interpretation of this provision in Myanmar (see analysis in part five). 94 As noted
above, the four members of the Central Body are also part of the Union Government.
4.3
Other applicable laws, rules and regulations
As with most areas of law, the 1982 Law cannot be viewed in isolation, as it closely
intersects with constitutional provisions and other legislation, as well as the State’s
obligations under international human rights law. The law regulating citizenship is
particularly important because it can determine or influence the ability of individuals
to access a range of rights and services provided for in other laws. In Myanmar, laws
with particularly significant reference to citizenship arrangements tend to include
implicit or explicit references to the 1982 Law. For example, section 10 of the 1993
Child Law states that “Every child shall have the right to citizenship in accordance
with the provisions of the existing law” (drafts of the 2019 Child Rights Bill, seen by
the ICJ, contain a similar provision).95 Interpretations of this provision, including by
government officials, typically privilege the existing law – in this case the 1982
Citizenship Law – over the primary objective of the Child Law, which is to implement
Myanmar’s obligations under Convention on the Rights of the Child (see below).96
Various other instruments exist that are specifically related to citizenship, including
procedures and guidance. Their legal basis is generally unclear, and most are not
publicly available. These instruments include, inter alia, an oft-cited “list of 135”
ethnic groups which appears to have emerged in 1990,97 and the 2014 Immigration
Department Handbook, which compiles previously issued directives. 98 Terminologies
included within these instruments, such as the so-called “mixed-blood nationals”
category of citizens (Burmese: ေသြးေႏွာႏုုိင္ငံသားမ်ား / thwey naw naing nan tha mya),
are widely applied in practice throughout Myanmar,99 and are common vernacular of
officials at the highest levels of government.100 Procedures governing applications for
citizenship “scrutiny”, registration and the issuance or revocation of documentation,
including for National Registration Cards and cards associated with a “citizenship
verification process” are also understood to be informed and guided by these other
instruments, in addition to laws and bylaws.
5. Findings
5.1
The 2008 Constitution
The narrow framing of “fundamental rights” in Chapter 8 of the Constitution, and the
restrictions placed upon these rights, including for citizens, run contrary to principles
of non-discrimination, democratic governance and the State’s obligations under
international human rights law. This necessitates constitutional reforms to introduce a
more expansive definition of “fundamental rights” which includes greater protections
from discrimination regardless of a person’s citizenship status, consistent with
international law and standards including the obligations binding on Myanmar.
The Constitution generally limits “fundamental rights” to citizens. This is contrary to
the principle of equality before the law and equal protection of the law in section 347
of the same instrument, which states: “The Union shall guarantee any person
[emphasis added] to enjoy equal rights before the law and shall equally provide legal
protection.” For example, the rights to health, education and livelihoods, which the
Constitution guarantees, are restricted to citizens, in violation of the State’s
obligations to respect and to protect these rights under the International Covenant on
Economic, Social and Cultural Rights. The constitutional right to freedom of religion or
belief is also limited to citizens only, contrary to international human rights law,
including the UDHR. These illustrative examples demonstrate that restrictions are also
incompatible with rule of law principles of non-discrimination and non-arbitrariness.
Such restrictions should removed, to protect and guarantee in law the “fundamental
rights” of all persons within Myanmar, regardless of citizenship status, with exceptions
limited to specific political rights, consistent with article 21 of the UDHR.101
Constitutional provisions for persons recognized as citizens, that restrict “fundamental
rights” of a political nature on the basis of their familial relationship with a noncitizen, are also arbitrary and discriminatory. Perhaps the most glaring example of
this is section 59(f), which appears to have been designed specifically to exclude
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