Rohingyas are de jure citizens of Burma

By Aman Ullah

“Everyone has the right to a nationality,” and “no one shall be arbitrarily deprived of his nationality.” Universal Declaration of Human Rights

In January 1947, Aung San led a small delegation to Landon to discuss Burma’s political future. The outcome of this visit was ‘Aung San-Atlee Agreement’, which was signed on 27th 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 the ‘Annex A’ of that Agreement, it was mentioned that, ‘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’.

Thus, it defined that, ‘ 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’ is a national of Burma and he can be eligible to vote and to stand for the vote in the upcoming constituent election.

According to that Agreement, the Election was held in April 1947. But when the Aung San – Atlee Agreement was out, the government misunderstood the position of Muslims of Northern Arakan 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 April 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.

It is worth mentioning to that, the Muslims of Akyab district North constituency, on the ground of their being one of the indigenous communities of Burma, had also enjoyed the right to vote and the right to be elected at the election of 1936 as non-communal rural constituency. Mr. Ghani Markin returned on the votes of those Muslims as a Member of Legislative Assembly.

‘This decision and action of the government conclusively proved that these Muslims as a whole or in-groups are accepted as one of the indigenous races of Burma. And in this connection, it may be pointed out that the Akyab district North constituency is non-communal rural constituency and these Muslims of Arakan belong to this constituency’ remarked Mr. Sultan Ahemd.
The constituent Assembly election produced an overwhelming majority for the AFPFL. In June, it met and began writing the new constitution. On July 19, while Assembly was in recess, Aung San and six members of the Executive Council were murdered. The Governor immediately called upon Thakin Nu to succeed the fallen hero, reorganize the government and complete the writing of a new basic law.

After assassination of Burmese Leader Aung San in 1947, U Nu led AFPFL and signed independent agreement with British Primer Clement Atlee on 17th October, 1947, which was known as Nu-Atlee Agreement.

The Nu-Atlee Agreement was very important as to the determination of the nationality status of the peoples and races in Burma. Article 3 of the Agreement states:

“Any person who at the date of the coming into force of the present Treaty is, by virtue of the Constitution of the Union of Burma, a citizen thereof and who is, or by virtue of a subsequent election is deemed to be, also a British subject, may make a declaration of alienage in the manner prescribed by the law of the Union, and thereupon shall cease to be a citizen of the Union”.

According to the Clause 2 subsection (1) of the Burma Independence Act, 1947, “Subject to the provisions of this section, the persons specified in the First Schedule to this Act, being British subjects immediately before the appointed day, shall on that day cease to be British subjects:”Under the clause 1 subsection (2) of that Act, “the appointed day” means the fourth day of January, nineteen hundred and forty-eight.

As par the Clause 1 subsection (a) of schedules First Schedule, ‘persons who were born in Burma or whose father or paternal grandfather was born in Burma will lose their British Nationality after Burma has become independent.’ That’s means that, then they will no more to be subjects of Her Majesty Queen Victoria and will become independent citizens of independent Burma.
The Constitution for this sovereign Independent Republic was completed on 24 September 1947 by the constituent Assembly, which was drafted around the same time as the Universal Declaration for Human Rights. Following approval of the Constitution by the British parliament and signing of defense agreement, Burma became free on 4 January 1948. The people of Burma ceased the subjects of British and became independent citizens of independent country.

The 1947 Constitution provided safeguards for fundamental rights. Under this Constitution the people of Burma irrespective of “birth, religion, sex, or race” equally enjoyed all the citizenship rights including the right to express, right to assemble, right to association and unions, settle in any part of the Union, to acquire property and to follow any occupation, trade, business or profession.

The Section 10 of the 1947 Constitution of the Union of Burma also states: “There shall be but, only 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.”

Under Section 11 of the Constitution of the Union of Burma (1947), as shown below,
(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 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 there in 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.

These are the fundamental rights of a citizen according to the Constitution of Union of Burma, 1947.

Normally, there are two ways of Citizenships — the right of soil (jus soli) and the right of blood (jus sanguinis). . Most people are automatically citizens of the state in which they are born it is called Jus soli and If one or both of a person’s parents are citizens of a given state, then the person may have the right to be a citizen of that state as well, is called jus sanguinis. Many countries fast-track naturalization based on the marriage of a person to a citizen, this type of citizenship is called jure matrimonii and there are also citizenship may be acquired by adoption, legalization, naturalization (the proceeding whereby a foreigner is granted citizenship) or as a result of transfer of territory from one state to another.

Nationality (citizenship) according to the Annex-A of Aung San Atlee Agreement, Article 3 of Nu Atlee Agreement, Clause 2 of the Burma Independence Act, and Clause 1 subsection (a) of First Schedule are Jus soli while citizenship Under Section 11 of the Constitution of the Union of Burma (1947) is jus sanguinis.

According to the Mr. Sultan Ahmed, the then a member of the Constituent Assembly, ‘When section II of the Constitution of the Union of Burma was being framed, a doubt as to whether the Muslims of North Arakan fell under the section sub-clauses (1) (II) and (III), arose and in effect an objection was put in to have the doubt cleared in respect of the term “Indigenous” as used in the constitution, but it was withdrawn on the understanding and assurance of the President of the constituent Assembly, at present His Excellency the President of the Union of Burma, who when approached for clarification with this question, said, “Muslims of Arakan certainly belong to one of the indigenous races of Burma which you represent. In fact there is no pure indigenous race in Burma, and that if you do not belong to indigenous races of Burma, we also cannot be taken an indigenous races of Burma.” Being satisfied with his kind explanation, the objection put in was withdrawn.

Who are indigenous races was defined in Article 3 (1) of the Union Citizenship Act, 1948, which states: “For the purposes of section 11 of the Constitution the expression 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 territories included within the Union as their permanent home from a period anterior to 1823 A. D. (1185 B.E.)”. These two categories of people and those descended from them are automatic citizens. They did not require applying to court for naturalization.

In Article 4 (1) of that Act also mentioned that, “Any person, who under sub-section (i), (ii) and (iii) of section 11 of the Constitution, is a citizen of the Union or who, under sub-section (iv) of section 11 of the Constitution, is entitled to elect for citizenship and who has been granted under the Union Citizenship (Election) Act, 1948 a certificate of citizenship, or who has been granted a certificate of naturalization or a certificate of citizenship or who has otherwise been granted the status of a citizen under this Act, shall continue to be a citizen of the Union, until he or she loses that status under the provisions of this Act.

According to Dr. Aye Maung, the then Chairman of the Drafting committee of the 1948 Union Citizenship Act, ‘The clause in the 1948 Union Citizenship Act “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. (1185 B.E.),” was especially for the Muslims of Arakan.’

The Muslims of Arakan have a more than 1300 years old tradition, culture, history and civilization of their own expressed in their shrines, cemeteries, sanctuaries, social and cultural institutions found scattered even today in every nock and corner of the land. By preserving their own heritages from the impact of Buddhist environments, they formed their own society with a consolidated population in Arakan well before the Burmese invasions of Arakan in 1784.

Jacques Leider, in his article, ‘Between Revolt and Normality: Arakan after Burmese Conquest’ mentioned that, “we admit of a total population of Arakan of circa 250,000 in the time of (the Burmese) conquest, the country steadily lost up to 50% of its population. English observers estimated the Arakanese population at about 100,000 at the time of the British conquest.”

According to the British government document on the cultures and inhabitants of Arakan by the Secret and Political Department, Fort William dated 26th April 1826, “The population of Arracan and its dependencies Ramree, Cheduba & Sandaway does not at present exceed 100,00 souls, may be classed as — Mughs six tenths, – Mussalman three tenths, – Burmese one tenth, Total 100,000 Souls–.” As to Mr. Paton, Sub Commissioner of Arakan, who submitted this report from Akyab, “The extent of the Population has been tolerably well ascertained, proved a census taken by Mr. Robertson, and myself, and may be considered as approximating very nearly to the truth.”

That’s means that among the 100,000 souls; Mughs 60,000, Muslims 30,000 and Burmese 10,000. So in the date of conquest of Arakan by the British, there remained thirty-thousand Muslims and these thirty thousand Muslims were living there from before, now their descendants and successors have increased leaps and bounds.

No one in British Burma would dispute that there was a group of “Arakan Muslims” who could indeed trace their roots back to the 17th Century and even earlier and who were quite distinct from the Chittagonians and Bengali immigrants to Arakan.

According to the censuses of both 1921 and 1931, it has clearly mentioned that, ‘There was a Muslim community in Arakan, particularly in Akyab District, who prefers to call themselves Arakan-Mahomadens and were quite distinct from the Chittgonians and Bengali immigrants to Arakan.’ ‘According to Baxter report of 1940, paragraph 7, “This Arakanese Muslim community settled so long in Akyab District had for all intents and purposes to be regarded as an indigenous race.”

According to the census of 1931, it was mentioned that, the population of Arakan- Muslims was only 51,615, which was 30,000 in 1826. That’s mean that during the span of 105 years there were only 21,615 Muslims increased at the annual growth of 0 .52% only. Whereas, the population of Rakhine Buddhists became 548, 566, which were 60,000 in 1826, that is about 488,566 persons increased during the same period at the annual growth rate of 2.1%. Naturally the growth rate of Muslim population is always larger than Rakhine’s, therefore the growth rate of the Muslims at that period was not less than 2%. Then the populations of Arakan Muslims should be at least 239,960 in 1931 not merely 51,615.

Thus, these Muslims of Arakan are for all intents and purposes to be regarded as an indigenous race and are also a racial group who had settled in Arakan/Union of Burma as their permanent home from a period anterior to 1823 A. D. (1185 B.E.).

According to Article 19 of the Indo-Burma Agreement of 1941, the British Government of Burma recognized that “Indians who are born and bred in Burma, have made their permanent home and regard the future of their families as bound up with its interests are entitled to be regarded as having established a claim, if they wish to make it, to a Burma domicile, and therefore to the benefit of the Section 144 of the Burma Act 1935″.

Subsequently, Article 4 (2) of the Union Citizenship Act, 1948 (as amended up to 1960) states: “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 the Union.”

Moreover, any person who descended from ancestors who for two generations have made Burma their permanent home, and whose parents and himself were born in Burma, is a statutory citizen (1959 BLR (SC) 187), his descendants were also statutory citizens (1960 BLR (SC) 215), he is a citizen by birth and need not to apply for his citizenship (1965(CC) 128), and he is not bound to produce the certificate under Article 6(2) (1965 BLR (CC) 51).

At the times of succeeding censuses of the India so-called Indian Muslims born in Arakan was as bellow:-

Year Total Born in Arakan Percentage
1881 113, 557 42, 443 37.4%
1891 137, 922 75, 088 64.6%
1901 173, 884 97, 439 56%
1911 197, 990 151, 399 86.5%
1921 206, 990 155, 165 75%
1931 217, 801 167, 236 76.8%

Therefore, those who were born in Arakan and their descendants were statutory citizens of the Union, as they were citizens by birth they need not to apply for their citizenships and not bound to produce the citizenship certificate under Article 6(2) of the Union Citizenship Act, 1948.

Under all those laws and Acts mentioned above, the Muslims of Arakan who prefer to identify themselves in their own language as ‘Rohingya’ are not only one of the indigenous races of Burma but also full citizens of the Burma. Their citizenship matter was settled before the independence of Burma. They are not de facto citizens; they are de jure citizens of the country.

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 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.”