Citizenship of the Rohingyas as Viewed by the Apex Courts of Myanmar

Mohammed Shahjahan:

It is common knowledge that the Rohingyas from the Arakan (renamed Rakhine) State of Burma (renamed Myanmar) sheltered in Bangladesh have been denuded of citizenship by the successive military and pseudo-civilian governments of Burma/Myanmar, effectively rendering them stateless; the racist Burma/Myanmar authorities have done so on the claim that the Rohingyas are not citizens of Burma/Myanmar; rather they are Bangladeshis who had migrated to Burma/Myanmar earlier. They tend to base their claim on the fact that the religion, language, customs, traditions and physical appearance of the Rohingyas differ significantly with that of the other communities in Burma/Myanmar. On the contrary, the Rohingyas themselves, independent researchers, historians, international organizations and the Bangladesh authorities contend that such claims by the Burma/Myanmar authorities are false, unfounded and illegal as the Rohingyas having been born and lived in Burma/Myanmar for centuries are bona fide citizens of Myanmar both de facto and de jure.

Against the backdrop of such contradictory assertions, one may refer profitably to relevant judicial precedents laid down and judgments passed by the Apex Courts of including the Supreme Court of Union of Burma/Myanmar. There are, in fact, a number of judgments passed by the then Supreme Court of the Union of Burma and other Courts of higher instances reported in the now defunct law journal Burma Law Reports (B.L.R) that lend support to the contention that the Rohingyas are citizens of Myanmar. Mention may in this connection be made of cases such as  Hasan Ali Vs. Secretary, Ministry of Immigration and National Registration and One reported in  1959 B.L.R (SC) 187, Asha Bi Bi & Abdul Rahim Vs. The Union of Burma reported in 1965 B.L.R (CC) 1, Peer Mohamed Vs. Union of Burma reported in 1965 B.L.R (CC) 51 and Gulbahar Vs. Union of Burma reported in 1965 B.L.R (CC) 811.

In the case of Hasan Ali Vs. Secretary, Ministry of Immigration and National Registration and One, the immigration authorities of Burma arrested Hasan Ali along with some 200 other Rohingyas from the district of Akyab in Arakan on the allegation that he and the other arrestees were citizens of the then East Pakistan illeaglly staying in Burma. While in detention meant for deportation to East Pakistan, Hasan Ali and Meher Ali filed a Writ of Habeas Corpus before the Supreme Court of the Union of Burma alleging, inter alia, that they were bona fide citizens of Burma; hence the Orders relating to their arrest and detention were illegal and they were liable to be set at liberty as citizens of Burma. In the Judgment delivered on 4 November, 1959, the Supreme Court of Union of Burma per Mr. Justice U Myint Thein, C.J. held, inter alia, that, “We note that the 1st respondent in his returns, has stated that the applicants are Pakistanis in appearance; that they have no knowledge of the Burmese or the Arakanese languages; and that they are unable to answer questions relating to events which had occurred in Arakan during the past decade. From these, he stated, the Immigration authorities were satisfied that the applicants are illegal immigrants of recent origin. It must be borne in mind that it is the President or the competent authority who must be satisfied. Further, in applying the tests which the 1st respondent has mentioned, section 4 (2) of the Union Citizenship Act must not be lost sight of. A person 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. Today in various parts of Burma there are people who, because of their origin and isolated way of life, are totally unlike the Burmese in appearance and who are unable to speak the language or speak of events which had occurred outside the limits of their habitation. They are nevertheless statutory citizens under the Union Citizenship Act. The applicants claim that they belong to that category. They may be right and therefore the opportunity of proving that they are, should be given to them. To deny them this opportunity would be a violation of their fundamental rights. The detention of Hasan Ali, son of Abbas Ali, and Meher Ali, son of Nazir Hussein, under section 7 (2) of the Burma Immigration Act under the orders of an Immigration Officer is unwarranted in law and therefore the orders under which they are detained in the Rangoon Central Jail are quashed. They will be released forthwith.”

In the case of Asha Bi Bi & Abdul Rahim, Asha Bibi and Abdul Rahim being Rohingya siblings from Arakan were prosecuted and convicted of being foreigners from the then East Pakistan and sentenced to pay fines of Kyats 100 each. What transpired during the course of the trial before the trying Magistarte were that Asha Bi Bi and Abdul Rahim were the children of one Sultan Mohamed, a Pakistani citizen; In 1958, Sultan Mohamed took both of his children on a tour to Pakistan where they stayed for two months; The names of Asha Bi Bi and abdul Rahim who were mere minors at that time were borne on their father’s Pakistani Passport. On their arrival back in Burma, Sultan Mohamed obtained permits for stay in Burma for himself and for his two children. Upon the expiry of the permits, Asha Bi Bi and Abdul Rahim did not renew the same claiming that they were Burmese citizens by birth and they were not required to be issued any permits for stay in Burma.Though the trying Magistrate found that Asha Bi Bi and Abdul Rahim were born in Burma and that their mother. and grandmother were of Burmese origin and for the said reasons, they were prima facie citizens of the Union of Burma by birth, he convicted them only for the reason that their names were borne out in the passport of their Pakistani father. Asha Bi Bi and Abdul Rahim filed an application for revision against the conviction before the Sessions Judge who recommended to the Chief Court that the conviction should be set aside. As the law stood in those days in Burma, the Sessions Judges were only to recommend reversal of judgments passed by Magistrates and the same were subject to confirmation by the Chief Court presided over by a Judge of Supreme Court of Union of Burma.While confirming the recommendation of the Sessions Judge, the Chief Court held, inter alia, that Asha Bi Bi and Abdul Rahim were minors when their Pakistani father took them out of Burma for a short stay; It was·not by their own volition that their names were carried on their father’s passport on their return; Nor did the children themselves apply for stay permits; A natural born citizen does not lose his citizenship and become a foreigner even if he takes out a foreign passport under compelling circumstances; Asha Bi Bi and abdul Rahim themselves never took out Pakistani passports nor registered themselves as Pakistani citizens with the Embassy of Pakistan in Rangoon now renamed Yangon.

In the case of Peer Mohamed Vs. Union of Burma, Peer Mohamed, a Rohingya from Arakan, was tried on the allegation that he was a foreigner from the then East Pakistan. Peer Mohamed defended himself on the averments that he was not a foreigner, rather he was a bonafide citizen of Burma by birth; he examined two witnesses in his favour before the trying Magistrate as well. He was nevertheless convicted of being a foreigner by the said Magistrate; he filed an application for Criminal Revision before the Sessions Judge Concerned; the Sessions Judge in turn recommended for setting aside the conviction.. Hence, the recommendation of setting aside the conviction of Peer Mohamed was adjudicated upon by the Chief Court, thus upholding the same and reversing the judgment of conviction impliedly recognizing Peer Mohamed as a citizen of Burma.

In the case of Gulbahar Vs. Union of Burma, Gulbahar, a Rohingya lady from Arakan was tried and convicted of being a foreigner by the Court of a Magistrate. Gulbahar stated during the course of the trial that she and her parents were born at village Panmraung under Akyab in Arakan and that her grandparents also settled and died there; she therefore was a statutory citizen of Burma. While the trying Magistrate accepted the fact that Gulbahar and her parents were born at village Panmraung and that she and her ancestors had been in Burma for three generations, he held that village Panmraung was in Chittagong of the then East Pakistan and therefore, Gulbahar must be deemed to be a foreigner and as such he convicted her and sentenced her to pay a fine of Kyats 30 in default whereof to undergo one month’s rigorous imprisonment. Being dissatisfied with the said order, Gulbahar filed an application for revision before the Sessions Judge concerned praying for setting aside the conviction and sentence passed against her by the lower Court. Upon perusal of the records including the Burma Gazetteer, the learned Sessions Judge came to the conclusion that village Panmraung was not in Chittagong, but in Akyab of Arakan; therefore, Gulbahar could not be deemed to be a foreigner, but she should be deemed to be a statutory citizen of the Union of Burma; he recommended to the Chief Court to set aside the conviction and sentence passed against Gulbahar.Concurring with the recommendation of the Sessions Judge, the Chief Court held, inter alia, that Gulbahar and her ancestors had been in Burma for 3 generations; she as well as her parents were born in a village in Arakan; therefore she could not be deemed to be a foreigner and as such she must be deemed to be a citizen of the Union of Burma.

As evident from the Judgments referred to herein above, the Apex Courts of Burma held, time and again, that those born in Burma are bona fide citizens of Burma by birth.Citizenship by birth being an internationally recognized principle was, not unlike courts of law worlwide, duly upheld by the Courts of law in Burma. What is more, the Supreme Court of Union of Burma made it abundantly clear that differences of religion, language and physical appearance do not make one liable to be stripped of citizenship. But the successive governments of Burma have, in stark contrast, acted quite illegally in terms of their dealings with the Rohingyas despite the fact that the Rohingyas are citizens of Burma by birth.

Surprising as it may sound, despite having to shoulder the heavy burden of the overwhelming number of Rohingya refugees and with Myanmar repeatedly claiming that the Rohingyas are Bangladeshis, the Bangladesh authorities have never been adequately vocal in their dealings with Myanmar with regard to the citizenship of the Rohingyas. So is it with the international organizations. Even in lawsuits relating to the Rohingyas now scattered the world over, there is virtually no reference to or reliance on these weighty court cases adjudicated upon by the Apex Courts of Burma. As a matter of fact, it is high time pressure was mounted on Myanmar placing relaince on favourable precedents from Myanmar’s own legal sources as Bangladesh, the United Nations Organization (UNO) and other actors concerned take on Myanmar as to the citizenship of the Rohingyas.

Mohammed Shahjahan: Advocate, Supreme Court of Bangladesh.

E-mail: shahjahanmohammed38@gmail.com