April 22, 2013

VII. Denial of Citizenship

The Burmese government has for many years rejected Rohingya Muslims as a recognized “national race” and effectively denied them the ability to obtain citizenship. This has facilitated human rights abuses against them, and poses a serious obstacle to achieving long-term solutions to the violence and abuse in Arakan State.

Citizenship

Human Rights Watch, UN agencies, and others have long recognized the denial of citizenship to Rohingya as a root cause of the violence in Arakan State.[326] At the core of the problem is Burma’s discriminatory 1982 Citizenship Law.

While countries have the authority to determine their own criteria for conferring citizenship, this criteria must be in conformity with a country’s international human rights obligations. Burma’s 1982 Citizenship Law and its application have effectively prevented ethnic Rohingya from obtaining Burmese citizenship, resulting in an arbitrary deprivation of citizenship in contravention of international human rights standards.[327]

OCHA and other international agencies have offered to support the government to review the 1982 Citizenship Law to bring it in line with international standards, yet the government has not availed itself of these offers.[328]

The central government’s response to the question of citizenship has recently involved a process of “citizenship scrutiny” led by the Ministry of Immigration in Pauktaw Township, where several thousand Rohingya IDPs are located. In December, a displaced Rohingya told Human Rights Watch: “The immigration department is taking the registration of the people, and on the paper where there is a space for nationality, they do not put Rohingya, they put Bengali.”[329] News reports confirmed government officers were determining the lineage of the IDPs but registering their ethnicity as “Bengali” or “Bengali/Islam.” When asked about the potential effect of this, a Burmese officer said, "We're collecting data, not making decisions on nationality."[330]

The UN and humanitarian organizations in Arakan State have identified risks associated with the government’s response to the citizenship issue. The UN’s November 2012 Rakhine Response Plan states:

In early November 2012, community members living in Pauk Taw Township informed that Government officials had commenced a nationality verification exercise. Lack of clear communication to the community on the overall objective of the verification exercise, coupled with reports of intimidation faced by the communities, might increase tensions within the community, and trigger further inter-communal violence and displacement.[331]

Burma’s 1982 Citizenship Law designates three categories of citizens: full citizens; associate citizens; and naturalized citizens. Color-coded Citizenship Scrutiny Cards are issued according to citizenship status – pink, blue, and green, respectively. Many Rohingya hold white cards, or “temporary registration cards,” which come with no citizenship rights. These national identity cards contain ethnic and religious biographical details that facilitate discrimination by local officials against Muslims and other religious and ethnic minorities.[332]

By law, full citizens are persons who belong to recognized "national races" (the eight primary races are Arakanese, Burman, Chin, Kachin, Karen, Karenni, Mon, and Shan) or those whose ancestors settled in the country before 1823, when Britain became the colonial power in the country. Under the 1948 law, individuals who could not provide evidence that their ancestors settled in Burma before 1823 could still be eligible for citizenship. But under the 1982 law, associate citizenship was only available to those who met the qualifications and had already had applied for citizenship before the 1982 law went into effect, excluding most Rohingya.

Under the 1982 law, those considered to be foreign nationals can become naturalized citizens if they can provide "conclusive evidence" that they or their 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 to become naturalized citizens. Beyond these two qualifications, the 1982 act stipulates that a person seeking to become a naturalized citizen must be at least 18 years old, able to speak one of the national languages well (the Rohingya language is not recognized as such), and be of good character, and sound mind.[333] According to the terms of the law, only full and naturalized citizens are “entitled to enjoy the rights of a citizen under the law, with the exception from time to time of the rights stipulated by the State.” All forms of citizenship, “except a citizen by birth,” may be revoked by the state.[334]

Most Rohingya lack formal documents, and even those who come from families that have lived in Burma for generations do not have any way of providing “conclusive evidence” of their lineage in Burma prior to 1948, let alone prior to 1823, denying them Burmese citizenship.[335] And although international law ensures non-citizens virtually all the rights of citizens, except for political rights such as voting, the Burmese government has long used the Rohingya’s absence of citizenship to deny them their fundamental human rights. As the UN special rapporteur on human rights in Burma has stated, the 1982 Citizenship Law “contravenes generally accepted international norms to ensure that there is no State sanctioned discrimination on the basis of religion and ethnicity.”[336]

The difficulty for Rohingya of providing “conclusive evidence” of their lineage increased in June 2012, when during the violence many Rohingya lost their documents in arson attacks or had them forcibly taken. Several Rohingya told Human Rights Watch that during the violence in June and October, local authorities or groups of Arakanese confiscated their ID cards. A Rohingya woman who survived an attack by a group of Arakanese said, “They [the attackers] brought a lot of cars and they were loading our belongings into the cars. They even took our IDs.”[337]

A Rohingya woman who was displaced from Sittwe on June 10, and beaten severely over the head by an Arakanese man with an iron rod, told Human Rights Watch: “We kept all of our documents, my family list and my ... graduation certificate, in a bag. One [Arakanese] man came in and pointed his sword at me and said, ‘Do you want to give me this or do you want to die?’ I had to give him the bag.”[338]

A Rohingya man, 42, said he feared authorities were forcibly relocating Rohingya outside Sittwe in a way that would create a paper trail identifying the displaced as “guests” in Burma. He said:

A high-ranking immigration officer came today and said he wanted a list of people who are taking shelter. He said he wanted a list so we made a list. We were given a written form to fill out, and instead of referring to displaced people, the form referred to “guest people.” We said, “We are not guests here.” The immigration officer replied, “I cannot do anything, this is from the higher authority. I just have to follow orders.”[339]

When it has suited the government’s purposes, rights are granted to the Rohingya. For example, non-citizen Rohingya in Arakan State have at times in the past been given the right to vote. Rohingya were permitted to vote and form political parties in the 1990 elections, and those holding “temporary registration cards” could vote in the 2010 elections. The vast majority of Rohingya who are registered to vote are members of the ruling Union State and Development Party (USDP), giving the government a reason to permit their vote.

Under the 1982 law, the children born to non-citizens do not obtain citizenship, perpetuating the denial of citizenship to Rohingya over generations. In order for a child to attain Burmese citizenship, at least one parent must already hold one of the three types of Burmese citizenship. Rohingya, who rarely can provide the government "conclusive evidence" of their lineage or history of residence, have children who also are without citizenship. In March 2012, the UN special rapporteur on human rights in Burma reported that “tens of thousands of children remain unregistered” as a result of the citizenship law.[340]

In 1983, following the mass repatriation of Rohingya refugees from Bangladesh in 1978, the Burmese government completed a nationwide census in which the Rohingya were not counted, further rendering them stateless through exclusion, compounding the stringencies of the 1982 law.

As noted above, many Burmese – officials and the general public – describe the Rohingya as a “fabricated” or “invented” group.[341]

Nationality

While some Rohingya trace their lineage in Burma back centuries, many Muslims families in Arakan State migrated to and settled in Arakan during the British colonial period, which under the 1982 Citizenship Law directly excludes them from full citizenship. Rohingya whose families settled in the region during the colonial period would be eligible for less-than-full citizenship but are in effect excluded because of their inability to provide conclusive evidence of their lineage. Even those Rohingya whose families settled in the region before 1823 face the onerous burden of proving this to the satisfaction of the skeptical authorities, making it nearly impossible to secure Burmese citizenship.

Ethnic Arakanese interviewed by Human Rights Watch rejected the suggestion that the Rohingya should obtain citizenship as a distinct ethnic group. Many said the international community and, in particular, the international media are biased in favor of the Rohingya. U Hla Soe, the general secretary of the Arakanese-dominated political party RNDP, told Human Rights Watch:

We think that pro-Rohingya Islamic radicals have penetrated the exiled media, so the voice of Rohingya becomes louder and louder. ... They are demanding to be an ethnic nationality, and this we don’t accept. The citizenship issue is very delicate. We hope that exiled radical forces in the West will stop the instigation, because these Muslim people are ignorant people. It is very easy to stimulate and instigate them.[342]

An Arakanese journalist told Human Rights Watch:

Many [international] journalists want to defend the Rohingya because they are losing, because they are the poorest people, the persecuted people. I don’t blame them but they need to understand the whole picture. When only one side of the story is told, the Arakanese people are automatically regarded as cruel, and that is a problem.[343]

The “whole picture” he referred to is the fear among Arakanese of losing their cultural and ethnic identity to the Muslim population in Arakan State – it is an existential fear involving race, religion, and economics.

An Arakanese man in Mrauk-U Township said:

It is very, very difficult to live with the Muslim people in Arakan State. ... They want to occupy the land. We were not living together before 1824. The British controlled the Arakanese land in 1824 and they brought the Bengali people to Arakan State to work the rice paddy fields. ... The Bengali people are always thinking to start a problem. Other countries and media will be interested about the Rohingya, and they know that.[344]

The National Census

The government of Burma and the United Nations Population Fund (UNFPA) has been working on a national census, scheduled for completion in 2014. While the census is not a response to the situation in Arakan State, it will factor heavily into development priorities and will ultimately shape the government’s response to the political and economic situation in the state. Burma’s last census in 1983 excluded the Rohingya.[345] There are concerns the Rohingya will again be excluded from the census: in July 2012, Burma’s immigration minister, Khin Yi, announced the Rohingya would not be included in the new census.[346]

In August, Dr. Babatunde Osotimehin, the executive director of UNFPA, stressed the importance of following UN international standards for conducting the census and committed UNFPA to including all population groups in the count.[347] The UNFPA intends to establish an advisory committee comprising representatives from Burma’s ethnic nationalities to address concerns with the process; teachers from ethnic groups will be recruited to conduct the census as “enumerators” in their communities.[348] It is unclear whether Rohingya educators in Arakan State will be hired to conduct an objective census and whether Rohingya representatives will be appointed to the advisory committee.

[326] UNOCHA’s Rakhine Response Plan, http://reliefweb.int/sites/reliefweb.int/files/resources/Revised%20Rakhine%20Response%20Plan%20%28amended%29.pdf, p.27, Reflecting input from humanitarian actors working in Arakan State, notes “the longstanding problem of lack of any citizenship of around 800,000 people in Rakhine State,” – the 800,000 being the Rohingya.

[327] See Universal Declaration of Human Rights, art. 15(2) (“No one shall be arbitrarily deprived of his nationality”); International Convention on the Elimination of all Forms of Racial Discrimination, art. 5(d)(iii) (governments shall “undertake ... to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in ... the right to nationality”); International Covenant on Civil and Political Rights, art. 26 (“The law shall ... guarantee to all persons equal and effective protection against discrimination on any ground such as race,… ”).

[328] Regarding UN offers of assistance to the government of Burma to review the 1982 Citizenship Law, see UNOCHA, Rakhine Response Plan, http://reliefweb.int/sites/reliefweb.int/files/resources/Revised%20Rakhine%20Response%20Plan%20%28amended%29.pdf, p. 29.

[329] Human Rights Watch interview with M.P., displacement site, Arakan State, December 2012.

[330] Todd Pitman, “AP Exclusive: Myanmar Verifying Muslim Citizenship,” Associated Press, November 30, 2012, http://news.yahoo.com/ap-exclusive-myanmar-verifying-muslim-citizenship-072224996.html (accessed December 9, 2012).

[331] UNOCHA, Rakhine Response Plan, http://reliefweb.int/sites/reliefweb.int/files/resources/Revised%20Rakhine%20Response%20Plan%20%28amended%29.pdf, p. 28.

[332] The UN Committee on the Rights of the Child has recommended to the government of Burma: “In the field of the right to citizenship, the Committee is of the view that the State party should, in the light of articles 2 (non-discrimination) and 3 (best interests of the child), abolish the categorization of citizens, as well as the mention on the national identity card of the religion and the ethnic origin of citizens, including children. In the view of the Committee, all possibility of stigmatization and denial of the rights recognized by the Convention should be avoided.” “Concluding observations of the Committee on the Rights of the Child: Myanmar,” UN Committee on the Rights of the Child, January 24, 1997. CRC/C/15/Add.69, http://www.unhchr.ch/tbs/doc.nsf/%28Symbol%29/1f80c171544388888025644b003cd574?Opendocument (accessed April 10, 2013); The committee similarly called for the law to be repealed in November 2008. See “Human rights situations that require the council’s attention,” UN General Assembly, A/HRC/10/19, March 11, 2009, http://www2.ohchr.org/english/bodies/hrcouncil/docs/10session/A.HRC.10.19.pdf (accessed April 10, 2013).

[333]Sections 42 to 44 of the 1982 Citizenship Law on the qualifications required for Burmese naturalized citizenship read:

42) Persons who have entered and resided in the State prior to 4th January, 1948, and their children born within the State may, if they have not yet applied under the Union Citizenship Act, 1948, apply for naturalized citizenship to the Central Body, furnishing conclusive evidence. 43) The following persons, born in or outside the State, from the date this Law comes into force, may also apply for naturalized citizenship: (a) persons born of parents one of whom is a citizen and the other a foreigner; (b) persons born of parents, one of whom is an associate citizen and the other a naturalized citizen; persons born of parents, one of whom is an associate citizen and the other a foreigner; (d) persons born of parents, both of whom are naturalized citizens; (e) persons born of parents, one of whom is a naturalized citizen and the other a foreigner. 44) 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; be able to speak well one of the national languages; (d) be of good character; (e) be of sound mind.

http://www.unhcr.org/refworld/docid/3ae6b4f71b.html (accessed April 10, 2013).

[334] “Burma Citizenship Law,” Chapter II, Section 8(b), October 15, 1982, http://www.unhcr.org/refworld/docid/3ae6b4f71b.html (accessed April 8, 2013).

[335] Ibid.

[336]Progress report of the Special Rapporteur on the situation of human rights in Myanmar,” Tomas Ojea Quintana, A/HRC/13/48, March 10, 2010, http://www2.ohchr.org/english/bodies/hrcouncil/docs/13session/A.HRC.13.48_en.pdf (accessed April 10, 2013).

[337] Human Rights Watch interview with Z.H., Sittwe, Arakan State, June 2012.

[338] Human Rights Watch interview with K.K., displacement site, Arakan State, November 2012.

[339] Human Rights Watch interview with Z.I., Sittwe, Arakan State, June 2012.

[340] UN Human Rights Council, “Progress Report of the Special Rapporteur on the situation of human rights in Myanmar,” Tomas Ojea Quintana, A/HRC/19/67, March 7, 2012, http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session19/A-HRC-19-67_en.pdf (accessed April 10, 2013).

[341] Burmese officials and members of Burmese society regularly claim the Rohingya name is merely a political construct recently invoked to create an ethnic identity that does not exist. See also Human Rights Watch interviews with Arakanese, Sittwe, Arakan State, June-July 2012 and November 2012; Al Jazeera, “The Hidden Genocide,” documentary film, December 9, 2012; U Shw Zan and Dr. Aye Chan, Influx Viruses: The Illegal Muslims in Arakan (New York: Arakanese of the United States, 2005).

[342] Human Rights Watch interview with U Hla Soe, Sittwe, Arakan State, June 2012.

[343] Human Rights Watch interview with B.D., Sittwe, Arakan State, June 2012.

[344] Human Rights Watch interview with L.N., Mrauk-U Township, November 2012.

[345] The last census was conducted in 1983 and widely viewed as having neglected certain segments of the population, particularly ethnic nationalities living in conflict areas.

[346] David Stout, “Minister Rejects Calls for International Investigation in Arakan,” Democratic Voice of Burma, July 31, 2012, http://www.dvb.no/news/rohingya-not-to-be-included-in-census-minister/23097 (accessed February 2, 2013).

[347] “UNFPA Meets with Myanmar Leaders, including Aung San Suu Kyi, and Young People,” United Nations Population Fund, August 27, 2012, http://www.unfpa.org/public/lang/en/home/news/pid/11575 (accessed February 2, 2013).

[348] See Ma Ning, “Census in Myanmar Not Optional: UN,” The Myanmar Times, December 21, 2012, http://mmtimes.com/index.php/national-news/3620-census-in-myanmar-not-optional-un.html (accessed February 2, 2013).