Legal Postmortem on Denial of Rohingya Citizenship

The most critical issue remains today is the legal status of the Rohingya in Burma and the implications that it carries in practice. While they have been permitted to reside in Burma, most Rohingya are considered by the Burmese authorities to be “resident foreigners,” not citizens. This lack of full citizenship rights means that the Rohingya are subject to other abuses, including restrictions on their freedom of movement, discriminatory limitations on access to education, and arbitrary confiscation of property. Denial of citizenship, and of the rights that go with it, inevitably pose serious obstacles to the achievement of a durable solution to the refugee flows.
The 1982 Burma Citizenship Law, promulgated not long after the mass return of Rohingya who fled in 1978, distinguishes between three categories of citizenship: citizenship, associate citizenship, and naturalized citizenship. A person is issued a color-coded Citizenship Scrutiny Card consistent with his or her citizenship status – pink, blue, and green respectively. Citizens are persons who belong to one of the national races (Kachin, Kayah (Karenni), Karen, Chin, Burman, Mon, Rakhine, Shan, Kaman, or Zerbadee) or whose ancestors settled in the country before 1823, the beginning of British occupation of Arakan State. If a person cannot provide evidence that his ancestors settled in Burma before 1823, he or she can be classified as an associate citizen if one grandparent, or pre-1823 ancestor, was a citizen of another country. Those persons who qualified for citizenship under the 1948 law, but who would no longer qualify under this new law, are also considered associate citizens if they had applied for citizenship in 1948. To become a naturalized citizen, a person must be able to provide “conclusive evidence” that he or his parents entered and resided in Burma prior to independence in 1948. Persons who have at least one parent who holds one of the three types of Burmese citizenship are also eligible. Beyond these two qualifications, Section 44 of the act stipulates that the person must be eighteen years old, be able to speak well one of the national languages (the Rohingya language, a dialect related to Chittagonian, is not one), be of good character, and be of sound mind.
The stipulations of the Burma Citizenship Law governing the right to one of the three types of Burmese citizenship effectively deny to the Rohingya the possibility of acquiring a nationality. Despite being able to trace Rohingya history to the eighth century, Burmese law does not recognize the ethnic minority as one of the national races. Many Rohingya families migrated to and settled in Arakan during the British colonial period which would immediately exclude them from citizenship. Even for those Rohingya whose families settled in the region before 1823, moreover, the onerous burden of proof has made it nearly impossible for all but a handful to secure citizenship. Rohingya who cannot provide “conclusive evidence” of their lineage or history of residence find themselves ineligible for any class of citizenship. And because of their formal legal status as resident foreigners, Rohingya are subject to restrictions on their freedom of movement, are denied access to higher education, and are restricted from holding public office.
Human Rights Watch has repeatedly urged the Burmese government to repeal the 1982 Citizenship Law or else amend it in accordance with therecommendations of the U.N. Special Rapporteur on the situation of human rights in Myanmar and to grant Rohingya full citizenship and accompanying rights.
UNHCR is the international intergovernmental organization which has special responsibilities for stateless persons. Designated by the United Nations General Assembly as a mediating agency under Article 11 of the 1961 Convention on the Reduction of Statelessness, UNHCR’s role was further defined by its Executive Committee Conclusion No. 78 of 1995. This confers on UNHCR the mandate to promote state accession to both the 1954 Convention relating to the Status of Stateless Persons, as well as to the aforementioned 1961 Convention, and to “promote the prevention and reduction of statelessness through the dissemination of information, and the training of staff and government officials; and to enhance cooperation with other interested organizations.”
In pursuit of this mandate, UNHCR has urged the Burmese government to review its citizenship law, including as part of its National Convention deliberations, and has offered to consider the provision of financial, technical, and legal support for government distribution of Citizenship Scrutiny Cards. But Burma’s ruling SPDC has, to date, made no progress in addressing the legal obstacles to a sustainable return of Rohingya refugees and has responded negatively to UNHCR overtures.
Provisions in the 1982 law perpetuate the Rohingya citizenship crisis by denying Burmese citizenship to children born to those considered non-citizens. In order for a child to attain Burmese citizenship, at least one parent must already hold one of the three types of Burmese citizenship. In this respect, the citizenship law conflicts with the Burmese government’s obligation under Article 7 of the U.N. Convention on the Rights of the Child, which states, “The child shall be registered immediately after birth and shall have the right to a name, the right to acquire a nationality…States Parties shall ensure implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.”

Source : A report from the Amnesty International