Myanmar’s discriminatory citizenship laws can and must be
immediately reformed
June 25, 2019
Myanmar’s 1982 Citizenship Law, which has fueled
widespread discrimination against various ethnic minority groups, is
irreconcilable with core rule of law principles and the State’s obligations
under international human rights law, the ICJ said today in a briefing paper.
The briefing paper Citizenship
Law and Human Rights in Myanmar: Why Law Reform is Urgent and Possible (available in English and Burmese) analyses the
legal framework for citizenship in Myanmar, and assesses certain provisions of
the 2008 Constitution relevant to citizenship as well as the 1982 Citizenship
Law.
This law embedded the current narrow definition of
citizenship, which generally links citizenship acquisition to membership of a
prescribed “national race.”
The resulting system enables and legitimizes
discrimination against various groups, particularly against persons of South
Asian or Chinese descent, members of whole ethnic groups, such as the Rohingya,
and also the children of single mothers.
“Enacted by unelected military governments, Myanmar’s
citizenship laws fuel widespread discrimination throughout the country,” said
Sean Bain, Legal Adviser for the ICJ.
“The government must act immediately to dismantle this
discriminatory system and to protect in law the human rights of all persons,”
he added.
The intentionally discriminatory character of this law,
and its equally discriminatory implementation, largely explain why many
long-term residents of Myanmar lack a legal identity (more than 25 percent of
persons enumerated in the 2014 Census).
The ICJ recommends three immediately achievable, concrete
areas of law reform to the Government: 1) legislative reform, including most
urgently of the 1982 Citizenship Law and the Child Rights Bill now being
considered by the parliament; 2) Constitutional reform, to protect the right of
citizens to full political participation; and 3) to institute interim measures
to address discrimination on the basis of race or ethnicity.
A review of the 1982 Law was recommended in 2017 by the
Government’s advisory commission chaired by the late United Nations
Secretary-General Mr Kofi Annan, but the Government has not yet demonstrated
any tangible progress on this.
“The government has the means at hand to get rid of this
discriminatory system, which has undermined the rule of law and blocked the
development of a pluralistic democracy. The government can and must implement
the recommendations of its own advisory commission. The pervasiveness of
discrimination cannot continue to go unaddressed, and there are no reasonable
legal grounds for further delay in initiating pathways to reform,” Bain said.
UN Member States, as well as International Finance
Institutions and UN agencies, must also ensure that assistance to the
Government of Myanmar enables necessary reforms, and does not, in any way,
entrench the existing discriminatory system.
Coinciding with the launch of this report, yesterday the
ICJ hosted an event in Yangon where a panel of Myanmar legal scholars and
researchers discussed the impact of current legal arrangements for citizenship
on human rights, and why law reform is both urgent and possible.
Representatives including from diplomatic missions, UN agencies, the Myanmar
National Human Rights Commission, a multilateral donor and Non-Government
Organizations attended the event.
Background
“Citizenship” is a legal concept describing an
individual’s relationship to the State. In contrast, “statelessness” is when
somebody does not have citizenship of any State. Terms such as “nationality,”
“race” or “ethnicity” are generally culturally embedded concepts, understood
differently by different people and in different contexts.
In many countries, particularly those with diverse
populations, the right to citizenship is defined broadly to include persons
with different ethnicities and even nationalities. In post-independence
Myanmar, the concept of being a “national” or “indigenous” had a generally
broad definition, allowing persons of different backgrounds to become citizens,
including but not limited to the descendants of persons who had immigrated to
Myanmar.
The 1982 Citizenship Law embedded in legislation the
concept of “national races,” and introduced a hierarchy of citizenship
categories that effectively institutes first-class and second-class citizens.
Under this system, many life-long residents of Myanmar have effectively been
rendered stateless, including members of entire ethnic groups, and children of
mixed ancestry.
This discriminatory system has fostered an environment
where crimes against humanity have taken place with absolute impunity.
Although section 347 of Myanmar’s 2008 Constitution
guarantees “any person to enjoy equal rights” and protections before the law,
other constitutional provisions restrict “fundamental rights” to citizens,
including the rights to health and to education. Even for citizens, political
rights are limited if a parent, child or spouse is not a citizen of Myanmar –
the most infamous example of this is Daw Aung San Suu Kyi, who is
constitutionally barred from the Presidency because her sons are foreign
citizens.
The formation in February of this year of a
Constitutional Amendment Committee also presents opportunities to expand the
narrow definition of “fundamental rights,” to ensure their compliance with the
constitutional guarantee of equality and protection before the law for “any
person” (section 347), and with the State’s international human rights law
obligations.
The Child Rights Bill, currently under consideration by
the parliament, also offers opportunities to ensure that Myanmar’s laws comply
with its treaty obligations, for example, under the UN Convention on the Rights
of the Child, including with respect to the right of a child to acquire a
nationality (citizenship), and the State’s related obligation to prevent
statelessness.
Read also:
ICJ convenes workshop on reforming 1982 Citizenship law: https://lnkd.in/gY9CYeb
ICJ materials on human rights law in Myanmar: https://lnkd.in/gMxwCeH
Download
Myanmar-Citizenship law reform-Advocacy-Analysis
Brief-2019-ENG (full report in English): https://lnkd.in/gb7-uuY
Myanmar-Citizenship law reform-Advocacy-Analysis
Brief-2019-BUR (full report in Burmese): https://lnkd.in/gxmj86k
Myanmar-Citizenship law reform-News-web story-2019-BUR
(full story in Burmese): https://lnkd.in/gC7uS9x
Contact
Sean Bain, ICJ Legal Adviser, sean.bain@icj.org