A Citizenship Law that was most controversial and vague
May 16, 2016
“The 1982 Burma Citizenship Law was not fair” Daw Aung San Suu Kyi
Daw Khin Saw Wai, a Pyithu Hluttaw representative from Rathedaung township, submitted a proposal on May 6 calling on the government to address the citizenship status of Muslims living mainly in Rakhine State whom she referred to as “Bengali”, but who self-identify as Rohingya. According to her, “Bengalis, who are not a national race of Myanmar and come from the Myanmar-Bangladesh area, have illegally entered the country and that causes unrests in the state.” The MP added that she thought it was time to re-start the citizenship scrutinizing process that has been on hiatus since the former government revoked temporary white-cards.
Daw Khin Saw Wai called it “sad” that, despite the enactment of the 1982 Citizenship Law, the citizenship issue has remained unaddressed.
“I firmly believe that we can identify who are fake or real [citizens] if we start inspection under the 1982 Citizenship Law. Otherwise, it allows all illegal residents to move in and out of the country without restriction,” she said.
What is 1982 Citizenship Law?
The Chairman of the Council of State, on 15 October 1982, promulgated a citizenship law as Pyithu Hluttaw law No. 4/1982, which 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 is decided based on prescriptions of laws, not on racial and religions.
In other words we can say that, under the 1982 Citizenship Law there are two types of citizenship: (1) Native Citizenship and (2) Legal Citizenship.
(1) Native Citizens: Nationals such as Kachin, Kayah, Kayin, Chin, Bamar, Mon, Rakhine, Shan & other ethnic groups who have been settled in the territory of Myanmar since 1823 and their descendants. No one can revoke their citizenship without a strong reason. A "Certificate of citizenship" is issued to them.
(2) Legal Citizen: Citizens who are not nationals but qualify to become a Myanmar citizen according to the legal framework. The 3rd generation of residents who arrived before 1948 will be issued “Certificate of Citizenship” automatically even though they are not ‘nationals’.
Within the legal citizenship category there are of two sub-types:
(2.1) Associate Citizens: People who became Myanmar citizen according to the 1948 citizenship law. A “Certificate of Associate Citizenship” is issued for this category.
(2.2) Naturalized Citizens: People who had been residing in Myanmar before independence (4th Jan, 1948) and their descendents who have strong supporting evidence and documents that they were eligible for citizenship under the 1948 citizenship law. A “Certificate of Naturalized Citizenship” is issued for this category.
According to this law, only a person whose parents have had their naturalization of citizenship or a certificate of citizenship or a certificate of guest citizenship can be a citizen. So, apart from these criteria, no one can be a citizen. The 3rd generation of residents who do not have these qualifications cannot be a citizen either.
Why 1982 Citizenship Law?
Arakan which already is one of the poorest provinces of the country became bad to worse after the military coup. The economical life of the people is intolerable and a large number of Arakanese peoples, Buddhists and Muslim a likes, migrated into Burma Proper such as Rangoon and parts of Lower Burma. When Ne Win Saw a large number of Muslims of Arakan scattered bout in Rangoon and Delta area he imposed a law in 1964, which restricted the movement of Muslims of Arakan especially prohibiting the movement out of Akyab District towards east. Thus, the Muslims of Arakan were put into a sort of imprisonment since 1964.
The authorities, however, could not stop all migration effectively as all routes could not be closed. The late 60s saw a sharp decline in economy; bring about large-scale smuggling across the Burma-Thai border. As Arakan became the poorest province in the country, the Arakanese were forced to leave for the new green pastures which were rising in eastern Burma such as the Shan and Karen States and Moulmein area.
In 1973 census the authorities again found that Arakanese Muslims had spread up to these eastern borders and other commercially mobile areas such as Mandalay, Pegu, Prome, Maolmein, Bassein, etc. Ne Win did not want that. The Muslims should be in Arakan only so that the Arakanes Buddhists and Arakanese Muslims could use against each other. This was the best way to keep the Arakanese national liberation movement of the Arakanese checked.
But the scenario was not like that, since 1967 rice crisis where Muslims and Buddhist jointly participated in the anti-junta protest march and lost both of their people’s lives, the Arakanese came to realize that they need to forge unity between Buddhists and Muslims to oppose the military regime together. With this vision many Muslims joined the Arakan National Organization led by Bo Gri Kra Hla Aung during 1967. Similarly the Rohingyas librations groups also made alliance with the Arakan National Liberation Party led by U Maung Sein Nyunt.
Such an alliance alarmed the Rangoon regime. Meanwhile the emergence of the Arakan Independence Organization/Army and Arakan Libration Party under the collaboration with KIO and KNU receptively added much worry to the junta. In 1977 the Ne Win forces wiped out the main army of AIO and ALP, killing their leaders San Kyaw Tun and Khaing Moe Lung respectively along with about 300 men including Muslims.
This event spread a cloud of misery over the Arakanese population. At the same time, a coup attempt by the Arakanese was foiled. This coup had been planned by Aung Sein Tha, Htin Lin and Kyaw Hla (a) Mustafa Kamal. The Burmese Intelligence openly implicated the Military Attaché in the Bangladesh Embassy in Rangoon in the plot that was expelled and declared persona non grata.
General Ne win get a chance to teach a lesson not only to the Rohingya but also Bangladesh Government. He launched an anti-Rohingya military operation in the Code name of King Dragon in the guise of checking illegal immigrant in 1978. About 300,000 Rohingyas had sought refuge across the border in southern Bangladesh amidst widespread reports of army brutality, rape and murder. Under international pressure, Burma agreed to "take back" the Rohingyas in the repatriation agreement with Bangladesh.
However, as the Plan-A of Ne Win was not success then he started with his Plan-B that is a legal instrument which may made all the Rohingya illegal status. Then he tried to draw a citizenship law which later known as the citizenship law 1982.
Ne Win completed this law with the help of Dr. Maung Maung before October 1982. This law was approved and passed by the third session of the Third Pyithu Hluttaw and promulgated by the Chairman of the Council of State, on 15 October 1982. As Ne Win became only Party head since 1981, U San Yu was the then Chairman of the State Council and President.
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.”
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.
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, before that election, 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 year to 18 year, Chapter-2 for at the age of 18 year and Chapter-3 for at the age of 30 year and 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.
What kind of Law it is?
1. “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 any body or signed by any one.
2. 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.
3. 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.
4. This law, which was promulgated o 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.
5. This law was most controversial, vague, randomly interpreted and arbitrarily applied.
6. Although the 1982 Citizenship Law was enacted in 1982, the authorities never show their serious concern to implement it during Ne Win times or SLORC and SPDC period. However, after coming to the power by the present government became very serious on this matter.
7. They try to implement the Citizenship Law only on the Rohingya. Although, there are more than a half million of Bangladeshi Buddhist who have entered in Arakan, during post independent day, they government did nothing against them. There are more than 20 million Chinese legally and illegally entered into Burma since SLORC regime. They are super class citizens of the country. They can do and can’t do anything they want. The whole Burma is now their father-in-law’s home.
8. U Khin Yi, the Union Minister for Immigration and Population Affairs, in his speech in Parliament on 18 June 2013, he mentioned that, “Even though they are Kachin, Kayah, Kayin, Chin, Burma, Mon, Rakhine and Shan, they are not national races if they permanently live in other countries, not in Myanmar. Same national races who have settled in Myanmar after 1824 are not indigenous races. So they are not citizens by birth. The law also states that national races who acquire citizenship of other countries and persons born of parents, both of whom are those foreign citizens cannot become Myanmar citizens”. But he and his government do not make any concern to these Chinese and Bangladeshi Buddhists issue. Their only interest is to wipe out the identity and existence of Rohingya from the soil of Arakan.