The Principle of Non-Discrimination
The most important principle of the CRC is set forth in Article 2 which provides that state parties "shall respect and ensure the rights set forth in the present convention of each child within their jurisdiction, without discrimination of any kind, irrespective of the child's or his or her parents or legal guardian's race, color, sex, language, religion, political or other opinions, national, ethnic or social origin, property, disability, birth or other status." Thus, unlike other international instruments, the CRC not only calls for non-discrimination among citizens of a country but also commits state parties to ensure that the rights of all children residing in their territory are protected.
In Burma, despite the frequent reference in the Child Law to "every child," children are discriminated against in the law and in practice on the grounds of citizenship, ethnicity, and religious beliefs.
Discrimination on the Basis of Citizenship and Between Classes of Citizens
To begin with, the Child Law (1993) does not apply to all children residing in Burma because it is subject to other existing laws, for example, the Burma Citizenship Law (1982) and the Socialist Constitution of 1974. Thus, foreigners residing in Burma do not have the right to the same services and benefits under the Child Law as Burmese nationals. According to Section 154(c) of Burma's 1974 constitution, it is only children born of citizens who should enjoy equal rights.
There is further discrimination even among "citizens." The Child Law in Article 10 states that "every child shall have the right to citizenship in accordance with the provisions of the existing law." The notable existing law is the 1982 Citizenship Law, which designates three categories of citizens: (1) full citizens (2) associate citizens and (3) naturalized citizens.
In order to be a full citizen of the country, one must be able to produce evidence of the birthplace and nationality of one's ancestors prior to the first British annexation in 1823. This includes nationals from the Kachin, Karenni (Kayah), Karen, Chin, Mon, Rakhine and Shan ethnic groups, or any other ethnic groups which "have settled in the territories included within the State" prior to 1823. Failing this, one is classified as an associate citizen if only one (or more) post-1823 ancestors was a citizen of another county. No other criteria are stipulated. A naturalized citizen is one who has a parent who was a full citizen and one who was an associate citizen. 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.
It is explicitly stated in the law that the three levels of citizenship entitle the holder to different rights, although there are many rights not mentioned in the law which also pertain to citizenship even if they are not always applied. Among other things, associate citizens cannot own land or fixed property; they cannot train to be doctors or engineers (until recent times these were the most sought-after careers in Burma, as qualification enabled the person to leave the country); they cannot be tuition (private) teachers; they cannot work for foreign firms, U.N. agencies or foreign embassies; and they cannot stand for any elected office. Lack of these basic rights has not prevented some people attaining high positions, most notably the foreign minister, U Ohn Gyaw (an associate citizen), but they are the exception which proves the rule.
Every person in Burma must carry at all times his or her identity card. The ID card must be produced in order to obtain a wide range of services and the right to vote, to purchase tickets to travel internally, to stay in hostels or with friends and family outside one's ward of residence, to receive health and educational services and so on. ID cards are also routinely demanded for checking by police and army personnel. Foreigners residing in Burma for more than three months have Foreign Registration Certificates which they must also carry at all times. The ID cards were changed in 1990/91 to a new format, which includes not only the name, address and photo of the holder, but also his or her ethnic origin and religion. From this, anyone checking the card can know what class of citizen the holder is.
Many members of Burma's ethnic minorities who are entitled under the Citizenship Law to be full citizens have no identity cards, especially those who live in areas which were not under government control for long periods. Access to written records, the difficulty of traveling to government-controlled areas for registration, and a general unwillingness of the government to register such people make the process of proving citizenship immensely difficult. Following cease-fire agreements with the ethnic armies, the government has sometimes announced that identity cards will be offered to the families and children of those living within the ethnically controlled areas. For example, in January 1996 it was announced that the SLORC would issue identity cards to residents of the drug baron Khun Sa's base at Homong in Shan state. In October 1996 however, Human Rights Watch/Asia interviewed several former soldiers from Khun Sa's army in Thailand and was told that the ID cards they were given were only temporary and would not been replaced by the official pink cards. Lahu villagers interviewed at the same time told Human Rights Watch/Asia that despite repeated requests, they had not been able to change their old cards for the new cards, eventhough the Lahu have had a cease-fire agreement with the government since 1989. Without these cards, they cannot travel freely within Burma or vote, and their children cannot attend high school or university.
For the Rohingya Muslims from Arakan state, becoming a registered citizen is almost impossible. The situation is even worse for their children born in refugee camps in Bangladesh. As foreigners, they experience discrimination in many ways.
Between November 1991 and March 1992, 250,000 Muslims fled Arakan State to seek refuge in neighboring Bangladesh. They cited gross abuses by the Burmese army, in what appeared to be a concerted effort to expel all Muslims from the area. When Human Rights Watch/Asia conducted interviews in the refugee camps in 1992, we found that while some possessed identity cards from the 1950s and 1960s, none had received new cards under the 1982 law. Indeed, many analysts reported at the time that the 1982 law was specifically designed to prevent Rohingyas being recognized as citizens, as the majority of them settled in Burma during the British colonial occupation, that is, after 1823.14
By December 1996, only 30,000 refugees remained in Bangladesh, but the citizenship rights of those who have returned, under a UNHCR-sponsored program, remains uncertain. On return to Burma, the refugees are given a card which identifies than as returnees and on production of this card they can claim their resettlement package. However, to our knowledge, not one returnee has yet received a new identity card as any form of citizen, and the government still insists in public meetings that most of the returnees are in fact Bangladesh citizens who came to Burma for seasonal work. Human Rights Watch/Asia is particularly concerned by reports that many of the remaining refugees are women and their children who were born in the refugee camps, whom the government will not recognize as being entitled to citizenship.
Without being considered citizens, the Rohingyas will continue to have their rights violated. Rohingya children will not be able to travel, attend high schools and universities, or own property. In his report of February 1996, the Special Rapporteur to Burma said that according to Lt. Gen. Mya Thinn, the minister for home affairs,
The Muslim population of Rakhine State were [sic] not recognized as citizens of Myanmar under the existing naturalization regulations and they were not even registered as so-called foreign residents. Consequently, the Minister added, their status situation did not permit them to travel in the country....They are also not allowed to serve in the State positions and are barred from attending higher educational institutions.15
Therefore, there is a need to harmonize the Child Law, the constitution and the Citizenship Act of 1982 to protect all children within the jurisdiction of Burma against de jure discrimination. Current legislation and practice contravene not only the CRC but also the 1961 Convention on the Abolition of Statelessness. Burma has been repeatedly urged by the special rapporteur and in numerous resolutions of the Commission on Human Rights to revise the 1982 Act.
Discrimination Against Ethnic Minorities
We have already seen that ethnic minorities have difficulty in gaining their right to citizenship, but children from ethnic minority groups are also discriminated against in other ways. Minority rights are not adequately protected even under the 1974 constitution. According to the constitution, Article 152, "Burmese is the common language, languages of the other national races may also be taught." The word "may" and "shall" mean different things in legislative drafting. Whereas "shall" connotes a mandatory obligation, "may" suggests probability of observance; there is no compulsion to observe in all situations, and in practice this is what obtains. The Child Law is more helpful on this matter. Article 21 states that "Every child shall have the right to maintain his or her own cherished language, literature and culture, to profess his or her own religion and to follow his or her own traditions and customs."
In the three years since the Child Law was promulgated there has been some progress towards enabling children to study in their own language, but there has also been some major setbacks. Prior to 1993, ethnic minority languages were banned from the school curriculum, no magazines could be published in any languages other than Burmese and English, and in 1988 two Mon monks who had completed a scholastic exam using Mon script were sentenced to ten-year prison terms. Now, there are some magazines available in the Shan, Rakhine and Karen languages, and U.N. agencies and NGOs working in Burma have been permitted to publish information leaflets in ethnic languages.
However, the fact remains that the right to be protected against discrimination is still governed more by political expediency than by formal guarantees of rights. Equally important is the lack of central government control over the orders of local and regional military commanders, whose every whim becomes policy in the areas under their control. For example, in Mon state where the New Mon State Party (NMSP) came to a cease-fire agreement with the government in March 1995, the NMSP were at first permitted to continue teaching in the Mon language in all of the schools they administered. There was also an agreement that the SLORC would build more schools in the Mon area, and that in primary schools, Mon language could be taught. In early 1996, however, there were disagreements between the Mon and the SLORC concerning the evacuation of territory which the Mon had previously controlled. Soon after, a new order was sent out by the regional commander prohibiting the teaching of Mon language in any schools which receive government assistance, though the teachers could, should they choose, use the school buildings outside of school hours to teach Mon. By July 1996, this provision was also revoked, and no school buildings were to be used to teach Mon.
Discrimination Against Religious Minorities
It is very important to children's development that they and their parents be permitted the right to freely worship and profess their religious faith. This is recognized in Article 14 of the Convention of the Rights of the Child and in Section 21 of Burma's Child Law. Despite the new law, however, there have been indications of an increasingly intolerant attitude by the government towards the ethnic and religious minorities (and the two groups usually coincide). Without going so far as to designate Buddhism the state religion, the SLORC has enacted a clear policy to promote Buddhism in Burma, both in order to enhance the legitimacy of the military government and to forge "national solidarity." Thus, while Buddhist monastic schools have been greatly encouraged, especially in ethnic minority areas in recent years, there are no Christian middle or high schools, and in many areas unofficial madrasahs (Muslim schools) have either been closed or prayers within the schools have been prohibited.
In response to the 1993 report of the Special Rapporteur on Religious Intolerance, the SLORC claimed that it "is prudent and careful in taking measures so that there is no discrimination against other religious faiths...For this reason, a separate Ministry of Religious Affairs...was established in 1992." The statement did not add that the religious affairs ministry is located in the grounds of the World Peace Pagoda (Kaba Aye) in Rangoon, a compound which also serves as the home of the most senior committee of Buddhist monks, the Sangha Maha Nayaka Committee. Nor did he mention that one of the main functions of the Ministry of Religious Affairs is the propagation of Buddhism, both nationally and internationally, through the publication of Buddhist scriptures and the establishment of Buddhist missionary schools in ethnic minority areas.
The SLORC policy of promoting Buddhism as an essential facet of being a "true" Burman has led to discrimination against non-Buddhist children on ethnic and religious grounds and in some cases to forced conversions. In northern Sagaing division in December 1994, the Naga people of Konkailon village (who are predominantly Christian) were ordered to demolish their church and construct a Buddhist monastery in its place. The following month, villagers from Konkailon, Kuki, Nurnitmumpi and Pansat were forced to accept sila (Buddhist vows) from monks who had been brought in by the army to occupy church buildings. In the Chin state, also a predominantly Christian area, Human Rights Watch/Asia received reports that in May 1994 government authorities offered six villagers the chance to send their children-all of whom were under fourteen years of age-to boarding schools in Rangoon, where educational standards are much higher. Months later, when the parents requested permission to visit their children, they discovered that the children had been taken to a Buddhist monastery where they had been forced to convert. None of the children were permitted to return home. While we have not been able to confirm either of these reports, we remain concerned that children have been taken away from their parents under false pretenses and denied their right to freely practice the religion of their choice.
Muslim children have also been denied the right to freedom of religion. Rakhine Muslims cited religious persecution as one of the factors which drove them to seek refuge in Bangladesh in 1991 and 1992. In northern Arakan state, mosques were destroyed or otherwise closed down, and Muslim children were not permitted to attend madrasahs. More recently, in September 1996 a 600-year-old mosque in the old capital, Mrauk-Oo, was demolished by the army despite appeals by the local Muslim community. In October 1996 Human Rights Watch obtained anti-Muslim leaflets which had been distributed in Rangoon warning all Burmans to be especially vigilant to the "threat" of Muslim dominance. The leaflets told "patriotic Burmese" not to eat at Muslim restaurants, buy from Muslim shops, or employ Muslim workers. The leaflets were not signed by any organization, but Muslims believed they were designed to stir up religious and racial tension to distract from the student demonstrations which had begun in the same month. Similar tactics were employed in 1988.16
14 For a full discussion of the Citizenship Law and related legislation, see Human Rights Watch/Asia, "Burma-The Rohingya Muslims: Ending a Cycle of Exodus?," A Human Rights Watch Report, vol. 8, no.9 (c) (September 1996).
15 Quoted by the Special Rapporteur to Burma, Professor Yokota, in his "Report on the Situation of Human Rights in Myanmar, prepared by Mr. Yozo Yokota, Special Rapporteur of the Commission on Human Rights, in accordance with Commission resolution 1995/72," (Geneva: U.N. ECOSOC, E/CN.4/1996/65, February 5, 1996).
16 See Bertil Lintner, Outrage: Burma's Struggle for Democracy (Bangkok: White Lotus Press, 1990).