Constitution or immediately preceding the 1st January 1942 and who intends to reside permanently there in and who signifies his election of citizenship of the Union in the manner and within the time prescribed by law, shall be a citizen of the Union.
These are the fundamental rights of a citizen according to the Constitution of Union of Burma, 1947. In Article 12 of the Constitution its mentioned that, “Nothing contained in section 11 shall derogate from the power of the Parliament to make such laws as it thinks fit in respect of citizenship and alienage and any such law may provide for the admission of new classes of citizens or for the termination of the citizenship of any existing classes.”
Who are indigenous races was defined in Article 3 (1) of the Union Citizenship Act, 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.
According to Dr. Aye Maung, the then Chairman of the Drafting committee of the 1948 Union Citizenship Act, ‘The clause in the 1948 Union Citizenship Act “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.),” was especially for the Muslims of Arakan.’
The Muslims of Arakan have a more than 1300 years old tradition, culture, history and civilization of their own expressed in their shrines, cemeteries, sanctuaries, social and cultural institutions found scattered even today in every nock and corner of the land. By preserving their own heritages from the impact of Buddhist environments, they formed their own society with a consolidated population in Arakan well before the Burmese invasions of Arakan in 1784.
According to the British government document on the cultures and inhabitants of Arakan by the Secret and Political Department, Fort William dated 26th April 1826, “The population of Arracan and its dependencies Ramree, Cheduba & Sandaway does not at present exceed 100,00 souls, may be classed as — Mughs six tenths, – Mussalman three tenths, – Burmese one tenth, Total 100,000 Souls–.” As to Mr. Paton, Sub Commissioner of Arakan, who submitted this report from Akyab, “The extent of the Population has been tolerably well ascertained, proved a census taken by Mr. Robertson, and myself, and may be considered as approximating very nearly to the truth.”
That’s means that among the 100,000 souls; Mughs 60,000, Muslims 30,000 and Burmese 10,000. So, in the date of conquest of Arakan by the British, there remained thirty-thousand Muslims and these thirty thousand Muslims were living there from before, now their descendants and successors have increased leaps and bounds.
Prof. Dr. Michael Charney in his doctoral thesis ‘Where Jambudipa and Islamdom Converged: Religious Change and the Emergence of Buddhist in Early Modern Arakan (Fifteen to Nineteen Centuries)’mentioned that, “Our most reliable figures begin with the British survey of 1842. According to this survey, the population of the province of Arakan (roughly the same territory as that of the four classical zones— Danra-waddy, Rama-waddy, Dwara-waddy, and Mekha-waddy combined) amounted to about 250,000: 136,000 in Danra-waddy and 121,000 in the remainder of the province. In 1828, Paton estimated that there were about 100,000 people in the province of Arakan, but I am fairly certain that he was referring only to Danra-waddy, which was then considered to be Arakan proper. Further, the rate of increase from 100,000 in 1828 to121.000 fourteen years later in 1842, does not seem unreasonable. So, I suggest that the 100.000 figure is acceptable as a rough estimate of the population of Danra-waddy at the beginning of British rule.” “I suggest that the ceiling for Danra-waddy’s population in the early seventeenth century was at most about 170,000. “
No one in British Burma would dispute that there was a group of “Arakan Muslims” who could indeed trace their roots back to the 17th Century and even earlier and who were quite distinct from the Chittagonians and Bengali immigrants to Arakan.
According to the censuses of both 1921 and 1931, it has clearly mentioned that, ‘There was a Muslim community in Arakan, particularly in Akyab District, who prefers to call themselves Arakan-Mahomadens and were quite distinct from the Chittgonians and Bengali immigrants to Arakan.’ ‘According to Baxter report of 1940, paragraph 7, “This Arakanese Muslim community settled so long in Akyab District had for all intents and purposes to be regarded as an indigenous race.”
Thus, these Muslims of Arakan are for all intents and purposes to be regarded as an indigenous race and 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.).
According to Article 19 of the Indo-Burma Agreement of 1941, the British Government of Burma recognized that “Indians who are born and bred in Burma, have made their permanent home and regard the future of their families as bound up with its interests are entitled to be regarded as having established a claim, if they wish to make it, to a Burma domicile, and therefore to the benefit of the Section 144 of the Burma Act 1935″.
The Union Citizenship Act, 1948 was promulgated on 4 January 1948, as Act No. 66. The Union Citizenship (Election) Act, 1948 was promulgated on 3 May 1948, as Act No. 26. The aim of the first Act was first to define citizens and their rights. The Aim of the Union Citizenship (Election) Act was to solve the problem of immigrants who were already in Burma when Burma regained independence and they were to elect for Burmese citizenship if they so desired.”
Under the Article 4 (1) of the Union Citizenship Act , “Any person, who under sub-section (i), (ii) and (iii) of section 11 of the Constitution, is a citizen of the Union or who, under sub-section (iv) of section 11 of the Constitution, is entitled to elect for citizenship and who has been granted under the Union Citizenship (Election) Act, 1948 a certificate of citizenship, or who has been granted a certificate of naturalization or a certificate of citizenship or who has otherwise been granted the status of a citizen under this Act, shall continue to be a citizen of the Union, until he or she loses that status under the provisions of this Act.
In Article 4 (2) of that Act, (as amended up to 1960) states: “Any person descended from ancestors who for two generations at least have all made any of the territories included within the Union their permanent home and whose parents and himself were born in any of such territories shall be deemed to be a citizen of the Union.”
Moreover, any person who descended from ancestors who for two generations have made Burma their permanent home, and whose parents and himself were born in Burma, is a statutory citizen (1959 BLR (SC) 187), his descendants were also statutory citizens (1960 BLR (SC) 215), he is a citizen by birth and need not to apply for his citizenship (1965(CC) 128), and he is not bound to produce the certificate under Article 6(2) (1965 BLR (CC) 51).
At the times of succeeding censuses of the India, the Indian Muslims born in Arakan was as bellow: –
- In 1881 total Indian Muslims population was 113, 557 where 42, 443 were born in Burma.
- In 1891 total Indian Muslims population was 137, 922 where 75, 088 were born in Burma.
- In1901 total Indian Muslims population was 173, 884 where 97, 439 were born in Burma.
- In 1911 total Indian Muslims population was 197, 990 where 151, 399 were born in Burma.
- In 1921 total Indian Muslims population was 206, 990 where 155, 165 were born in Burma.
- In 1931 total Indian Muslims population was 217, 801 where 167, 236 were born in Burma.
Being one of the indigenous races and bona fide citizens of Burma, the Rohingyas were enfranchised in all the national and local elections of Burma except 2015 and 2020 elections: – during the later colonial period (1935-1948), during the democratic period (1948-1962), during the BSPP regime (1962-1988), 1990 multi-party election held by SLORC and 2010 General Election held by SPDC. Their representatives were in the Legislative Assembly, in the Constituent Assembly and in the Parliament. As members of the new Parliament, their representatives took the oath of allegiance to the Union of Burma on the 4thJanuary 1948. Their representatives were appointed as cabinet ministers and parliamentary secretaries.
Under all those laws and Acts mentioned above, the Muslims of Arakan who prefer to identify themselves in their own language as ‘Rohingya’ are not only one of the indigenous races of Burma but also full citizens of the Burma. Their citizenship matter was settled before the independence of Burma.
Those Rohinbgya who descended from ancestors who for two generations have made Burma their permanent home, and whose parents and himself were born in Burma, is a statutory citizen, his descendants were also statutory citizens, he is a citizen by birth and need not to apply for his citizenship, and he is not bound to produce the certificate under Article 6(2).
The controversial 1982 Burma Citizenship Law
The National Government (NUG) of Myanmar has issued a new ‘Policy Position on the Rohingya in Rakhine State’, acknowledging the rights of the Rohingya and the atrocities they faced in Myanmar on June 3, 2021. One of the NUG’s five-key commitments is to abolish the 1982 Citizenship Law and promulgating a new citizenship law that based on birth.
Ne Win completed this law with the help of Dr. Maung Maung before October 1982. U San Yu, the then Chairman of the Council of State, on 15 October 1982, promulgated a citizenship law as Pyithu Hluttaw law No. 4/1982. As Ne Win became only Party head since 1981, U San Yu was the then Chairman of the State Council and President.
This law was approved and passed by third session of the Third Pyithu Hluttaw after long six years deliberation within the top echelons of party and state as well as extensive consultations with officials and party leaders of all levels. As it was approved and passed in 1982, it was called “Burma Citizenship Law 1982”. It contains 8 Chapters and 76 sections recognizes three categories of citizens, namely citizen, associate citizen and naturalized citizen, Under, that law, citizenships are decided based on prescriptions of laws, not on racial and religions.
The National Coalition Government of the Union of Burma (NCGUB) states that the 1982 citizenship law was designed specifically to deny citizenship to the Rohingya. According to the Benjamin Zawacki , a Senior Legal Advisor for Southeast Asia, “The system anchor is the 1982 Citizenship Law, which in both design and implementation effectively denies the right to a nationality to Rohingya people.”
It was said that, this law is ingeniously designed to preserve the purity of the Burmese nationality although General Ne Win himself and many of his deputies were Chinese or Chinese origin.
However, in 1985 the government published and distributed to the peoples of Burma a form called ‘Nain-2’, a 25 pages form including 5 appendix pages. This form has three Chapters; Chapter-1 for at the age of 10 to 18 year, Chapter-2 for at the age of 18 year and Chapter-3 for at the age of 30 to 45 year. The applicant needs to give all the particulars information including the history of his/her education and occupation and submit the form with his/her fingerprints of both hands and toe prints of both legs. He/she has to give the particular information of his/her siblings; his/her parents and their siblings, his/her grandparents of both fraternal and maternal sides and their siblings, the parents of all their grandparents and their siblings, the applicant’s children and their children. The particulars, including name, date of birth, place of birth, race & type of citizen, identity card No., and if death– date and place of the death.
Each and every one of the Rohingya of Arakan timely submitted to the concerned authorities after completely filling the form with Rohingya as their identity. However, no action or reaction was made by the government. But the Rohingyas had enjoyed the right to vote and the right to be elected as people’s representatives to the Organ of State power at different levels in that election in the said election of 1986.
Reportedly, since the draft law was published in April 1982, at least six members of the 475 strong People’s Assembly—selected in 1982—have resigned because of their foreign ancestry they perhaps feared state appraisal if their origin was exposed later. Under the Section 18 of this Law the penalty for falsifying racial identity is up to ten years of imprisonment and fine of kyats fifty thousand.
However, this law was controversial and vague on the following grounds: –
- “Every Act shall be promulgated by the President of the Union by publication under his direction in the Gazette.” According to the Article 2 (24) of the Burma General Clauses Act 1898, “Gazette shall mean the Official Gazette for the Union of Burma.” Promulgation is to ensure that a newly enacted law becomes widely known by the public. In other words, it is an act whereby the people are enabled to know the law. A law must be promulgated before it actually takes effect. When a law is promulgated, it is given a serial number and signed by both the state minister responsible for the law and the Prime Minister/President. But This Burma Citizenship Law 1982 did not follow such procedure. Before enacting, it was drafted for many times. On 4th July 1980 in the Government Daily Guardian Newspaper, an official communiqué was published, under the caption: Socialist Republic of the Union of Burma-Law Commission-Paper on Solicitation of Public Opinion Regarding the Drafting of the Citizenship Law. However, when actual promulgation was done By U san Yu, the then Chairman of the State Council and President, on 15 October 1982, the law was only published the next day at the state own Working People’s Daily, without under direction of anybody or signed by anyone.
- A law is said to “come into effect” or “come into force” when it generally and actually takes effect and starts to apply. Laws usually stipulate in their attached clauses when they come into effect. Most of the laws and acts were attached clauses about the about commencement. For example: –
- The Registration of Foreigners Act 1940, As per article 1, This act shall come into force on the 28th arch 1940.
- The Burma Immigration (Emergency Provisions) Act, 1947, as per article 1 (2) It shall come into force at once.
- The Union Citizenship Act, 1948, as per Article 2 (1) it shall extend to the whole of the Burma and shall be deemed to have come into force on the 4th day of January, 1948.
- Not only that, at the article 6 of this 1982 Citizenship Law there mentioned that,” A person who is already a citizen on the date this Law comes into force is a citizen. The term “the date this Law comes into force” are mentioned in the articles 38, 43, 45, 52, and 61 of this 1982 citizenship law also. Thus, mentioning when the law or the act come into effect of into force is very much essential parts of this Law. Without this one cannot say that this Law is in force or not and it will remain as silent law. This 1982 Citizenship Law, Pyithu Hluttaw law No. 1982/4, neither mention the date of commencement as the part of this law nor there were enactment or resolution regarding this in any next sessions of parliament.
- The Citizenship Law contravenes several international human rights standards, including Article 15 of the Universal Declaration of Human Rights and the Convention on the Reduction of Statelessness. Insofar as its application condemns large numbers of people to second-class status and is grossly discriminatory against ethnic minorities, it infringes the prohibition against discrimination on the grounds of race, religion or national or social origin. The law also violates the Convention on the Rights of the Child, which Burma under the SLORC has ratified, and under which States are obliged to “respect the right of the child to preserve his or her identity, including nationality…” and for every child immediately after birth to have the right to acquire a nationality.
- This law, which was promulgated on deliberately deny the citizenship of the persons who had previously been recognized as citizen, is even more objectionable in so far as it was applied in an ex-post facto manner in contradiction to the international legal standards.
- This law was most controversial, vague, randomly interpreted and arbitrarily applied.
- Although the 1982 Citizenship Law was promulgated in 1982, the authorities never show their serious concern to implement it during Ne Win times or SLORC and SPDC period.
- Although, under the Article 202 (a) of Ne Win’s 1974 Constitution clearly states that, “This Constitution is the basic law of all the laws of the State.” Ne Win enacted this citizenship law, which was contrary to his constitution of 1974. However, he and his BSPP government did not enforced it during their term and set it as dead law. The USDP and Thein Sein’s Government intentionally try to use this dead law as a legal law against the Muslims of not only Arakan but also throughout country.
Furthermore, the Article 3 of the Myanmar Citizenship Law 1982, this is against the object and purposes of the Nu-Atlee Agreement. The object and the purpose of the Nu-Atlee Agreement should be understood to achieve the decolonization of Burma that is to realize the right to self-determination of the all peoples living in Burma within the territorial frontiers accepted by the concept of uti possidetis at the date of the agreement. Uti possidentis is a principle in international law that territory and other property remains with its possessor at the end of conflict, unless otherwise provided for by treaty; if such treaty does. All the articles of the Nu-Atlee Agreement should be interpreted to reflect the goals of the right to self-determination without any acceptation of the peoples living in Myanmar. Peoples of Myanmar used their right of self-determination under the erga omnes provisions of the UN Charter on decolonization by the Nu-Atlee Agreement. Erga omnes is a Latin phrase which means “towards all” or “toward everyone”. In legal terminology, erga omnes rights or obligation are owed toward all.
Thus, Myanmar Citizenship Law 1982 was most controversial, vague, randomly interpreted and arbitrarily applied. There is no reason for reform or amend or alter or modify any article or clause of this law. And as this law was apply only under the 2008 constitution and 2008 constitution was abolished then this law is already dead with it.
The Rohingya and their Collective Rights
The National Government (NUG) of Myanmar has issued a new ‘Policy Position on the Rohingya in Rakhine State’, acknowledging the rights of Rohingya people and atrocity crimes they faced in Myanmar on June 3, 2021. The statement represents a monumental shift from the persecution of the Rohingya by the military junta as well as previous governments, which routinely denied the existence of the Rohingya as well as evidence of mass atrocity crimes they suffered.
The NUG committed to “abolishing” the National Verification Card process, which is coercive and requires Rohingya to identify as foreigners. The NUG further committed to ensuring citizenship rights based “on birth in Myanmar or birth anywhere as a child of Myanmar citizens,” which would effectively restore or grant full citizenship rights of all Rohingya people and others.
The NUG ensured that everyone in the Union has full enjoyment of fundamental human rights. All ethnic groups who are native to the Union have full enjoyment of individual rights held by individual people and collective rights held by ethnic groups. All citizens who swear allegiance to the Union regardless of their ethnic origins are considered to have full enjoyment of citizens’ rights. The National Unity Government will not tolerate any form of discrimination.
However, in the whole statement, the NUG did not mention the Rohingya as an ethnic or native or indigenous people. The NUG only stated that, they will abolish the process of issuing National Verification Cards, a process that the military has used against Rohingyas and other ethnic groups coercively and with human rights violations. The Rohingyas are entitled to citizenship by laws that will accord with fundamental human rights norms and democratic federal principles. That’s mean the Rohingyas will not entitled for their collective rights.
The Rohingya people strongly believe that in order to establish a stable, peaceful and prosperous nation, the process of rebuilding the Union must be based on a federal democratic process. They also believe that all political and democratic processes in Burma should be all-inclusive, and the Rohingya should be part of it. They think that the individual right is not enough for them; they need their collective rights as a people, as an ethnic group.
The Rohingyas, firmly believe that:
- The Rohingyas are an indigenous people characterized by objective criteria, such as historical continuity, and subjective factors including self-identification, which need to define an indigenous people, and entitled to have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. Being indigenous peoples, they have the right to maintain and strengthen their distinct political, economic, social and cultural characteristics, as well as their legal systems, while retaining their rights to participate fully, if they so choose, in the political, economic, social and cultural life of State. They have not only the right to a nationality but also have the right to their lands, territories and resources, which derive from their political, economic and social structures and from their cultures, spirituals traditions, histories and philosophies.
- The Rohingyas are much more than a national minority. They are a nation with a population of about 4 million (both home and abroad), having a supporting history, separate culture, civilization, language and literature, historically settled territory and reasonable size of population and area – they consider themselves distinct from other sectors of the society. They are determined not only to preserve and develop their ancestral history and their ethnic identity, but also to transmit to future generations as the basis of their continued existence as people, in accordance with their own cultural pattern, social institution and legal system.
- They think that the individual right is not enough for them; they need their collective rights as a people, as an ethnic group, as a nationality who speak different language, who practice different culture, who worship different religion and who also has different historical background and, above all, all of them have clearly defined territorial homelands and nations since time immemorial.
- They want to rule their homeland by themselves.
- They have to find a political and legal system which will allow them to rule their respective homeland by themselves, and at same time living peacefully together with others who practice different religions and cultures and speak different languages. In other words, they have to find a political system which can combine and balance between “self-rule” for different ethnic groups and “shared-rule” for all the peoples in the Union of Burma.
The ethnic Rohingya is one of the many nationalities of the union of Burma. They are fighting for their very survival as a people. They are struggling for their “Rights of self-determination”: which will guarantee their collective rights; the right to rule their homeland by themselves, the right to practice their religious teaching and culture freely, the right to teach, learn and promote their language freely, and the right to up-hold their identity without fear and live peacefully together with others.
They, therefore, claims that the ultimate goal of their struggle is to establish a genuine Federal State of Burma, which will guarantee democratic rights for all citizens, political equality for all nationalities and the rights of self-determination for all member states of the Union including the ethnic Rohingya.