doi: 10.1111/imig.

12532

The National Laws of Myanmar: Making of

Statelessness for the Rohingya
Archana Parashar* and Jobair Alam**

ABSTRACT

This article examines the legal status of the Rohingya in Myanmar by analysing relevant consti-
tutional provisions (of 1947, 1974 and 2008) and other major citizenship legislations including
the Citizenship Law, 1982. A doctrinal analysis demonstrates that: (i) the earlier Constitutions
and laws provided citizenship for the Rohingya (where they were identified as an ethnic minor-
ity); and (ii) their status has been changed gradually under the later constitutions and legislations
until recently, when they are regarded as neither minority nor citizen and rendered stateless by
the law. The role of legislation in disempowering the Rohingya is thus made explicit.

The Rohingya of Myanmar Rakhine State are considered as the world’s least wanted groups
(Amnesty International, 2017) whose marginalization continues unabated. Between August and
September 2017, over half a million Rohingya fled into Bangladesh after a “clearance operation”
carried out by Myanmar’s military (Perez and Hollister, 2017). Survivors have reported summary
executions, indiscriminate rape and the wholesale destruction of Rohingya villages. The UNHCR
classified these acts as “a textbook example of ethnic cleansing” (Safi, 2017). The UN Secretary-
General regarded the situation as “catastrophic” and “completely unacceptable” and called for a halt
to the military campaign in Myanmar and recognition of the right of return of all those who had to
leave the country (Nanji, 2017).
Many argue that the genesis of the crisis lies in the question of citizenship of the Rohingya.
Since the Burmese government does not accept the Rohingya as one of the countries’ “national
races,” a majority of the Muslims living in Rakhine are today de facto stateless (Haacke, 2016) and
living with a deep uncertainty about their status (Holliday, 2014). They are considered to be
migrants from Bengal who settled in Myanmar after the first Anglo-Burmese War and subsequent
British colonialization in 1824 (Seekins, 2017) and as such they are not eligible for full citizenship,
according to the 1982 Citizenship Law1 and various other metrics (Walton, 2017). Advocates for a
distinct Rohingya identity, in return, insist that their ancestors have been natives to Rakhine as
early as the 8th century, and merit recognition as an ethnic group of Myanmar and full citizenship
(Ruland, 2017). This article does not intend to resolve the debate on whether the Rohingya are
recent arrivals or not (apart from providing some narratives of such debates); rather, it aims to
explore the actual individual and group citizenship status of the Rohingya. This is because we
argue that citizenship status is exceedingly important, as it is the basis for the recognition of other
rights. In contrast, the absence of citizenship and statelessness brings about a situation of “lacking
the very right to have rights” (Arendt, 1968).
The article begins with a brief background of Rohingya, a literature review of their citizenship,
and examines their legal status under both the constitutions (the Constitution of the Union of

* Macquarie Law School, Macquarie University, Sydney, Australia

** University of Dhaka, Dhaka, Bangladesh

© 2018 The Authors

International Migration © 2018 IOM
International Migration
Published by John Wiley & Sons Ltd. ISSN 0020-7985
2 Parashar and Alam

Burma 1947, the Constitution of the Union of Burma, 1974, and the Constitution of the Republic
of the Union of Myanmar, 2008) and the related major citizenship legislations, including the Citi-
zenship Law, 1982, the earlier Union Citizenship Law, 1948 and the Union Citizenship (Election)
Law, 1948.2 Since those Constitutions and laws were adopted under the periods of: (i) Union of
Burma; (ii) Socialist Republic; and (iii) Union of Myanmar and the status of the Rohingya in each
time period depended upon what both the constitution and statute said at the same time, this article
discusses their status in each period of time, rather than treating constitutions and statutes sepa-
rately. It concludes that the earlier Constitutions and laws (adopted under the Union of Burma) had
provided citizenship status for the Rohingya, who were identified as an ethnic minority, but their
status has changed gradually under both the constitutions and the legislations (adopted under the
Socialist Republic and the Union of Myanmar) so that under the latest laws they are regarded nei-
ther as a minority nor as citizens.

BACKGROUND OF THE ROHINGYA

Myanmar is predominantly a Buddhist country. It has a total population of 58 million of whom 15

per cent practice Islam. The Rohingya are the Sunni Muslim and primarily live in Arakan region
where 35.6 per cent are Muslim Rohingya, 59.7 per cent are Buddhist and the remainder belong to
other religious groups (Alam, 2011). The Arakan massacres in 1942 involved communal violence
between the Rohingya and the Buddhists; from then on the region became increasingly ethnically
polarized (Christie, 1998). In 1962 the Ne Win Government defined 135 distinct ethnic groups3 as
legitimately entitled to live in Myanmar. Many observers dispute this number, seeing it as a “di-
vide-and-rule” tactic inherited from the British and designed to minimise the impact and presence
of the larger minority ethnic groups by splitting them into smaller components, and to prevent soli-
darity by lumping disparate groups together (Gravers, 1999). However, the classification of these
groups seems to depend upon whether or not a certain ethnic group lived in Myanmar before 1823
(Pre-British Burma Period). This is a key point of contestation and central to the argument of the
citizenship of the Rohingya, as the Burmese Government does not accept them as one of the coun-
try’s “national races” settled before 1823. In contrast, the Rohingya insist that their ancestors have
been natives to Rakhine as early as the 8th century (Topich and Leitich, 2013) and their numbers
increased in the 16th century when many Muslims settled there (Leider, 2013); therefore, they
merit recognition as an ethnic group and thus deserve full citizenship rights.
The evidence used by the Rohingya is factual and unwritten but commonly accepted by many,
except the Myanmar government, which argues that there is no historical evidence available. The
Rohingya claim that the earliest historical sources mentioning Muslim settlers date back to the late
16th century (Leider, 2013). To provide proof for a Rohingya ethnic identity, they refer to an arti-
cle published by Buchanan (1799). He mentioned Mohammedans, who have long settled in Arakan
and call themselves “Rooinga”. In the Chittagonian dialect, however, which the Muslim settlers
spoke, the name “Rohingya” means nothing but “Rakhine.” By contrast, the government argues
that it seems unlikely that the Muslims Buchanan met referred to a shared Rohingya identity, as
the name is not mentioned in other historical sources. In line with this view, many suggest that the
early Muslim settlers had largely assimilated to local Rakhine society and did not articulate a sepa-
rate ethnic or communal status. In the 1872 population census the British therefore simply recorded
them as the Arakan Muslims (Suaedy and Hafiz, 2015). In other documents they further distin-
guished between Burmese Muslims, who had inhabited the land prior to the arrival of the British
and Indian Muslims (Pugh, 2013). Myanmar historians claim that the Rohingya came either from
Chittagong, when the British colonial authorities encouraged labour migration during 1891–1931,
or from East Pakistan with the creation of Bangladesh in 1971 (Human Rights Watch, 1996).

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 The making of statelessness 3

However, resolving the debate on whether the Rohingya settled in Myanmar before 1823 is
beyond the scope of this article. The evidence is conclusive that the Rohingya are excluded from
the lists of ethnic groups. In 2014 a UN-backed national census was held, where the Muslim
minority group was initially permitted to self-identify as “Rohingya” but, after Buddhist nationalists
threatened to boycott the census, the government decided the Rohingya could only register if they
identified themselves as “Bengali”. This caused nearly one million people to remain uncounted in
Arakan (Galache, 2014) and currently there is no way of knowing how many Rohingya are there.

CITIZENSHIP OF THE ROHINGYA

Citizenship is the legal status of belonging. It is associated with an array of rights. Acquisition of
citizenship is legally regulated by each state independently, which follows from the principle of
state sovereignty (Ben-Porath and Smith, 2012). Citizenship represents a collective identity which
(identity) can be defined in more ethnicized, blood-based links or more civic and voluntarist ones
(Karolewski, 2009). In post-colonial countries in South East Asia, the concept of “indigeny” is
often constructed to distinguish the local inhabitants from outsiders (“others”) who are considered a
threat. In this sense, citizenship regimes are used primarily as an instrument of exclusion (Fee,
2013). Such exclusion may take place through legal means (e.g., refusal of naturalization and dif-
ferential rights of citizens and secondary citizens) or through discriminatory state practices (Tarling,
1999). In the worst cases this may lead to contestation of identity and eventual statelessness. The
Rohingya is a contemporary example in this regard (Pittaway, 2016). From this context, focusing
on the legal aspects of citizenship (Willis, 2014) and how the Myanmar law has treated Rohingya
citizenship through history (Cheesman, 2015a) can be the foundation from which to consider
whether a specific citizenship law (CL) could help address the entrenched issue of ethnic discrimi-
nation, and thereby, reduce ethnic tensions, violence and the displacement of so many people.
Thawnghmung (2016, p. 527) reveals how the narratives of both Rakhine Buddhists and Mus-
lims rely on the concept of “indigeneity” to assert their claims as citizens. She argues that, instead,
common ground could be leveraged to foster more pragmatic approaches to deep-seated communal
problems. But she does not discuss the citizenship issue from a legal perspective. With a different
focus, Tonkin (2014), questioning the legitimate claim to ethnicity, says that he has not found any
single reference to the term “Rohingya” in any documents recording the 124 years of British rule
in Arakan (1824–1948).4 He has no doubt, however, about the Burmese citizenship of Muslims in
Arakan after independence in 1948, who satisfied legal conditions under the 1947 Constitution and
who, in independent Burma, wished to be called “Rwangya” (Tonkin, 2015). Tonkin argues that
the 1982 CL has not excluded Arakan Muslims from citizenship. The 1982 Law, he writes, made
ethnic identity, that is, membership in a “national race” category, the primary basis for citizenship.
Belonging to a “national race” became “the gold standard” for membership in the political commu-
nity of “Myanmar”. But the discernible issue for us is that the Rohingya’s claims to membership
were rejected; the Rohingya ethnicity was not formally accepted in law as a pre-1823 indigenous
identity.
In another vein Kyaw (2017a) argues that policies and practices of successive Myanmar govern-
ments (from the late 1970s) have caused the now chronic statelessness of the Rohingya, who were
citizens of Myanmar until the first exodus in 1978. He finds the statelessness of the Rohingya more
de facto than de jure, since the real cause is lack of implementation of the 1982 law and of recog-
nition of citizenship of the Rohingya. In another paper, Kyaw (2017b) accepts that the Rohingya,
unlike the Kaman (the only recognized Muslim ethnic group in Myanmar), face an increasing tide
of social, political, and cultural demonization because their citizenship has not yet been recognized.
But how and when those rights were taken away is not discussed by him. Moreover, the citizenship

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4 Parashar and Alam

issue, discussed in another paper by Kyaw (2015) by analysing identity documentation policies and
practices, is distinct from the legal analysis that we undertake here.
Cheesman (2017) discusses the 1982 CL and argues that this law does not include specific sec-
tions to deny the Rohingya citizenship. Rather it provides for membership of one of the country’s
8 “national races” (Kachin, Karenni, Karen, Chin, Burman, Mon, Arakanese, Shan) as the primary
basis for citizenship along with other grounds. In another study Cheesman (2015b) argues that
Myanmar’s citizenship crisis is, like the question of Rohingya identity, a feature of the surpassing
political force of the national-race idea and without confronting the “national races” problem,
Myanmar citizenship will remain in crisis.
Topich and Leitich (2013) provide a contextual framework for further exploration of Myanmar’s
politico-legal and historical scenarios but without focusing on the legal issue of citizenship of the
Rohingya. Bemoaning the fact that legal scholars took their eyes off Myanmar for too long, Huxley
(2004) observes: “Myanmar law has died of neglect” (see Smith, 1991; Taylor, 2005; Crouch,
2014, p. 543). Kosem and Saleem (2016) agree that Rohingya citizenship being a state-societal and
ethno-territorial issue requires a comprehensive study.
Several Government and NGO reports also discuss the Rohingya citizenship issue. The Human
Rights Watch (HRW) published two reports (Human Rights Watch, 2012, 2013), President Thein
Sein’s established commission report following the June and October 2012 violence and the 2014
report of a 10-member commission. None of them however, calls for a review of the 1982 CL or
national legal framework of Myanmar bearing on the Rohingya citizenship.
It can be concluded that the Rohingya citizenship is discussed in major scholarship as an ancil-
lary matter of either security, Burmese nationalism, political discussion, forced migration, stateless-
ness and humanitarian crisis. Legal aspects of citizenship of the Rohingya under the Myanmar laws
also need to be discussed and this article seeks to do that.

LEGAL STATUS OF THE ROHINGYA IN MYANMAR

At the time of independence of Myanmar in 1948, the inhabitants of the country consisted of per-
sons of indigenous, mixed and foreign stock. The ethnic, linguistic and cultural heterogeneity of
the population means that the issue of national unity is a dominant political concern (Rotberg,
1998). Different political regimes have adopted different constitutions in 1947, 1974 and 2008. Ini-
tially the status of inhabitants as citizen or foreigner was partly defined by the Constitution; but
later on the task was entirely left to the Parliament to make the necessary laws. The following dis-
cussion analyses how these laws (both the constitution and the statutes) in three different periods,
have impacted the status of the Rohingya.
Union of Burma Period (1948–1962)

The Union of Burma was born on 4 January 1948. The civilian government that lasted from 1948
until the military coup of 1962, with a military interregnum in 1958–1960, has in many ways
drawn the future pathways affecting the citizenship of ethnic groups living in Myanmar (Aung-
Thwin and Aung-Thwin, 2013). The Constitution of the Union of Burma, 1947, the Union Citizen-
ship Act 1948 (UCA 1948) and the Union Citizenship (Election) Act, 1948 (UCEA 1948) promul-
gated during this period have impacted the status of the Rohingya.

The Constitution of the Union of Burma, 1947

The first Constitution of Myanmar, written while Myanmar was still under the British colonial rule,
came into force from 4 January 1948 (Panton, 2015). It has been suggested that by appearing to

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 The making of statelessness 5

grant specific rights to specific minorities and creating a quasi-federal system of ethnic states, this
constitution simultaneously politicized and rigidified the institutional mechanisms of minority and
central government relations.
In Myanmar the conflicting relationship between the Burmese majority and non-Burmese minor-
ity was very evident during the pre-independent Myanmar. Therefore, when Myanmar’s indepen-
dence was negotiated, ethnic minorities had expressed their desire for full independence from the
rest of Myanmar. However, this was not accepted by all the parties involved. So Myanmar was
born as a sovereign independent republic to be known as “the Union of Burma” within the mean-
ing of section 1 of this constitution; but the constitution tended to avoid any classification between
and among citizens.5 The preamble upholds equal rights for all, including a guarantee of equality
of status and social, economic and political justice for all citizens. However, Taylor (1979, p. 232)
argues that this constitution tended to exacerbate the national unity problem, because it defined
majority-minority relations in bipolar cultural and ethnic terms in many of its provisions.
In this constitution citizens are persons who can satisfy any of the four conditions: (i) belong to
an “indigenous race”(s 11(i)); (ii) have a grandparent from an “indigenous race” (s 11(ii))6 ; (iii)
are children of citizens (s 11(iii)); or (iv) were born in and lived in British Burma prior to 1942 (s
11(iv)). In conjunction the UCA 1948, s 3(1) further spells out that for the purposes of section 11
of the Constitution, the expression any of the indigenous races of Burma shall mean: (i) the Araka-
nese, Burmese, Chin, Kachin, Karen, Kayah, Mon or Shan race; and (ii) such racial group as has
settled in any of the territories included within the Union as their permanent home from a period
anterior to 1823 A.D. Hence, these two categories of people and those descended from them are
given recognition as citizens.
The significant issue for us is that the Rohingya were not declared as an “indigenous race”
expressly either in the constitution or in the UCA 1948. But the parliamentary government (1948-
1962) had officially declared Rohingya as one of the indigenous ethnic groups of Burma. The dec-
laration reads: “The people living in Maungdaw and Buthidaung regions are our national brethren.
They are called Rohingya. They are on the same par in status of nationality with Kachin, Kayah,
Karen, Mon, Rakhine and Shan. They are one of the ethnic races of Burma.”7 Although this is not
an official or legal declaration, other civilians and military officials endorsed this position and it
bears some political salience.
In the light of the above constitutional provisions four different interpretations are possible about
the status of the Rohingya:

First: they are not citizen of Myanmar if ss 11(i), (ii) and (iii) of the constitution are interpreted
in the light of the first condition of s 3 (1) of the UCA 1948. For “indigenous races” as specified
by this law includes only seven races and the Rohingya are not included within this list.
Second: they are citizen of Myanmar as per ss 11(i), (ii) and (iii) interpreted in the light of the
second condition of s 3(1) of the UCA 1948. For “indigenous race” is specified by this law as any
racial group that has settled in any of the territories included within the Union as their permanent
home from a period anterior to 1823 AD.
Third: they are citizen of Myanmar as per s 11 (iv), for they argue that they were born in and
started living in Myanmar prior to 1942.
Fourth: when they are examined in the light of the official declaration of the government they
are an indigenous race and like other races citizens of Myanmar. Moreover, they had been granted
many of the constitutional rights along with other ethnic groups.

Thus, in these interpretations of the provisions of Constitution of 1947, only the first interpreta-
tion excludes the claim of the Rohingya to citizenship. Moreover, the 1947 Constitution granted
many rights for the citizens of Myanmar.8 One argument is that, since between 1948 and 1962 the

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6 Parashar and Alam

Rohingya enjoyed these citizenship rights, they must have been considered as citizens.9 The basis
of such an assertion is that one of the basic principles of jurisprudence is that a right can only be
enjoyed by one who is and has been recognized as the subject of such right (Hopgood et al.,
2017).

The Union Citizenship Act, 1948

The UCA is the first law that deals with the citizenship issue in independent Myanmar. It did not
provide any definition of citizen and the question “who is a citizen of Myanmar?”, is answered by
reading together ss 10 and 11 of the Constitution of 1947 and s 4 of the UCA.
As mentioned earlier, s 11 of the constitution of 1947 gave the status of citizen of Myanmar to
the indigenous races of Burma but who are the indigenous races is answered by s 3 of the UCA. It
declares that “any of the indigenous races of Burma” shall mean the Arakanese, Burmese, Chin,
Kachin, Karen, Kayah, Mon or Shan race and such racial group as has settled in any of the territo-
ries included within the Union as their permanent home from a period anterior to 1823 A. D.
There are two schools of thought on the issue of who should be included in the term “indigenous
races”. The restrictive interpretation is that the term should remain confined only to the seven
groups mentioned in s 3 of this Act (Walton, 2008). But the expansive interpretation (Rogers,
2012) favours extending it to other unrecognized groups, including the Rohingya, on the basis that
this section is not exhaustive, as in its wording it contains the list of communities and the phrase
“and such racial group as has settled in”. Support for this interpretation may be gained from a few
decisions given by the Supreme Court of Myanmar. For example, in the case of Letto Law Danga
v. the Union of Burma (1959 BLR 30 HC) the court held that the indigenous races referred to in
section 11(i) (ii) and (iii) of the Constitution and in section 3 of the UCA 1948 are all “indigenous
races of Burma” who are closely connected by similar culture and ethnic characteristics.
The Rohingya argue that to a large extent they resemble (in many aspects) various other recog-
nized ethnic groups of Myanmar (McDaniel, 2017) and should be equally entitled to get the status
of an indigenous race of Myanmar. The opposition argue that the Rohingya, unlike indigenous
races speak in a dialect similar to the people of Chittagong (Bangladesh) and they are the recent
arrivals from Bangladesh (Howard-Hassmann and Walton-Roberts, 2015).
The Immigration authorities in the case of Hasan Ali and Meher Ali (Criminal Miscellaneous
Applications No. 155 of 1959) claims that the applicants were Pakistanis in appearance, had no
knowledge of the Burmese or the Arakanese languages and were unable to answer questions relat-
ing to events which had occurred in Arakan during the past decade and thus they are culturally and
linguistically similar to Bengali rather than Burmese. The SC (of Myanmar) did not reject the claim
but ruled that they were not pertinent in determining the matter at hand.
The SC held in Karam Singh v The Union of Burma (1956 BLR 25 SC) that under the Constitu-
tion of Burma and her citizenship laws, mere birth in Burma or residence in Burma at the time she
emerged as a sovereign independent state did not by itself confer Burmese nationality on a for-
eigner. But the Court accepted that s 4(2) of the UCA provides citizenship status to a person who
was himself born within the territories of the Union and both of whose parents were also born
within the said territories. The ancestors of the person must have for two generations at least made
any of the territories included within the Union their permanent home. Although the Act does not
define when a person is said to have made a place his permanent home as the emphasis is on the
ancestors making a permanent home and not the person. Bishna Lal v The Union of Burma (1959
BLR 3 HC) reaffirmed this.
The effect of the UCA on the Rohingya has been to narrow the possible scope of the constitu-
tion, as it makes it more difficult to claim citizenship by defining “indigenous race” without includ-
ing the Rohingya. S 4(2) of the UCA also restricts the scope of s 11(iv) of the 1947 Constitution

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 The making of statelessness 7

by requiring one to live for a period of two generations within the union as their permanent home.
Even though the UCA allows the acquisition of citizenship through naturalization,10 the grant of a
certificate of naturalization was at the discretion of the Minister, with no right of appeal. The Union
Citizenship (Election) Act, 1948 (UCEA) asks one to elect his citizenship subject to the satisfaction
of some conditions and is discussed next.

The Union Citizenship (Election) Act, 1948

The UCEA was enacted to make provisions for the election of citizenship by persons qualified to
do so; and if they failed to do so, the applicant would be regarded as having lost his citizenship.
The wordings of ss 3(a) and (b) of the UCEA repeat s 11(iv) of the Constitution of 1947. Two
conditions for a certificate of citizenship are that the applicant must be born within the territories
specified; and should possess the residential qualifications prescribed. The Rohingya argue that they
satisfy both conditions and should be granted a certificate of citizenship under the UCEA 1948 (J.
Alam, 2015) and thus have the eligibility to elect Myanmar citizenship under s 4(1) of the UCA.
However, they have failed to get any recognition as citizens under this Act for two reasons. Most
of them did not apply in the belief that they did not need to elect citizenship because they were cit-
izens by birth (RLF, 2016); and many who did apply were rejected on the ground of not satisfying
either of the conditions mentioned in this Act. Furthermore, as the issuance of a certificate was left
at the discretion of the Minister with the authority to decide the matter without showing any reason,
many Rohingya claimed that they were refused the issuance of such a certificate (Gibson et al.,
2016).

Socialist Republic Period (1962–1988)

The military coup d’etat on 2 March 1962 replaced the civilian AFPEL government and marked
the beginning of a new rule that continued up to 1988. The military government transformed into
an authoritarian system, which since 1974 has sought to disguise itself as a democracy (Moscotti,
1977). The new constitution of 1974, along with the Citizenship Law of 1982, promulgated in this
period brought about a drastic change of the status of the Rohingya as discussed next.

The Constitution of the Union of Burma, 1974

After the 1962 coup. the government of General Ne Win adopted the second constitution of Myan-
mar on 3rd January 1974 (Devi, 2014). This constitution defined Myanmar as a socialist democracy
but also demarcates seven ethnic minority states (Arakan, Chin, Kachin, Shan, Karenni, Karen and
Mon) and seven predominantly ethnic Burman (Myanmar) divisions (Tenasserim, Rangoon, Irra-
waddy, Pegu, Magwe, Mandalay and Sagaing). Critics describe this demarcation and division as a
major reason of conflict between the majority and minority, having a direct impact on the Rohingya
(Harding and Oo, 2017).
This constitution states that to gain Myanmar citizenship, one must be a person born of parents
who are both nationals of Myanmar or have been vested with citizenship according to existing laws
(art 145). The 1974 Constitution did not directly deny citizenship to the Rohingya but removed the
provision of the 1947 Constitution that permitted the Rohingya to gain citizenship on the basis that
either they had a grandparent from an “indigenous race” or lived in British Burma prior to 1942.
These two measures also resulted in denying the Rohingya any specific status collectively as one
of the nation’s indigenous ethnic groups (Ahmed, 2013).
Thus, the effects of the 1974 constitution are subtler than a straightforward taking away of citi-
zenship of a group. As the Rohingya were mentioned in the Parliamentary list of ethnic groups,

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8 Parashar and Alam

most of them would not have formalized their citizenship status. If they had formalized their status
they could have come under article 145, which states that a citizen is one born of parents both of
whom are nationals of the Socialist Republic of the Union of Burma or who are vested with citi-
zenship according to existing laws on the date this Constitution comes into force.
This is an important step in the process of dispossession, owing to two technicalities of law: (i)
it deprives the Rohingya of their group status; and (ii) it asks them to prove that both of their par-
ents are nationals of Myanmar rather than proving that their grandparents were so. Thus, a distinc-
tion is drawn between those persons who became citizens more than a generation back and those
who did not (Suryadinata, 1997). Furthermore, the realities of socio-political status of Rohingya
were not conducive to them complying with the constitutional requirement since many of them
would not have any information that they were required to do something to be recognized as citi-
zens of the state.

The Citizenship Law, 1982

In 1982, the CL repealed both the UCA and the UCEA.11 Unlike previous laws, the provisions of
the CL are based on jus sanguinis principle12 and creates three classes of citizens: Full, Associate
and Naturalized.
Full citizenship is primarily based on membership of the “national races” who are considered by
the State to have settled in Myanmar before 1823, the date of first occupation by the British (ss 3-
9). The state had full discretion to decide which groups were included as national races (Craig,
2016). Despite generations of residence in Myanmar (BROUK, 2014), the Rohingya are not listed
in these official indigenous races and are thus formally excluded from full citizenship. Such exclu-
sion of the Rohingya legitimizes and sanctions an historical view that, arguably, incorrectly
excludes large proportions of Rakhine State’s Muslim population from Myanmar’s history. More-
over, it promotes the view within Myanmar (both by the majority Buddhist and the government)
that Rohingya is a “made-up” ethnicity (Blomquist, 2016).
Associate citizenship is designed for those who do not qualify for full citizenship under this law,
but who were qualified and applied for citizenship under the UCA. The CL has provided in s 23
for the formation of a central body to determine such past applications. An application for citizen-
ship made under the UCA but not finalized would come under CL and on fulfilling the conditions
one could gain associate citizenship under the CL (ss 24–26).
However, the significant difference is that under the UCA one could have been granted citizen-
ship but may now get only an associate citizenship. Therefore, compared to the UCA, the CL is
technically more rigid in certain cases, as it can grant only an associate citizenship and there is no
provision of appeal if unsuccessful once (s 41 CL). Few Rohingya could gain citizenship under the
CL, as they could not meet the two requirements that they were both eligible for citizenship under
the 1948 Act and had applied for citizenship under that Act. Most were reportedly unaware of the
Act or did not understand its importance at that time. There were no state-run programmes to get
the people to apply for citizenship. It is not surprising, therefore, that the majority of Rohingya did
not make any application at that time and are now ineligible to qualify as associate citizen under
the CL. Thus, to disqualify Rohingya from being citizens for non-compliance with the earlier law
amounts to an injustice.
Naturalized citizenship is described in s 42 of the CL and it allows any person, with conclusive
proof that he has entered and resided in the State anterior to 4th January 1948 and their offspring
born within the State, to apply for naturalized citizenship to the Central Body (if they have not yet
applied under the UCA).
These provisions are of virtually no use to the Rohingya, for few Rohingya are in possession of
the necessary documents that would provide “conclusive evidence” of entry and residence prior to

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 The making of statelessness 9

4 January 1948 or could establish the necessary bloodlines as required by the law. To prove their
residence, they can use their family list, which names each member of the household, but the fam-
ily list does not indicate place of birth, which in effect prevents people from “furnishing conclusive
evidence” of birth in Myanmar as required by the CL (Tan, 2009).
Therefore, the Rohingya are not eligible to apply for citizenship under any of the three status
groups. Furthermore, a critical aspect of this law is that it gives overly wide powers to the govern-
ment to invalidate citizenship without due process of law. It establishes a government-controlled
“Central Body” (ss 67, 71) with wide powers to determine specific citizenship issues.13 An appeal
can only be made to the council of Ministers, which does not have to give reasons for its decisions
(s 71). Thus, while the formal law acknowledges that certain people are entitled to be citizens, it
then gives extreme discretion to the deciding authorities to reject such applications. The number of
stateless Rohingya who live in Myanmar (over 800,000) testifies that only some of their applica-
tions had been successful.
Furthermore, the CL is the linchpin for a whole set of policies and practices that discriminate
against Rohingya as non-citizens and leaves them extremely vulnerable to human rights abuses by
both government and non-government actors. It is a matter of conjecture, but plausible, that their
non-recognition as citizens also enabled the government to stand on the side of the majority Bud-
dhists, who are alleged to have committed ethnic cleansing, crimes against humanity and genocide
against the Rohingya with the complicity of the state. Furthermore, government-led initiatives alien-
ate ethnic Rohingya from Burmese Buddhist life.

Union of Myanmar Period (1988-Present)

In 1988, there were a series of pro-democracy demonstrations in Myanmar (Boudreau, 2004).

The large numbers of people involved in the demonstration signalled their antipathy for their
rulers. Subsequently, the State Law and Order Restoration Council was formed (Lea and Mil-
ward, 2001). In 2008 the government published a constitution as a part of its “Road Map to
democracy”. This military-drafted constitution again impacted the legal status of the Rohingya, as
discussed below.

The Constitution of the Republic of the Union of Myanmar, 2008

In the 2008 constitution, to be a citizen one has to prove either that one was born of parents “both
of whom” are nationals of the Republic of the Union of Myanmar or that one is already a citizen
according to law on the day this Constitution comes into force (art 345). This is a dramatic narrow-
ing-down of the grounds on which citizenship could be claimed in comparison to the past constitu-
tions. For example, any Rohingya is now required to prove either that his/her parents are citizens,
or that he/she is already a citizen. However, most Rohingya are not able to meet these require-
ments, as the majority of parents of the Rohingya do not hold any document to show that they are
nationals of the Republic.
The far-reaching impact of these changes in the 2008 Constitution became evident to the Rohin-
gya in the Myanmar national election, 2015, when the Union Election Commission (UEC) rejected
88 candidates for the election without giving specific reasons. More than a third of them were Mus-
lims, 28 from Rakhine state and so probably ethnic Rohingya. One of them was U Shwe Maung, a
sitting MP, who is ethnic Rohingya and was planning to stand as an independent candidate for this
election (Kipgen, 2016).
Some newspaper commentaries gave reasons that include: failing to meet a minimum age
requirement, ties to “unlawful associations” and residency requirement shortcomings. The Pyithu
Hluttaw Election Law, 2010 states that the candidate must have lived in Burma for the last

© 2018 The Authors. International Migration © 2018 IOM

10 Parashar and Alam

10 years and must be a citizen who was born of parents who are citizens (s 8). The Constitution of
2008 within the meaning of art 120 (b) also states that the candidate has to be a citizen who was
born of both parents who are citizens. Therefore, the assertion is that the Rohingya were not con-
sidered eligible for the candidature on this basis. But in contrast, the argument is made for exam-
ple, by the HRW that the action of the UEC was fundamentally flawed for two reasons: firstly, that
the Rohingya had run in prior elections without issue, and secondly, their families have lived in
Burma for generations (Human Rights Watch, 2015).
The 2008 Constitution and the CL are almost 30 years apart. For citizenship, both have empha-
sized that one needs to prove that they were born to parents who were citizens at the time of birth.
However, it is not clear whether both of them can work together when it comes to proving the sta-
tus of one’s grandparents or in 2018 does one have to prove that their grandparents were citizens
or that their great-grandparents were citizens?

CONCLUSION: THE USE OF LAW TO MAKE THE ROHINGYA STATELESS

The legal analysis above concludes that the earlier constitutions and laws provided citizenship sta-
tus for the Rohingya where they were identified also as an ethnic minority though not religious
minority strictly; and their status has been changed gradually both under the later constitutions and
legislations until recently when they are regarded neither as a minority group nor as citizens and
end up being stateless. It may be that there is no single legislation that has declared the Rohingya
to be stateless, but the cumulative effect of various constitutions and laws, as explained above, is
that the grounds for claiming citizenship have progressively narrowed and eventually closed for the
Rohingya.
A somewhat cynical response could be that a sovereign state can virtually make any law. The
positivist idea that parliaments can make any law, however, is always tempered by ideas that law
should be just and fair.14 It is also the case that international law recognizes the importance of
group rights and cultural identity.15 But these notions are not reflected in the CL, as its effect is to
make the Rohingya stateless. The 1961 Convention on the Reduction of Statelessness, as a leading
international instrument on how to avoid the incidence of statelessness, is considered the current
international standards. Even though it is not binding law (as Myanmar is not a state party to this
Convention) it gives effect to article 15 of the Universal Declaration of Human Rights 1948
(UDHR) which recognizes that “everyone has the right to a nationality.” The UDHR was a product
of a vote on a resolution in the United Nations General Assembly (UNGA), and Myanmar voted
for the UDHR and thus incurs a moral obligation not to act contrary to this declaration. Moreover,
the CL violates the Convention on the Rights of the Child, which Myanmar has ratified, and under
which States are obliged to “respect the right of the child to preserve his or her identity, including
nationality. . .” and for every child immediately after birth to have the right to acquire a nationality
(art 7). But, in Myanmar, children born to the Rohingya are automatically stateless accordingly to
that law.
The rise of extremism and islamophobia, from which the stateless Rohingya Muslim minority
suffer disproportionately, dominates transitional Myanmar today. Its roots lie in colonial demarca-
tions, Burmese nationalism-fuelled racism (Kyaw, 2016) and is manipulated by the largely coercive
military regime. Since the crisis lies in stripping off the citizenship of the Rohingya, the assumption
is that granting them citizenship would offer a permanent solution. The international human rights
community suggests a repeal or amendment of the CL and the relevant provisions of the 2008 con-
stitution. Alarmingly there is push-back within Myanmar in recent years relating to this decade old
advice and some argue that the CL is necessary for checking illegal immigration and for preserving
the purity of the Burmese nationality. In the wake of such controversy this article purports to

© 2018 The Authors. International Migration © 2018 IOM

 The making of statelessness 11

conclude that legal reform alone would not substantively improve the situation but is nevertheless
essential as a norm-setting device.

NOTES

1. This law is discussed broadly later in this paper.

2. There are other relevant laws but not discussed here, i.e. the Foreigner’s Act, 1864; the Burma Passport
Act, 1920; the Registration of Foreigner’s Act, 1940; the Burma Immigration (Emergency Provisions) Act,
1947; the Residents of Burma Registration Act, 1949.
3. The evidence shows more than 135 ethnic groups exist, each with its own history, culture and language
(Rieffel, 2010).
4. According to his findings, the British initially designated the Muslims as ‘Mohamedans’, but by the 1921
Census had decided on the name ‘Arakan-Mohadedans’ as a race category; this became ‘Arakan-Muslim’
in the 1931 Census but they never used the term ‘Rohingya’.
5. The Constitution provides in s 10 that: 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.
6. In this case if one of the parents or grand-parents of the person belonged to an indigenous race, the person
will be a citizen provided he was born within the territories of the Union. If he was born outside the
Union, he would not be a citizen under this sub-section (11 (ii)).
7. Radio speech by Prime Minister U Nu, 25 September 1954 at 8:00 PM; Public speech by Prime Minister
U Nu and Defence Minister U Ba Swe at Maungdaw and Buthidaung respectively on 3 & 4 November
1959.
8. These include: equality before law (s 13); equality of opportunity in public employment (s 14); personal
liberty (s 16); right to settle in any part of the Union (s 17); and rights to constitutional remedy (s 25).
9. The Rohingya enjoyed right to equality before law, right to express opinions, right to settle and reside in
the Union. During the general election, 1951, five Rohingya were elected to the Parliament of Burma,
including one of the country’s first female MPs, Zura Begum.
10. Section 7 of the Act clarifies that a foreigner who is not qualified to obtain a certificate of citizenship may
apply for a certificate of naturalization if he resides in the Union for 5 years continuously.
11. Elements of the UCA 1948 nonetheless remain relevant to the application of the CL 1982, e.g. s 23 of the
CL 1982, says applicants for citizenship under the UCA 1948 conforming to the stipulations and qualifica-
tions may be determined as associate citizens by the Central Body.
12. Jus sanguinis is a principle of nationality law by which citizenship is not determined by place of birth but
by having one or both parents who are citizens of the state.
13. For example, it is at liberty to determine what rights associate and naturalized citizens may enjoy and has
wide discretion to revoke such citizenship on grounds that include ‘disloyalty to the state by any act or
speech or otherwise. See The Citizenship Law 1982 ss 53, 35, 58.
14. For example, as a normative theory of legislation Bentham (1975) wrote that public good ought to be the
object of the legislator and general utility ought to be the foundation of his reasoning.
15. For example, the Convention against Genocide, prohibits destruction of national, ethnic, racial or religious
group.

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