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An Assessment of the Question of Rohingya’s Nationality
Legal Nexus between Rohingya and the State
By U Kyaw Min, Ex. MP from Buthidaung North, Arakan State
It is difficult for general Burmese to understand the legal status of Rohingya. Majority does not know the Geo-Political and historical background of Arakan. To general Burmese, a Burmese is a Buddhist. If a pure Burmese happens to be a Muslim he is regarded as a Kalah or a foreigner. Here, Rohingyas are Muslims, their complexions are different from general Burmese, so they are generally seen as foreigners or descendants of foreigners that mean Rohingyas are regarded as non-natives.
However, Bokyoke Aung San, father of the nation and the leaders of post-independence period studied the affairs of all minorities in the nation and generously accepted Rohingyas as an indigenous race of Burma at the same par with Kachin, Kayah, Karen, Chin, Mon and Rakhine. He (Bokyoke) sought the cooperation of Rohingyas. He assured them of their genuine nationality in Myanmar during his meeting with Muslim elders at Akyab in May 1946. U Aung Zan Wai and Mr. Sultan Mahmood (Ex-Health Minister) were said to have been assigned to go up to Maungdaw to organize Rohingyas there for AFPFL.
In early British census Rohingya, Kaman, Myedu and Chittagonians or Bengalis were all censured under the column of Muslims. Sometimes Arakanese (Rakhine) Muslims were categorized as Sheikhs and sometimes they were put under the column of Indian Muslims. Arakanese Muslims protested not to mix them with foreign Muslims. So in 1921 census only some Rakhine speaking Muslims were shown under separate column as Arakan Mohammedan. Then again in 1931 census Myedu and Kaman only were separately listed, whence some Rohingyas still remained under general Muslim headline. Yet Rohingyas are not foreigners in independent Burma. Grounds for this claim are:
1- In 1864 Foreigner Act was enacted and again it was amended as Foreigner Registration Act in 1940 and then came out Registration of Foreigner Rule in 1948. But Rohingyas, who settled in Arakan Village-wise, were not subjected to registration as foreigners.
2- In 91 department administrations of late colonial period, British election law had provisions for the representation of Indians in Burma. Rohingyas from north Arakan were allowed to represent as Burmese, not as Indians. Their representatives U Pho Khaing and U Gani Marakan had competed not as Indian, but as Burman against U Aung Tun Khaing and U Shwe Tha, who were Rakhines, in their respective nationality constituencies.
3- Further in the Constituent Assembly of Bokyoke Aung San, Sultan Ahmed from Maungdaw, Abdul Gaffar from Buthidaung and U Pho Khaing (a) Nasir Uddin from Akyab got elected as Burmese citizen representatives. The most interesting thing is on the very day of Bokyoke Aung San and his colleague’s martyrdom, there was an official appointment at noon with these Arakan State Representatives.1
4- Under 1947 Burma Immigration (Emergency Provision) Act, no foreigner can enter the Union of Burma without any Immigration Permit issued by the controller or by any official authorized to issue such permits or a valid Passport duly visaed or endorsed by or on behalf of the President of the Union. Here a foreigner can enter secretly to Arakan but it is not easy for him to take permanent settlement in the midst of a functioning mechanism of Government.
5- Here again, there are the Immigration (Detention) Rules of 1951, in Burma. Under this rule any foreigner found entered the country illegally can be deported. There were instances of annulling deportation orders by Chief Court of Burma, in the cases of some Arakan Muslims 2, who were arbitrarily arrested and sentenced for some years on conditions of deporting after the jail term.
6- There is the Union Constitution of 1947. Section 11 of this Constitution expressed: any of the indigenous races of the Burma means: the Arakanese, Burmese, Chin, Kachin, Karen, (Kayah), Mon or Shan races and such racial groups as has settled in any of the territories included within the Union as their permanent home since period anterior to 1823 A.D. (1185 B.E) [Thus Rohingyas, whose residency in Arakan rooted so many centuries back, fall under this category of the indigenous race.]
7- The Union citizenship Act of 1948: citizenship is a right to have rights. Section 3 (1) of this Act stipulates again Section 11 of the Constitution Section 4 (2) reads: any person descended from ancestors, who for two generations at least have all made any of the territories included within the Union their permanent home and whose parents and himself were born in any of such territories shall be deemed to be a citizen of Union. [If Rohingyas were not recognized as indigenous race as said above in Article 11 of the Constitution, they at least enjoyed citizenship under this Section of citizenship Act. Many Rohingyas in post independence period won the charges against them by immigration in Court, by showing clearance under this Section.]
8- Issuance of National Registration Certificate: This is the most authentic document concerning Rohingya’s citizenship. In parallel with Union Citizenship Act, the Residents of Burma Registration Act was enacted in 1949, followed by its executing Rules in 1951. Accordingly, all people residing in Myanmar were required to register either as residents or foreigners. To these two categories corresponded two novel document National Registration Cards (NRCs) and Foreigner Registration Certificate (FRCs) (under 1864 Foreigner Act and then amended in 1940 as Foreigners Registration Act), for residents and foreigners respectively. NRCs were issued to all residents (mainly citizens) whilst registered foreigners (under Foreigners Registration Act and Rule of 1948) were issued FRCs. There was no third category of people in Burma, then. As a result, NRCs were used as a proof of nationality or citizenship.
Here Burma Residents Registration Rules of 1951, Section 33(b), stipulates what so ever this Rule cannot be applied to foreigners except the case in Section 29 and 31.
Section 33 Article (a) says Foreigners who were registered under 1940, Foreigners Registration Act should be accepted as registered under this rule, and their FRCs should be regarded as if issued under this rule.
Note: section 29, stipulates to carry the registration cards in case of traveling outside residing town.
Section 31, stipulates, in case of failure to abide by this rule, one is subject to face Legal action under Section 6 Article 2 of Burma Resident Registration Act.
In practice, too, the NRC holders had the right to possess immoveable properties, the right to public jobs, insurance, social security and professional educations. Rohigyas have been enjoying all these rights since independence up to 1990.
The most noteworthy thing is that the first town in the Union to issue this NRC in 1954 was Maungdaw. People in that area did not approach to immigration and Registration offices, individually or in groups to obtain the documents in illegal way. But the official under special project got to the grass root villages and issued the Cards to the villagers. Then how can we say, people obtained NRCs by bribing the local officials. So the notion that Rohingyas in Arakan acquired NRCs by fraud is not reasonable at all.
All NRC issued in earlier years bear no additional remarks. A remark stating, “holding this certificate shall not be considered as a conclusive proof of as to citizenship” was sealed later on NRCs. The reason behind this extra remark sealed later was the best known to the authorities. Perhaps one of the objectives of 1978, Dragon King Operation was to stamp the above remark on all NRCs.
9- Issuance of National Passports: Since independence, Muslims from Arakan States obtained National Passports to travel abroad. In the last few decades, pilgrims to Makkah, from Rakhine State, got Passports of the Union of Burma, too. Under international law, the possession of such document is a proof of nationality.
- Eligibility to elect and to be elected: In International laws, only citizens can compete in national elections. Burmese Constitution and Election Law prohibit foreigners from the right to elect and to be elected. The criterion to run for election is not only that the candidate is a full citizen but also both of his parents must be citizens too.
