Rohingya: a people without nationality

Aman Ullah

RB Article

July 23, 2014

Nationality pertains to a person’s region of birth or origin. Nationality is also defined as the relation of a person with his state of origin. Nationality gives a person protection of the nation where he or she was born. It is a fundamental human right that facilitates the ability to exercise all the other rights.

The right to nationality without arbitrary deprivation is now recognized as a basic human right under international law. 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.” While issues of nationality are primarily within each state’s jurisdiction, a state’s laws must be in accord with general principles of international law. 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.” 

Nationality, according to the International Court of Justice, is “a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments.” The court first articulated criteria for defining an individual’s nationality in the pivotal Nottebohm Case, which gives. “preference to the real and effective nationality, that which accord[s] with the facts, that based on stronger factual ties between the person concerned and one of these States whose nationality is involved.” A ‘genuine and effective link,’ as the ‘real and effective nationality’ has been termed, which is determined by considering factors laid out in Nottebohm, including the “habitual residence of the individual concerned but also the centre of interests, his family ties, his participation in family life, attachment shown by him for a given country and inculcated in his children, etc.”

Nearly all Rohingya or their parents and at least their four generations were born in Arakan, Burma, have resided there, and have family there, all factors that establish a genuine and effective link to Burma. They are living in Arakan, Burma 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.

They are a group of people who believes that they are similar; because of this similarity, they believe that their fates are intertwined. That is they have a common identity and a belief in a shared future through collective action. They have acted together in the past, they are acting together in the present, and they will act together in the future. As a collective agent, they are participants in a common venture. Through common action, they want to create a common future, where their people can live out their distinctive life ways in freedom, safety and dignity. As a nation they are jointly committed to create a space for people like them.

Mr. M.A. Gaffer, from Buthidaung, was a member of 1947 Constitutional Assembly, an Upper House MP from 1951 to 1960 and also a Parliamentary Secretary in Health Ministry. 

He wrote, in his Memorandum, which was presented to the Regional Autonomy Enquiry Commission dated the 24th May, 1949, that “We the Rohingyas of Arakan are a nation. We maintain and hold that Rohingyas and Arakanse are two major nations in Arakan. We are a nation of nearly nine lakhs more than enough population for a nation; and what is more we are a nation according to any definition of a nation with our own distinctive culture and civilization, language and literature, art and architecture, names and nomenclature, sense of value and proportion, legal laws and moral codes, customs and calendar, history and traditions aptitude and ambitions, in short, we have our distinctive outlook on life and of life. By all canons of international law the Rohingyas are a nation in Arakan." 

Under any cannons of international law and human civilization the Rohingyas are much more than a national minority. They are a nation with a population of more than 3 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 share a public culture different from the public culture of those around them. They are determined not only to preserve and develop their public culture, 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. 

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. Not only have they had the right to a nationality but also the rights to their lands, territories and resources, which derive from their political, economic and social structures and from their cultures, spirituals traditions, histories and philosophies. 

Thus, during the colonial rule the British recognized the separate identity of the Rohingyas and declared north Arakan as the Muslim Region. Again there are instances that Prime Minister U Nu, Prime Minister U Ba Swe, other ministers and high- ranking civil and military official, stated that the Rohingyas people like the Shan, Kachin, Karen, Kaya, Mon and Rakhine. They have the same rights and privileges as the other nationals of Burma regardless of their religious beliefs or ethnic background.

Under the article 3 of Aung San-Atlee Treaty (1947) and the First Schedule to the Burma Independence Act, 1947, the Rohingyas are the citizens of the Union of Burma. They are also one of the indigenous races of Burma under section (I) (II) and (III) of the 1947 Constitution of the Union of Burma. 

Mr. Sultan Ahmed, from Maung Daw, was a member of 1947 Constitutional Assembly, a Member of Parliament from 1951 to 1960 and was Parliamentary Secretary to the Ministry of Minorities, Ministry of Relief and Resettlement, and the Ministry of Social and Religious Affairs, with the status of Deputy Minister. He was one of the longest serving parliamentary secretaries. 

According to him, ‘when section 11 of the constitution of the Union of Burma was being framed, a doubt as to whether the Muslims of North Arakan fell under the section of sub-clauses (I) (II) and (III), arose. In effect an objection was put in to have the doubt cleared in respect of the term “indigenous” as used in the constitution. But it was withdrawn on the understanding and assurance of the President of the Constitutional Assembly, who, when approached for clarification with this question, said, “Muslims of Arakan certainly belong to one of the indigenous races of Burma, which you represent. In fact, there are no pure indigenous races in Burma and that if you do not belong to indigenous races Burma; we also cannot be taken as indigenous races of Burma.” Being satisfied with his kind explanation, the objection put in was withdrawn.’

Being one of the indigenous communities of Burma, the Rohingyas were enfranchised in all the national and local elections of Burma. 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. They had their own political, cultural, social organizations and had their programme in their own language in the official Burma Broadcasting Services (BSS). As a Burma’s racial groups, they participated in the official “Union Day’ celebration in Burma’s capital, Rangoon, every year. To satisfy part of their demand, the government granted them limited local autonomy and declared establishment of Mayu Frontier Administration (MFA) in early 60s, a special frontier district to be ruled directly by the central government.

In spite of that the Rohingya are the worst victims of human rights violations in Burma. They were displaced. Their identity was polluted. Their population was diluted. Their right to nationality was arbitrarily deprived. Since 1948, expelling the Rohingyas from their ancestral land and properties has become almost a recurring phenomenon. About 2 million uprooted Rohingyas have taken shelters in many countries of the world since the anti-Muslim pogrom of 1942 in Arakan. 

The condition of Rohingyyas started to turn from bad to worse when the military generals staged a coup de tat in 1962. Since then, successive Burmese Regimes have institutionalized a system of apartheid against these people. Kept in concentration camp-like conditions and ghettoized neighborhoods, Rohingya are not permitted freedom of movement. 

The current Thein Sein Government has surpassed all the previous records. His government vehemently denies the existence of a Rohingya ethnicity, referring to the group, even in official documents, as “Bengali.” By rejecting the appeal of UN to grant its Rohingya minority citizenship, President Thein Sein has suggested that the solution to ethnic enmity in Rakhine State was to send the Rohingya to another country or have the UN refugee agency look after them.

The year 2012 was a critical year for the Rohingyas of Burma. At a time when Burma was re-claiming admission into the community of nations through instituting incremental reforms in its domestic political process and the icon of democracy and change, Noble laureate Aung San Suu Kyi, was on her trail to acknowledge international accolades bestowed on her, the Burmese state was engaged in serious violations of rights of the Rohingya community in the northern Arakan state.

The images of charred corpses, torched hamlets and wailing women and children dismayed the international community and conveyed messages of large-scale massacres and destruction of properties. Once again the world community stirred up to the plights of the Rohingyas, labelled by the UN as “the world's most persecuted minority.” 

In June 2012, in the aftermath of the alleged rape and murder of a Rakhine woman by few members of the Rohingya community, all hell broke loose. By invoking medieval conception of justice of punishing everyone for the act of a few errant members, not only did the Buddhist Rakhines inflicted disproportionate harm on the Rohingyas, on occasions induced and led by the monks; the Burmese state too instead of providing protection to the victims became an active party in the carnage. 

Since then unspeakable crimes are being carried out against innocent humans: children, women and men by the country’s government and racist extremists. The Rohingya have been singled out for systematic destruction.

Every aspect of their lives, including marriage, childbirth and ability to work, is severely restricted. Their right to identity and citizenship is officially denied; in other words, they are not recognized as humans before the law. The Myanmar government even denies humanitarian agencies unfettered access to nearly 200,000 Rohingya in the camps.

From June 2012 to July 2013, the violence has left more than 200 people dead and displaced about 150,000 more, mostly Muslims. Violence also has spread to other parts of Burma.

Since then, the Rohingya have been backed into a corner, their lives made so intolerable that tens of thousands have fled by sea, seeking safety and a sense of dignity elsewhere. Surviving the perilous journey to Bangladesh, Thailand or Malaysia is, too often, seen as the only way to finally be free from persecution. 

According to U Kyaw Min, an elected MP, Chairman of Democracy and Human Rights Party and also a member of Committee for Representatives Peoples Parliament (CRPP), “Rohingyas have been subjected to various pretexts and lame accuses which resulted in physical assault and mass destructions making 150,000 IDPs since 2012. These are well planned, well organized by a Rakhine terrorist network. The main instigator monk Wirathu is appreciated and applauded as loyal son of Lord Buddha. Despite 150,000 Rohingya’s being IDPs, the rest about one million or one third of total Rakhine state population are virtually confined in their homes or villages. Because of curfew order restriction, all Rohingya lost freedom of movement, work, and worship in mosques. No personal, cultural and food security for them. They have no access to medical care. Schools in the villages are closed. University students could not continue their academic study because of security and travel permit. Rohingyas suffer from malnutrition and almost all are starving or half fed. Thus people are compelled to flee the land in face of a lot of troubles and risks in their rash to other countries for safe haven.”

Campaigns of terror, crimes against humanity and extermination have been perpetrated against the Rohingya in a systematic and planned way. The restrictions on freedom of movement, marriage and education have dashed any future hope of development for the Rohingya, including forming families, all while they live in subhuman conditions amidst abject poverty. Humiliating restrictions on movement—even on travel from place to place within the same locality—have affected all normal activities in all fields, crippling the Rohingya socially, economically and educationally. 

Today, this group is increasingly jobless, homeless, without land of their own and the most illiterate section of Burma’s population. They are not tolerated and are systematically excluded and rendered ‘stateless’ in their own homeland because of their religious belief and ethnicity. They are not only denied their nationality but also their citizenships rights. They are now a people without a country dying alive and facing ‘slow-burning genocide’.