Aman Ullah
Citizenship is a status in society. It generally describes a person with legal rights within a given political order. When there are many different groups within a nation, citizenship may be the only real bond which unites everybody as equals without discrimination—it is a “broad bond” linking “a person with the state” and gives people a universal identity as a legal member of a specific nation.Citizenship is necessarily linked to the very idea of ‘nationhood’, which itself is based on an essentialist category of birthplace, and dictates who is included and more importantly, who is not. There can be no citizen without a nation, and no nation without citizens. The very logic of birthright citizenship means that immigrants who seek to be citizens of a country must be ‘naturalized’ or made ‘normal’, and must prove themselves to be deserving of the title of ‘citizen’.
With its genesis in nationhood, citizenship is a powerful exclusionary tool that imposes the homogenizing identity of ‘nationality’ and serves to weaken all other forms of identity such as ethnicity, language, religion, etc.
However, Burmese successive Regimes always try to deny and to reject the Rohingya not only as one of the country’s indigenous peoples but also their citizenship rights although the presence of Rohingya in Arakan was prior 1780s. The country’s military, the backbone of all governments since 1962, has pursued varied and evolving strategies to reduce, remove, replace, relocate and otherwise destroy the Rohingya. The discriminatory policies of Myanmar’s government since the late 1970s have compelled hundreds of thousands of Muslim Rohingya to flee their homes in the predominantly Buddhist country. Most have crossed by land into Bangladesh, while others have taken to the sea to reach Indonesia, Malaysia, and Thailand. They have been subjected to institutionalized, widespread and systematic persecution, genocide and ethnic cleansing in the most inhuman manner at the hands of successive Burmese Military Regimes in order to expel forcefully the entire Rohingya population from Arakan. As a result, since 1948, about 3 million Rohingyas have been expelled or have to flee their ancestral homeland for their lives.
The recent Rohingya crisis started follows a series of coordinated attacks by ethnic Rohingya militants on August 25, 2017. The tough response of the country’s authorities triggered violent clashes, which claimed the lives of at least 20,000 people and more than 7, 00,000 Rohingya people have compelled to flee into Bangladesh where more than 3, 00,000 Myanmar nationals already there who entered the country in various phases.
Citizenship is a “right to have right.” 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.” As a member of the United Nations, Burma/Myanmar 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.”
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 except 2015 and 2020 elections under all the constitutions of Burma:- under the Government of Burma Act 1935, under the Constitution of Union of Burma 1947, Under the Constitution of Socialist Republic of Union of Burma 1974, under the Constitution of the Republic of Union of Myanmar 2008.
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.
Under the Government of Burma Act 1935
(1) 1936 election of Legislative Assembly
The first election held under the Government of Burma Act 1935 that took place in November 1936. Burma was separated from India under the Government of Burma Act, 1935. The said Act was prescribed in the nature of a constitution and it may be considered to be the first Constitution of Burma. Under the said Act the Governor of Burma was appointed directly by the British Government. There were 2 Chambers in the Legislature, the House of Representatives and the Senate.
Under the 1935 Act there were 132 seats in the House of Representatives, 91 of the seats were general non-communal seats and the remaining 41 being reserved for communal and special interest groups of which 12 were reserved for Karen (of Ministerial Burma), 8 for Indians, 2 for Anglo-Burmans, and 3 for Europeans. But, according to Martin Smith, ‘there was no separate representation for the Mons of Lower Burma; the question of seats of the Southern Chin, the Arakanese Muslims including Kamans and Myedus, the Zerbadis from the mixed Burma Muslims union. The single exception has been North Arakan, where Muslims from distinct majority constituency in several districts along the Bangladesh border.’ {Martin Smith, Burma: Insurgency and the Politics of Ethnicity 1999} Thus, the Rohingya Muslims of Akyab district North constituency, a non-communal rural constituency, were recognize as children of the soil and in the first time taken as eligible to vote or to stand for election on the ground of their being one of the indigenous communities of Burma. Mr. Ghani Markin returned on the votes of those Rohingyas as a Member of Legislative Assembly.
(2) Constituent Assembly election of 1947
The second election was held under the Aung San-Atlee Agreement that was signed on 27 January 1947. According to that agreement, which said, ‘in order to decide on the future of Burma a Constituent Assembly shall be elected within four months instead of Legislature under the Act of 1935. For this purpose, the electoral machinery of 1935 Act will be used. Election will take place in April 1947 for the general non-communal, the Karen and the Anglo-Burman constituencies as constituted under the Act of 1935, and each constituency two member shall be returned. Any Burma nationals defined in the ‘Annex A’ of the Agreement registered in a general constituency other than one of those mentioned above shall be placed on the register of a general non-communal constituency.’
According to ‘Annex A’ of the Agreement, ‘A Burma National is defined for the purpose of eligibility to vote and to stand as a candidate at the forth coming election as British subject or the subject of an Indian State who was born in Burma and reside there for a total period not less than eight years in the ten years immediately preceding either 1st January, 1942 or 1st January 1947’.
Although the Muslims of Akyab district North constituency were recognized as eligible to vote or to stand for the 1936 election of Legislative Assembly, but when the Aung San – Atlee Agreement was out, the government misunderstood the position and it was notified that unless they declared themselves as Burma nationals, they would not be eligible to vote or to stand for election to the constituent Assembly.
The Muslims of that constituencies made strong protest against this decision on the ground of their being one of the indigenous races of Burma. The government withheld the first decision and allowed the Muslims to vote or stand for elections held in March 1947. Mr. Sultan Ahmed and Mr. Abdul Gaffar returned on the votes of this Muslims as members of the constituent Assembly. They continued in their office, representing the Akyab district North constituency till Burmese independence and took the oath of allegiance to the Union of Burma on the 4th January 1948 as members of the new parliament of the Union of Burma.
Under the Constitution of Union of Burma 1947
Since the holding of the constituent Assembly till 1962 military took over, three general elections were held for both Chambers of the Parliament in 1951, 1956 and 1960 respectively, under the Constitution of Union of Burma 1947.
According to the Article 76 (1) of 1947 Burma Constitution, every citizen, who has completed the age of twenty-one years and who is not placed under any disability or incapacity by this Constitution or by law, shall be eligible for membership of the Parliament. And (2) Every citizen, who has completed the age of eighteen years and who is not disqualified by law and complies with the provisions of the law regulating elections to the Parliament, shall have the right to vote at any election to the Parliament.
According to Article 10 of 1947 Constitution, there shall be but one citizenship throughout the Union; that is to say, there shall be no citizenship of the unit as distinct from the citizenship of the Union.
As per Article 11: –
(I) Every person, both of whose parents belong or belonged to any of the indigenous races of Burma;
(ii) every person born in any of the territories included within the Union, at least one of whose grand-parents belong or belonged to any of the indigenous races of Burma
(iii) every person born in any of the territories included within the Union, of parents both of whom are, or if they had been alive at the commencement of this Constitution would have been, citizens of the Union;
(iv) every person who was born in any of the territories which at the time of his birth was included within His Britannic Majesty’s dominions and who has resided in any of the territories included within the Union for a period of not less than eight years in the ten years immediately preceding the date of the commencement of this Constitution or immediately preceding the 1st January 1942 and who intends to reside permanently therein and who signifies his election of citizenship of the Union in the manner and within the time prescribed by law, shall be a citizen of the Union.
Article 12. Nothing contained in section 11 shall derogate from the power of the Parliament to make such laws as it thinks fit in respect of citizenship and alienage and any such law may provide for the admission of new classes of citizens or for the termination of the citizenship of any existing classes.
As bona fide citizens of Burma the Rohingyas had enjoyed the right to vote and the right to be elected in all the elections. In 1951, Mr. Sultan Ahmed, Daw Aye Nyunt (a) Zohora Begam, Mr. Abul Bashar and U Poe Khine (a) Nasir Uddin were elected as members of the Chamber of Deputies and Mr. Abdul Gaffer was elected as a member of the Chamber of Nationalities. In 1956, Mr. Sultan Ahmed, Mr. Abul Khair, Mr. Abul Bahsar and Mr. Ezahar Mian were elected as the members of the Chamber of Deputies and Mr. Abdul Gaffer remained as a member of the Chamber of Nationalities. A by-election was held for the Buthidaung North Constituency in 1957 as the election of Mr. Ezahar Main was challenged and the verdict was given against him. Mr. Sultan Mahmood was elected and he was inducted in the cabinet of U Nu as a Minister of Health. In 1960, Mr. Rashid Ahmed, Mr. Abul Khair, Mr. Abul Bahsar and Mr. Sultan Mahmood were elected as members of the Chamber of Deputies while Mr. Abdus Suban was elected as a member of the Chamber of Nationalities.
Under the Constitution of the Socialist Republic of the Union of Burma 1974
(1) General Elections
During the Burma Socialist Programme Party (BSPP) regime, four general elections for the People’s assembly and People’s Council at different levels were held in 1974, 1978, 1982 and 1986 respectively. These elections had been held on the basis of the 1974 Constitution.
Under the Article 8 of 1973 Election Law, ‘citizens born of parents both of whom are Union nationals and citizens born of parents both of whom are Union citizens, have the right to be elected people’s representatives to the People’s Assembly or People’s Council at different levels. Persons who are not citizens of the Union of Burma have no right to vote.’
According to Article 145 of the 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.’
Former Minister for Mines Dr. Nyi Nyi and Deputy Minister for Foreign Affairs Minister U Win Ko had to resign from the position of the members of cabinet and People’s Assembly, as they could not fulfill the requirement of the said law.
The Rohingyas had enjoyed the right to vote and the right to be elected as people’s representatives to the Organ of State power at different levels. No Rohingya who had either been elected or who had applied for the nomination had neither been challenged nor barred from participation or asked to resign after being elected.
(2) Multi-Party Election of 1990
SLORC held multi-party general election in May 1990. The Rohingya were not only allowed to vote but also, in their exercise of franchise, elected four Rohingya members of Parliament. U Chit Lwin (a) Ebrahim, Mr. Fazal Ahmed, U Kyaw Min (a) Shomshul Anwarul Haque, and U Tin Maung (a) Nur Ahmed have been elected as members of the Parliament.
1990 election was held in according to the 1982 Burmese Citizenship Law. Under the1989 election law ‘all citizens, associate citizens and naturalized citizens are permitted to vote, but only the citizens are allowed to stand for election. No foreign residents were allowed to vote.’ Thus, allowing taking part in the national elections must be upheld as a measure of recognition for the Rohingyas as full citizens even under 1982 Citizenship Law.
In fact, the Rohingyas were not only permitted to vote but also to form their own political parties during the May 1990 election. Two parties were formed the Students and Youth League for Mayu Development and the National Democratic and Human Rights (NDPHR). The NDPHR won all four seats in Maung Daw and Buthidaung constituencies, and in each constituency votes for the two parties counted for 80 per cent of the total votes cast.
Moreover, the turnout in both constituencies equaled the national average, at 70 per cent of eligible voters. The NDPHR also fielded candidates in four other constituencies; Kyuk Taw-1, Minbya-1, Mrauk U -2 and Sittwe -2, and they gained an average of 17 per cent of the votes while the Government- backed National Unity Party got only 13 per cent.
Although the name of Rohingya was not permitted to use in the party title, the NDPHR was allowed to produce a booklet in Burmese called ‘Arakan and the Rohingya people: a short History’ on August 31, 1991.
Under the Constitution of the Republic of the Union of Myanmar 2008
A general election was held in Burma (Myanmar) on 7 November 2010, in accordance with the 2008 Constitution of Myanmar. This constitution was approved in a referendum held in May 2008, which was held in the midst of Cyclone Nargis. The Rohingya over whelming support this constitutional referendum.
A total of 37 political parties contested in this election, which included two Rohingya political parties also contested – – National Democratic Party for Development (NDPD) and National Democratic and Peace Party (NDPP). Some independent Rohingya candidates also contested in the election.
Out 33 Rohingya contested in the polls, 21 contested with NDPD ticket, 6 with USDP ticket, 3 with NDPP ticket and 3 independent candidates. U Htay Win (a) Zahidur Rahman with USDP ticket was elected for the Nationalities Parliament. U Aung Zaw Win (a) Zakir Ahmed and U Shwe Maung (a) Abdul Razak both with USDP tickets were elected for the People’s Parliament. U Aung Myo Myint (a) Jahan Gir with USDP ticket, U Aung Myint (a) Zahiddullah and U Bashir Ahmed both with NDPD tickets were elected for the State Parliament. The Rohingyas of North Arakan were overwhelmingly gone to vote with average turnover of more than 90%.
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 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 citizenship 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.
Moreover, in accordance with all the constitutions of the Burma from 1935 to 2008, the Rohingyas were recognized as the citizens of Burma and eligible to exercise their right to franchise. Hence, there is no question to arise regarding their citizenship. They are without no doubt bono fide and full-fledged citizens of Burma.
