Dr Aye Maung and the Indigenous Rohingya
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,
Nationality pertains to a person’s region of birth or origin. Nationality is also defined as the relation of a person with his state of origin. Nationality gives a person protection of the nation where he or she was born. It is a fundamental human right that facilitates the ability to exercise all the other rights.
The right to nationality without arbitrary deprivation is now recognized as a basic human right under international law. 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.” While issues of nationality are primarily within each state’s jurisdiction, a state’s laws must be in accord with general principles of international law.
A person with a country’s nationality is called a ‘national’. The legal definition of the term ‘national’ was mentioned in the Annex ‘A’ of ‘Aung San-Atlee Agreement’, which was signed on 27th January 1947. 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.
However, when Burma was going to get its independence, the question of who will remained as British subject and who will become the citizen of Independent Burma was arose. 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”.
Subsequently, 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.
Under Section 11 (i) of the Constitution of the Union of Burma (1947), it mentioned that, “every person, both of whose parents belong or belonged to any of the indigenous races of Burma”. The there a question was arose as; what is ‘indigenous race’ and who are ‘indigenous races’?
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.
However, under the section 3 of Burmese Citizenship law 1982, instead of the term indigenous it was used the term ‘national’.
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.’
This was mention at page 3 of the Memorandum to U Nu, the then Prime Minister of Union of Burma by elders of Maungdaw North on 10 May 1950, as follow: –