Section 11 of the Constitution provides for a certain separation of powers, including
the independence of the judiciary (although qualified), 54 and Chapter 6 of the
Constitution describes the jurisdiction of Myanmar’s courts. The Constitution
recognizes the right to redress in accordance with principles of judicial independence
and due process, 55 including the right to appeal judicial decisions, 56 and to seek
judicial review of administrative decisions by executive powers, including those of
ministers, civil servants and statutory bodies.57 Procedures established to implement
legislation must be in conformity with the Constitution. 58 Where constitutional
provisions appear to conflict with one another, the Constitutional Tribunal may, under
certain conditions, provide an authoritative interpretation; 59 alternatively,
constitutional reforms can clarify the law.
Myanmar’s Constitution recognizes obligations arising out of international treaties,
including human rights instruments binding on the country, so violations of the
State’s international human rights law obligations are also unconstitutional.60
4.2
The 1982 Citizenship Law
The 1982 Law is read together with three separate bylaws, the 1983 Citizenship
Procedures, that guide implementation of the law: Notification 13/83 (with respect to
full citizenship), Notification 14/83 (with respect to “associate” citizenship) and
Notification 15/83 (with respect to “naturalized” citizenship). Together these four legal
instruments contain an unwieldy total of 26 chapters, with 251 sections and 51 forms.
Governance
The 1982 Law authorizes the establishment of a ministerial-level “Central Body,” with
broad determinative powers, including for revocation and termination of citizenship.61
Its four members are the ministers of Defence, of Home Affairs, of Immigration and
Population and of Foreign Affairs (two of whom are military appointees).62 While the
Ministry of Immigration and Population is a key authority with respect to citizenship,
the Law and its procedures list a range of other State actors and authorities with
responsibilities, from Village Tract or Ward officials all the way up to the Union level.63
The President or Union Government (formerly “Council of State”) 64 has a range of
powers, including: “to decide whether any ethnic group is national or not” (section 4);
to confer or revoke citizenship of an individual (section 8); to set out procedures
(section 75); and to review decisions of the Central Body (section 70).65 With respect
to this, it is worth noting that the four members of the Central Body are also
members of the Union Government with relatively powerful portfolios.
Categories of citizenship
The 1982 Law introduced a three-tiered hierarchy of citizenship categories: (full)
“citizen,” “associate citizen” and “naturalized citizen”. Each category is based on
different criteria for citizenship and involves different legal privileges, protections and
penalties (criminal penalties in the case of “associate” and “naturalized citizens”).
Full citizenship is conferred under section 3 of the 1982 Law to persons considered to
be “nationals such as the Kachin, Kayah, Karen, Chin, Burman, Mon, Rakhine or
Shan” groups, which the 2008 Constitution broadly refers to as “national races”.66 Full
citizens enjoy legal rights and protections to the extent prescribed in Myanmar law.
Members of groups falling outside “national races”, but who are descendants of
families permanently living in Myanmar since before the first Anglo-Burmese War of
1824, may also qualify for full citizenship. 67 Those who are not members of an
officially designated ethnic group may also be full citizens, provided they were citizens
when the 1982 Law entered into force,68 or by meeting criteria listed in section 7.69
“Associate” and “naturalized citizenship��� categories generally apply to persons who
are not considered to be a member of a “national race” group, and/or who do not
have two parents who are citizens, and who therefore do not qualify as “citizens by
birth.” 70 The key distinction between these two categories is whether or not the
applicant, or their parent/s, had applied for citizenship under the 1948 Union
Citizenship Act prior to the enactment of the 1982 Law.71 Chapters 3 and 4 of the
1982 Law list ancestral scenarios that qualify or disqualify persons from these
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