Another X-mas is upon us. But no such good news for the Rohingyas we can bring, and it's a hard reality. Attached is an official response by Burmese Immigration Minister explaining why the government is not considering to amend the 1982 Citizenship Laws, which most human rights activists considered draconian. I have taken a while to reach (or find out from web) this official response.
On the positive note, some MPs had put forward the motion, at the very least, to amend the 1982 Citizenship Laws. Which exact portion they were targeting to amend, I still have no information, however.
I think, from the human rights campaigners' part, we should better be looking into this 1982 Law in some details. In comparison to previous 1948 Citizenship Laws, the different points are:
1. The introduction of Associate Citizenship;
2. Removing the grant of citizenship based on soil;
Ovbiously, the government's given explanation cannot be taken at its face value; so too are some historical accounts on why this 1982 Law was introduced. These facts will need our greater scrutiny.
When it comes to the issues of Rohingya, many often describe that it is 'most complex', 'intractable' etc. This is because no-one is telling -- unable to be telling -- the whole story. In this case, there are three entities involving in the problem: (1) Government of Burma (2) Government of Bangladesh and (3) Rohingya Community. I do not think none of these three entities have given us the whole story.
One paragraph below by Burmese Immigration Minister needed our noting:
"c. Moreover, it can be said that emphasis is being placed on the matters of human rights and reducing stateless persons voiced by many people today because mixed parentage persons are allowed to apply for associate citizenship and naturalized citizenship and to be chosen as associate citizen and naturalized citizen if they meet prescribed points after they have come under scrutiny by township level/ region and state level committees formed with various departments. If the applicants meet prescribed points, they will be determined as associate citizens first. If they owe allegiance to the State and respect and abide by the laws of the State, their third generation will be entitled to enjoy the right of citizenship on the grounds of the abovementioned points. So the Law was promulgated in accord with a far-sighted view and it has a strong point."
It sounded like some Rohingyas may have to repeat the very same ordeal like 1982 period all over again if we cannot fix this time.
To you all, have a Merry X-mas of 2013.
Regards, U Ne Oo, Australia.
( An Official Reply by Burmese Immigration Minister on the Question of Amendment to 1982 Citizenship Laws)
Nay Pyi Taw, 18 June
The news on “the government is planning to amend the 1982 Myanmar Citizenship Law and to put forward it to the Hluttaw; Majority of MPs of Pyidaungsu Hluttaw will go against it” covered in the 13 June, 2013 issue of the Daily Eleven Newspaper is wrong, said Ministry of Immigration and Population.
To amend the Myanmar Citizenship Law (1982 Pyithu Hluttaw Law No.4), U Tin Mya from Sagaing Region constituency No.7 submitted “a proposal on drafting and enacting a new Myanmar Citizenship law and revoking the existing Myanmar Citizenship Law (1982-Pyithu Hluttaw Law No.4)”during the ninth day meeting of the first Amyotha Hluttaw fifth regulation session on 6th November, 2012. The proposal was discussed by U Mann Kan Nyunt of Kayin State Constituency No. 2, U Khin Maung (a) U Aung Kyaw Oo of Rakhine State Constituency No. 3, U Maung Aye Tun of Rakhine State constituency No 9, U Kyaw Kyaw of Rakhine State constituency No. 2, Dr Banya Aung Moe of Mon State constituency No.7, U Khin Maung Latt of Rakhine State constituency No. 6, U Ohn Tin of Rakhine State constituency No. 10 and U Sai Paung Nap of Shan State constituency No. 12. The discussion was broadcast by the Sky Net.
Regarding the discussion of the eight MPs, Union Minister for Immigration and Population U Khin Yi rejected the proposal, saying that the ministry is working to amend outdated words in the stipulations of the law including fine and fixing the amount of fine.
The full text of the clarification of the Union Minister is as follows: It is found that U Tin Mya, MP of the Sagaing Region constituency No 7 proposed to amend, revoke and add to the existing over-30-year-old Myanmar Citizenship Law (1982 Pyithu Hluttaw Law No. 4) to be in line with the current time and international standard. However, the proposal urged the Hluttaw to draft and enact a new citizenship law and to revoke the existing Myanmar Citizenship Law instead of amending, revoking and adding some clauses to the law in order to improve the law to be suitable with the current time.
As eight MPs have already discussed the proposal, I am not going to recount that part. I will discuss how this law emerged and which criteria is needed to be used for measuring the standard of the law and will clarify some points discussed by the MPs.
First of all, I believe that the MP who took a lot of time to learn the law in detail put forward the proposal to write and enact a new Myanmar citizenship law in order to be suitable to the current time and submitted his proposal in the interests of the State as he found many requirements in it. I respect his proposal.
However, it took over six years to draft a bill after learning defects of the previous law and considering current situation and to approve it as the law after presenting the bill to all walks of life in the whole country. I would like to clarify the law to share my knowledge on the law to all MPs who are representing the entire people. These days, there is widespread criticism from different points of view over whether this law should be revoked or not, and over who is responsible for the settlement of foreigners in border areas. So, it is required to clarify how this law was made and which facts were considered to make this law. Mr. Speaker, please give me time to explain brief history of this law.
History has it that there was no settlements of foreigner in Myanmar before 1824. Our history shows that in those days, over 100 ethnics including Kachin, Kayah, Kayin, Chin, Bama, Mon, Rakhine and Shan and their related ethnic groups have living together unitedly. In 1824, the first Anglo-Myanmar War broke out. After the war, the western part of Myanmar was annexed by the British and it was established as one of the states of India. Since then, foreigners from the neighbouring country had settled in Myanmar under various reasons.
Therefore, indigenous national races and foreigners are found in Myanmar. Before that, only indigenous peoples lived in the country. And, as usual there emerged a new class of mixed race in the country. Therefore, the main reason why foreigners settled in the country for the very first time is the colonialism.
As I have alreadymentioned earlier, foreigners got the chance to set foot on Myanmar soil together with the arrival of colonialism. Moreover, it is a common knowledge that internal conflicts that broke out soon after the regaining of independence opened way for more cousins of foreigners already residing in Myanmar to easily enter through borders, settle, mix with local people and increase in the country.
Because of time limitation, I will not categorize each and every race that entered Myanmar through borders. I will point out only the penetration in western part of Myanmar. Some parts of Myanmar fell under foreign occupation in 1824 and in 1885, the whole country was colonized. The country regained independence on 4 January 1948. So the country had to live under foreign rule for over 120 years between 1824 and 1948. The country lost sovereignty and fell under enslavement during the said period. We had no self determination then. We had no right to protect our own people and country.
The population of people with mixed parentage in Myanmar was already high when the nation regained independence. To address this problem, the then State administrators enacted Burma Citizenship Act 1948 the Union Citizenship Act, 1948. The said two laws were based on the Constitution of that time. Citizenship was defined in sub articles (a), (b), (c) and (d) of the Article 11 of the Constitution of Union of Burma 1947. As I do not want to take too much time, I will extract only one or two articles as an example. The sub article (d) stated, “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 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”.
During the time, there is a phrase, mentioning the British Empire as “the empire on which the sun never sets”. So, there is no wonder that His Britannic Majesty’s dominions were all over the world. In this regard, this sub article can mean that a person however far his country is from Myanmar, however different his characteristics are from Myanmar, and whether he has any of our ingenious blood shall be a citizen of the Union if he has resided in any of the territories included within the Union for a prescribed period.
So, the weakness is that the citizenship is like counting only on Britain. Another example is that article 5 of the Union Citizenship Act, 1948 said that a foreigner should apply for citizenship, and if a minister agreed he should become a citizen. So it requires only the decision of a minister for a matter that concerns even with the sovereignty of the nation.
There is lack of serious consideration for national interest. It is also a weakness. There are also other legal weaknesses. The matter of granting citizenship is the right within the jurisdiction of State sovereignty. But the citizenship acts were drafted amidst the independence struggles. So, focus was more on the then prevailing situation than on the long term interest of the nation and the people.
During the post independence, there were not enough indigenous experts in every sector of nation-building. There were concessions in drafting the citizenship acts as most of the legislation was based on aid requirement. Accordingly, there were loopholes. Here I would present a globally determining factor in granting citizenship. Normally, there are two ways — the right of soil and the right of blood. The right of soil is a right by which citizenship can be recognized to any individual living in the territory of the related state for a prescribed period. The right of blood is a right by which citizenship can be recognized to any individual having blood relations with a citizen of the related state. There are many global countries which accept the right of soil or the right of blood based on their own national interest.
So concerning the MP’s presentation saying that the existing law should be on a par with international laws, I would say that even the world countries have their own ways that are different from one another in granting citizenship. The point is that there is no fixed method. While citizenship was being recognized under Burma citizenship act 1948 and citizenship election act, a new government came to power in 1962. The new government was aware of the high population of mixed parentage and foreigners in the nation. Beginning 1976, it started thinking about drawing a new law taking into account factors involving race, national interest and security concerns as there were loopholes in the existing law.
The Council of State had formed a separate law commission to draft a new bill. According to the old records, bill drafting started in 1978 and had to take six years. And it was drafted with the suggestions from all walks of life including those from remote areas. The 1982-Myanmar Citizenship Law was approved and passed by Pyithu Hluttaw on 15 October, 1982. It is seen that that law was prescribed based on the main points such as mixed parentage and the weakness of two laws prescribed in 1948 and their citizenships.
As I mentioned earlier, the 1982 Myanmar Citizenship Law with 10 chapters and 76 Sections recognizes three categories of citizens, namely citizen, associate citizen and naturalized citizen, Under that law, citizenships is decided based on prescriptions of laws, not on racial and religions.
There are two kinds of citizens—citizens by birth and citizens by law. According to section 3, nationals such as the Kachin, Kayah, Kayin, Chin, Burma, Mon, Rakhine and Shan and ethnic groups as have settled in any of the territories within the State as their permanent home from a period anterior to 1185 M.E., 1823 A.D. are Myanmar citizens by birth.
According to section-5, every national and every person born of parents, both of whom are indigenous nationals are citizens by birth. Even though they are Kachin, Kayah, Kayin, Chin, Burma, Mon, Rakhine and Shan, they are not national races if they permanently live in other countries, not in Myanmar. Same national races who have settled in Myanmar after 1824 are not indigenous races. So they are not citizens by birth. The law also states that national races who acquire citizenship of other countries and persons born of parents, both of whom are those foreign citizens cannot become Myanmar citizens.
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. Actions will be taken against those citizens who break the section 18 of the 1982 Citizenship Law. We must aware of the fact that if a mixed-race person with different features holds a citizenship scrutinized card he could be a citizen by law.
According to the 1982 Myanmar Citizenship Law, the following persons can apply for associate citizenship;
(a) the remaining persons who have applied for citizenship according to The Union Citizenship Act, 1948
(b) persons born of parents of associate citizens
According to the 1982 Myanmar Citizenship Law, the following persons can apply for naturalized citizenship;
(a) persons who have entered and resided in the State anterior to 4th January, 1948, and their off springs born within the State
(b) The following persons born in or outside the State from the date this Law comes into force may also apply for naturalized citizenship:
(1) persons born of Parents one of whom is a citizen and the other a foreigner;
(2) persons born of parents, one of whom is an associate citizen and the other a naturalized citizen;
(3) persons born of parents one of whom is an associate citizen and the other a foreigner;
(4) persons born of parents, both of whom are naturalized citizens;
(5) persons born of parents, one of whom is a naturalized citizen and the other a foreigner.
(c) A person married to a citizen or to an associate citizen or to a naturalized citizen, who is holding a Foreigner’s Registration Certificate anterior to the date this Law comes into force
According to 1982 Myanmar Citizenship Law, the five-member Central Body perform scrutinizing and making decision on the applications for citizenship/ associate citizenship/ naturalized citizenship of mixed-parentage persons.
Those who apply for the citizenship are subjected to scrutiny by the township level scrutinizing board formed with various departments before submitting their applications to the Central Body.
There are many points used in scrutinizing process. The Central Body has to submit the applications and seek the approval of the Cabinet after the applications came under close scrutiny. It is found that there are strong points in scrutinizing the applications for citizenship/ associate citizenship/ naturalized citizenship by making decisions from the state security and administrative points of view as the Central Committee is formed with the Minister for Immigration and Population and the Ministers for Defence, Home Affairs and Foreign Affairs and the secretary is appointed by the chairman.
Arrangements had been made to have a number of different points of view on this process as only the decision of one minister was approved in the early days. Moreover, it can be said that the Law is fair, transparent and flexible because it allows a person dissatisfied with the decision of the Central Body may appeal to the Cabinet under Section (70) of the Law and the Cabinet can make an assessment and judgment on the decision of the Central Body.
I would like to explain some points that are found as strong points in the 1982 Myanmar Citizenship Law.
(a) It is found that points shown in the 1982 Myanmar Citizenship Law are agreed with ensuring human rights, reduction in stateless persons, no changes in citizenship of women due to their marriages, birth registration and citizenship of children and no discrimination on the grounds of race, gender, colour and religion prescribed in international conventions and each point can prove that they have no bias but it was drawn for the sake of the national interest.
(b) It is found that when an applicant for naturalized citizenship was informed officially that the person who will be determined as a naturalized citizen with the approvals of township level/region and state level/ Central Body and the Cabinet if the person have the abovementioned qualifications, the person is allowed a prescribed time to acquire the naturalized citizenship granted in accord with the Law after renouncing his foreign citizenship and that the person is allowed to divest himself of his naturalized citizenship except during any war in which the State is engaged are agreed with the prescriptions of international convention.
(c) Moreover, it can be said that emphasis is being placed on the matters of human rights and reducing stateless persons voiced by many people today because mixed parentage persons are allowed to apply for associate citizenship and naturalized citizenship and to be chosen as associate citizen and naturalized citizen if they meet prescribed points after they have come under scrutiny by township level/ region and state level committees formed with various departments. If the applicants meet prescribed points, they will be determined as associate citizens first. If they owe allegiance to the State and respect and abide by the laws of the State, their third generation will be entitled to enjoy the right of citizenship on the grounds of the abovementioned points. So the Law was promulgated in accord with a far-sighted view and it has a strong point.
(d) The current Law is in compliance with the provisions of citizenship and revocation of citizenship prescribed in the 2008 Constitution of the Republic of the Union of Myanmar, assisting a provision in which a person who is born of citizen parents has a right to be elected laid prescribed in the election law and bylaws of Pyithu Hluttaw, Amyotha Hluttaw and Region and State Hluttaw.
(e) As the Central Body is vested power to decide if a person is a citizen or associate citizen or a naturalized citizen, it can perform the scrutinizing process in accord with the political, security and administrative, economic and social policies. It is found that the functions of the body are being pushed to be smooth, speedy and correct under the supervision of the Cabinet.
(f) There are three groups who are entitled to enjoy citizenship/ associate citizenship/naturalized citizenship in the Myanmar Citizenship Law and it is found that duties and rights are also set separately.
I would like to spotlight a point here based on analyses of the Law is that human rights, women rights and children rights that were not popular at that time were taken into consideration to be included in drawing and promulgating the 1982 Myanmar Citizenship Law. Like the suggestions of the representatives, our ministry is trying hard to amend the unpractical laws one after another since the new government took its office.
I would like to say that regarding the 1982 Myanmar Citizenship Law, plans are underway since early to amend some words and some words and fines and penalty of kyats in rules and regulations and bylaws which are inappropriate to the present time.
It is found that the one of the points included in the proposal of the representative to make a new legislation of Myanmar Citizenship Law which is appropriate to the present time as international organizations are going to invest in Myanmar and there may be relations with many foreign countries was documented.
The factor I would like to present here is that it is assumed that there is no need to take into account those who want to make investment in Myanmar to have a status of Myanmar citizens. The ministry has launched relaxation under the Visa Policy in Myanmar for them to easily move about in the country. The Visa on Arrival has been introduced since 1 June 2013 at Yangon International Airport for those who hold business visa from 27 countries. The arrival of visitors has become about ten times since then. Upon the request of other global nations, arrangements have been made for 22 more countries to be able to enjoy the Visa on Arrival scheme. More machines for inspecting passport visa are being installed depending on the allocated funds at Mandalay International Airport, and Visa on Arrival will soon be introduced at the airport. When the installation of necessary inspection machines is completed, there will be similar activities at Nay Pyi Taw International Airport.
Moreover, steps are being taken to transform some kinds of visa including Tourist Visa into E-Visa to ensure a swift flow of tourists in large number into the country. Some financial matters of the country start to be handled when remaining sanctions are lifted. This is some activities undertaken by the ministry for the convenience of investors. Meanwhile, the committee for implementing the Permanent Resident System is being established for the convenience of foreigners who want to engage in long term business in the country.
The Permanent Resident System will be introduced in line with the system being practiced internationally for businessmen to be able to reside in the nation. Some experts pointed out that giving a foreigner a status of citizen is a matter of national sovereignty. This matter is subtle and complex.
Myanmar shares border with five neighbouring countries. Geographically, the country is highly sensitive to national interest and security. And there is a saying that goes “The Earth cannot swallow a race to extinction, but another race can.” Therefore, with regard to the proposal of the Hluttaw representative over the abolition of Myanmar Citizenship Law and drawing of a new law, I would like to suggest him to exactly mention which chapter or section of the 1982 Myanmar Citizenship Law needs to be amended.
To amend the whole law calls for a wider discussion in the interest of the State and its people. It is not our attachment to present the point over amendment or non-amendment of the 1982 Myanmar Citizenship Law. We just present the seriousness and conformity of the law as it has been dealt with our ministry.
Being service personnel, we are responsible to abide by the law when it has been adopted and come into force with consent of the people. Hence, it is assessed that the proposal over the amendment of the 1982 Myanmar Citizenship Law is a matter to be seriously and widely considered.
As the Hluttaw representative mentioned that his proposal should be recorded, the Hluttaw announced that the proposal has been put on record. The case was stated in the 7-11-2012 issues of daily newspapers.
Therefore, we would like to urge the media concerned that wrongly stated the law which is the lifeblood of citizens to be serious about its statement as it could tarnish the image of the government and harm the interest of the State and the people.