The Rohingyas: Between The Devil And The Deep Sea

Aman Ullah

RB Article

October 3, 2014

Burma has laid out a controversial plan to offer citizenship to Rohingya Muslims, described by the UN as the world's most persecuted minority, in exchange for registering their identities as Bengali.

Foreign minister Wunna Maung Lwin said in an address to the UN general assembly that an action plan will be launched soon and requested the international community to provide development assistance in the Rakhine state, where most of the country's 1.1 million Rohingya live, stateless and in apartheid-like conditions.

"We are working for peace, stability, harmony and development of all people in Rakhine state," he said. 

Two days prior to U Wunna Maung Lwin’s speech, UN General Secretary Ban Ki Moon said he remained “deeply troubled” by the situation in Rakhine.

Under this plan, those who refuse to register as Bengali rather Rohingya will be placed in camps while the government seeks their resettlement in a third country. The United Nations Refugee Agency, however, insists they are not eligible for resettlement, raising the prospect, which the government has not denied, of them being detained indefinitely.

The citizenship issue was a settled issue and the Muslims of Arakan who identify themselves Rohingya are citizens by birth. As they, their parents and their grandparents were born and bred in Burma and most of them were indigenous, under the sub clauses (i), (ii) and (iii) of Article Before the colonization of Burma by the British 11, of 1947 Constitution of Union of Burma. These are fundamental rights of a citizen and the 1947 constitution provided safeguard for fundamental rights. Under this constitution, the people of Burma irrespective of ‘birth, religion, sex or race’ equally enjoyed all the citizenships rights including right to express, right to assemble, right to associations and unions, settle in any part of the Union, to acquire property and to follow any occupation, trade, business or profession.

Indigenous peoples were the descendants of those peoples that inhabited a territory prior to colonization or formation of the present state. In the report of the Mr. Panton, the then Deputy Commissioner of Arakan, the Muslim population of Arakan was about 30,000 on the eve of the colonization of Burma by British. Thus, the descendants of those 30,000 must be included in the indigenous races of the Union of Burma. There are also many Muslim of Arakan who can claim to be citizens under section 4 (2) of the Union Citizenship Act of 1948 on the ground of their descent from ancestors who for two generations have made Burma their permanent home, and whose parents and himself were born in Burma. 

The Rohingya is not simply a self-referential group identity, but an official group and ethnic identity recognized by the post-independence state. In the early years of Myanmar’s independence, the Rohingya were recognized as a legitimate ethnic group that deserved a homeland in Burma.

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.

Being one of the indigenous races and bona fide citizens of Burma, the Rohingyas were enfranchised in all the national and local elections of Burma: - during the later colonial period (1935-1948), during the democratic period (1948-1962), during the BSPP regime (1962-1988), 1990 multi-party election held by SLORC and 2010 General Election held by SPDC. 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.

As Rohingyas are already qualified citizens under the existing laws, they are also citizens of Burma according to Article 145 of 1974 Constitution and Section 345 (b) of 2008 Constitution. According to the Article 145 of 1974 Constitution, ‘citizens are those who are born of the parents whom are nationals of the Socialist Republic of Union of the Burma and who are vested with citizenship according to existing laws on the date of this constitution comes into force’ and under Section 345 (b) of 2008 constitution, ‘Person who is already a citizen according to law on the day this Constitution comes into operation are citizens of the Republic of the Union of Myanmar’.

Even, according to the section 6 of the 1982 Citizenship Law “A person who is already a citizen on the date this Law cones into force is a citizen. Action, however shall be taken under section 18 for infringement of the provision of that section.” That’s means that, Section 6 of the 1982 Citizenship Law states that, “according to The Union Citizenship (Election) Act, 1948 and The Union Citizenship Act, 1948, a person who is already a citizen on the date this Law comes into force is a citizen by law”. 

Thus, under all those laws and Acts mentioned above, the Muslims of Arakan who prefer to identify themselves in their own language as ‘Rohingya’ are not only one of the indigenous races of Burma but also full citizens of the Burma. Their citizenship matter was settled before the independence of Burma. They are not de facto citizens; they are de jure citizens of the country.

In spite of that, expelling the Rohingyas from their ancestral land and properties has become almost a recurring phenomenon since 1948. About 2 million uprooted Rohingya have been sheltering in many countries of world since the anti-Muslim pogrom of 1842 in Arakan. 

The apparent aim of promoting sectarian harmony and peaceful coexistence and resolving the issue of stateless through citizenship verification is a sinister ploy to reclassify the Rohingyas and forfeit Burmese citizenship. For many Rohingyas of Burma to register as Bengali would acknowledge that they are illegal immigrants and risk being in a limbo for rest of their lives.

Citizenship or Nationality is a “right to have right”. 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 widely ratified international treaty defining criteria for granting citizenship, a principle appears to be emerging whereby nationality is defined as a ‘genuine and effective link’ between the individual and state. This focuses primarily on “Factual ties” as a basis for nationality rights, determined by 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 inculcated in his children, etc.”

The International Court of Justice has determined that identifying the state in relation to which an individual may claim the right to a nationality should also be informed by the links that an individual has to particular state. Just as an individual cannot disclaim nationality where “genuine and effective” links to a particular state are clearly established, a state cannot deny the existence of such links on the basis of a claimed sovereign prerogative to determine nationality and citizenship.

Moreover, deliberately depriving the citizenship of the persons who had previously been recognized as citizens is even more objectionable in so far as it is trying to apply in an ex-post facto manner in contradiction to the international legal standards.

Now this controversial government plan, which to offer the Rohingyas an option to register as ‘Bengalis’ or face detention in camps. This either- or – option for an ethnic group that has been living in Burma for several centuries and suffering unbridled persecution there for a long time is really asking them to choose 'between the devil and the deep sea'. 

The Rohingya have been subject to this dilemma for decades; the choice between living under a regime that not only refuses to recognize the Rohingya as citizens but systematically persecutes them or languishing inside the confines of a refugee camps or living without documentation or legal protection in a foreign country.