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Laws Promoting Injustice: Myanmar's Rohingya Conflict
We assume that the law will support justice. Yet, there are times in which the law might be the very obstacle not only preventing justice, but also promoting iniquity. This is the case in Myanmar, where the ethnic cleansing and extreme maltreatment of the Rohingya minority is currently taking place, but truly has taken place at least since 1982. While the general public and humanitarian organizations are focusing on the international law and human rights dimension of this crisis, we should instead focus on Myanmar’s domestic laws which in fact allow this ethnic cleansing causing mass migration and extreme maltreatment to occur with virtually no legal consequences. Although Myanmar’s 2008 constitution would make such actions towards citizens of Myanmar illegal, the Citizenship Act of 1982 does not include the Rohingya as citizens, and therefore the 2008 constitution does not protect them.
The Rohingya genocide, as Bangladeshi politician Abul Hassan Mahmud Ali refers to the crisis, is something that has been going on for a long time. (1) The earliest report by Human Rights Watch of a severe and concerted effort by the Myanmar government to remove the Rohingya was made in 2008. (2) On the other hand, the first reference to these actions as ‘ethnic cleansing’ was not until 2012. (3) Systematic discrimination, however, has been going on since around 1942 when Myanmar achieved independence from the British (4) and it has increased since the independence of Myanmar. This year, the world has finally taken more notice and called it for what it is: Zeid Ra'ad al-Hussein, the human rights chief of the United Nations, declared “I call on the government to end its current cruel military operation, with accountability for all violations that have occurred, and to reverse the pattern of severe and widespread discrimination against the Rohingya population.” The situation seems to be a textbook example of ethnic cleansing. (5) Only this year, due to the burning of hundreds of Rohingya villages, more than 500,000 Rohingya have had to migrate to Bangladesh. (6) Crossing the border with Bangladesh also brings myriad risks, from unmarked land mines to unsafe conditions making them susceptible to heinous acts such as starvation (7) and rape. (8)
Realizing the severity of the abuse and oppression occurring in Burmese dominion, the next step would be searching for a logical place to look for some way of preventing the human rights anarchy we see here, that place is the Constitution of Myanmar. The most recent constitution was ratified in 2008 under the military government during the nation’s “democratic transition phase”. This constitution has an amendment towards the right to “freely profess and practice religion subject to public order…” (9) This is true even though the constitution declares Buddhism as the official religion of its people, while recognizing Christianity, Islam, Hinduism, and Animism as other religions practiced by its people. If this is the case, the question of how these human rights, along with apparent constitutional violations, are still systematically occurring in Myanmar to a group of about 1.1 million people—and with no repercussions—remains.
The right to freedom of religion is a statement heard often by many people around the world in their respective communities. The United States, for example, has in its constitution an amendment recognizing the freedom of religion. The European Union also has a similar provision: Article 9 of the European Convention on Human Rights (ECHR), which recognizes the same right. However, there is one critical yet small difference when it comes to Myanmar’s constitution and the amendment which provides freedom of religion, The small difference is one word, citizen. In the ECHR, the word used in referring to the people the right applies to is “everyone”, not “citizen” or “European”, just “everyone”. (10) In the U.S. amendment, the word used is “the people”, which could be debatable to whom it is referring to, at least until 2008 when the supreme court in District of Columbia vs. Heller case quoted the U.S. vs. Verdugo-Urquidez case in 1990 - stating “persons who are part of a national community” adding “all members of the political community.” (11) In relation to Myanmar, the word they use, in the entirety of their constitution- referring to rights and duties- is “citizen”. The exact wording in the constitution is, “Every citizen is equally entitled to freedom of conscience and the right to profess and practice religion…” (12) Then, who is the “citizen”? This is not answered in their constitution. To know whom the rights applies to, we need to look into another law, that being specifically the Citizenship Law of 1982.
Myanmar has been a British colony, a military dictatorship, and is now as a parliamentary democracy. To give a short bit of background, during the British colonization, beginning in 1885, was when “the British oversaw the immigration of thousands of predominantly Muslim Bengali Indians as cheap labor to support the expansion of the colonial economic infrastructure”.(13) This should not discount the fact that there was a presence of Muslims in the territory before the British colonization, in fact they had their own kingdom located in that area called Mrauk-U (14). But the surge of Muslim immigration from India occurred after British colonization in 1824, when all of the territories were united, and Burma became considered as a province of British India. Therefore, all of the mobility of the Rohingya minority was considered internal movement, but the Burmese (of Buddhist majority) after independence thought otherwise.(15) This historical context proves itself extremely important when examining the Citizenship Law of 1982. In Chapter II titled “Citizenship” no. 3. this law states that nationals including the Kachin, Kayah, Karen, Chin, Burman, Mon, Rakhine, or Shan and any other ethnic group that has been in Myanmar as permanent residents from any time before 1823 are naturally and automatically Burmese citizens. (16) This is a huge problem. As addressed before the addition of the Muslim minority into the Burmese territory wasn’t until after 1824, and additional displacement to Burma occurred until 1885. Under the Burmese law, the Rohingya Muslims who have been living predominantly in the Rakhine state for decades turn out to not be citizens. Even if this were not the case, as a hypothetical, if the Rohingya Muslims were in Burma before 1823, in that same chapter, no. 4, mentions that “the Council of State may decide whether any ethnic group is a national or not.” (17) So, if this kind of ethnic cleansing was desired by the government, this law would permit it, by allowing them to negate citizenship to an entire ethnic group. A government has a duty to assure that everyone receives rights, including ethnic minorities, these rights include the right to nationality. This mentality is a standard in the realm of human rights and international law, nothing less is expected from every country, under no circumstances should a government have the option of not granting basic freedoms and rights to a group of people based on gender, race, color of skin, nor ethnicity. This perspective has been formalized in documents such as, “the Universal Declaration of Human Rights, the International Covenants, the Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Rights of the Child, the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities and other widely adhered to international human rights treaties and Declarations.”(18)
Now, understanding that the Rohingya Muslims are not citizens by law, consequentially the constitution does not apply to them. This means they are unprotected from receiving the very abuses the Burmese constitution prohibits, such as forced labor and religious persecution. From birth, the Rohingya in Myanmar are stateless, they have no nationality. According to international laws, there are many violations here. Not going into depth, one violation according to international law and basic human rights, thus the international community, needs to be addressed. The simple fact of being stateless is a direct violation of Article No. 15 in the Universal Declaration of Human Rights, “(1) Everyone has the right to a nationality. (2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.” (19) While in many situations lawyers and politicians are fighting about the human right of free speech and worship, in this humanitarian crisis, even the exceptionally basic human right of having a nationality is non-existent and has not been for years. The international community has reassessed the conditions of the Rohingya, but most importantly legal, and, in 2014, the United Nations General Assembly adopted a resolution calling on the Burmese government to amend their Citizenship law, precisely so that it can be inclusive and not discriminate against the Rohingya; the Myanmar government ignored the resolution. In the words of Brad Adams, the Asia director at Human Rights Watch “Burma’s discriminatory citizenship law not only deprives Rohingya of citizenship, but for decades has encouraged systematic rights violations. Amending the law to bring it in line with international standards is the first step for resolving this long-standing human rights abomination.” (20) Leaving a group of individuals stateless, whether it’s the Rohingya or another, in a sense abandons them. Their rights become unprotected and they are trapped, without much form of mobilization. It also impedes the access to basic needs and service, which enables a person to establish a civil life every human deserves.
The stateless Rohingya live in a state where the law allows for many injustices to be committed to them by military officials through the burning of entire villages, the infliction of bullet and knife injuries, beatings, and deprivation from food. (21) Meanwhile, on the other end, the laws in place also restrict them from having any political power through voting. The Rohingya children are great victims of this law as well, as the Myanmar government does not give citizenship by birth, thus even children who are lucky enough to receive a birth certificate are not allowed access to things many consider essential. Education is one of them, which is stated in the constitution as a basic need provided by the government, but that has been denied to children who have a Myanmar birth certificate, “None of the Rohingya that Human Rights Watch interviewed in late 1999 had children enrolled in school.” (22) It needs to be considered that this statistic was retrieved in 1999, much before the international community identified the situation in Myanmar as “ethnic cleansing”, hence the numbers most likely have not improved. Access to healthcare is just as limited, “In the last year, Rohingya have increasingly been denied access to public health care. Although there is no law that patients must produce identity documents, some government clinics have recently started turning away undocumented people.” (23) This issue isn’t solely a migration crisis, or as a short term complex emergency, in reality it is tremendously long-term issue that effects the daily lives of people who have near to no way of escaping it.
Burmese law has been set up over many decades to be purposefully and systematically discriminatory towards the Muslim ethnic minority referred to as Rohingya. To understand the rationale that came behind the implementation of these laws and the current constitution, there needs to be an understanding of history of the deeply rooted Buddhist majority in Burma. The political ties that the government has placed on the official religion needs to be considered as it has helped justify the systematic oppression of the one minority that seen as a threat by the majority: the Rohingya. Myanmar’s government has tried to maintain the active illusion of being a just and peaceful democracy to the general public, at least has been able to until around 2014—with even a Nobel Prize winning woman as State Counselor, akin to Prime Minister—even as such gravely inhumane laws exclude millions from the protection of the constitution. While international human rights law plays a significant role in the analysis of this case, a deeper inspection of the fundamental laws of Myanmar should be prioritized in order to facilitate comprehension of the legal roots of this humanitarian crisis. A political understanding of the democratic transition Myanmar is going through, or technically has already gone through, would allow for the understanding of why these laws haven’t been amended. The same State Counselor mentioned above along with the democratic party were constantly criticized by the Buddhist majority, who claim they will allow for the supposed predicted takeover of Myanmar by the Rohingya Muslims. Knowing this, desperately seeking majority support, a choice has to be made. That choice is the one that is continuing to allow the injustices against the Rohingya. Such a scenario is making it particularly difficult to pressure the government and State Counselor to reconsider. The perception in the domestic legal framework and in the political sensitivity due to a democratic transition will allow the international community to find effective ways of influencing Myanmar’s government into reforming their discriminatory Citizenship law and thus help bring to an end the systematic ethnic cleansing of the Rohingya.
Sources:
[1] Michael Safi, “Myanmar treatment of Rohingya looks like 'textbook ethnic cleansing', says UN, The Guardian, September 11, 2017, https://www.theguardian.com/world/2017/sep/11/un-myanmars-treatment-of-rohingya-textbook-example-of-ethnic-cleansing
[2] Human Rights Watch, Burma: End Abuses Against Rohingya, May 25, 2009, https://www.hrw.org/news/2009/05/25/burma-end-abuses-against-rohingya
[3] Human Rights Watch, Burma World Report: Events 2016, https://www.hrw.org/world-report/2017/country-chapters/burma
[4] Human Rights Watch, “Burma: II. Historical Background,” Human Rights Watch 12, no. 3: May 2000, https://www.hrw.org/reports/2000/burma/index.htm
[6] Eleanor Albert, “The Rohingya Crisis”, Council on Foreign Relations, October 04, 2017, https://www.cfr.org/backgrounder/rohingya-crisis
[7] Anadolu Agency, “Starvation will cause new fleeing of Rohingyas”, Yeni Safak, October 08, 2017, http://www.yenisafak.com/en/world/starvation-will-cause-new-fleeing-of-rohingyas-2795316
[8]Feliz Solomon, “Rohingya Women 'Raped at Gunpoint' in Burma Army Sweep for Suspected Jihadists, Report Says”, Time, October 28, 2016, http://www.time.com/4548834/rohingya-burma-myanmar-suu-kyi-maungdaw-rape/
[9] Constitution of the Republic of the Union of Myanmar (2008) Available at: http://www.ilo.org/dyn/natlex/natlex4.detail?p_lang=en&p_isn=79572&p_classification=01.01
[10] European Convention on Human Rights, Section 1, Available at: http://www.hrcr.org/docs/Eur_Convention/euroconv3.html
[11] “The Meaning(s) of ‘The People’ in the Constitution”, Harvard Law Review Vol. 126, no. 4, February 2013, https://harvardlawreview.org/2013/02/the-meanings-of-the-people-in-the-constitution/
[13] Religious Divinity Project, “Myanmar Country Profile”, Harvard Divinity School, 2016, Available at: https://rlp.hds.harvard.edu/myanmar
[18] “The Human Rights of Ethnic Minorities”, The People’s Movement for Human Rights Education, Accessed 2017. https://www.pdhre.org/rights/ethnicity.html#top
[19] The Universal Declaration of Human Rights, United Nations, December 10, 1948, http://www.un.org/en/universal-declaration-human-rights/
[20] Human Rights Watch, “Burma: Amend Biased Citizenship Law”, January 13, 2015, https://www.hrw.org/news/2015/01/13/burma-amend-biased-citizenship-law
[21] Human Rights Watch, “Burma: Rohingya Describe Military Atrocities”, September 8, 2017, https://www.hrw.org/news/2017/09/08/burma-rohingya-describe-military-atrocities
[22] Malaysia/Burma: Living in Limbo, “IV: The Rohingya’s Citizenship: The Root of the Problem”, Human Rights Watch, Vol.12, No.4, August 2000,
https://www.hrw.org/reports/2000/malaysia/index.htm#TopOfPage
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