5.3.2

PREVIEW

1. What might be the relationship between a country’s constitution and its citizenship law?
2. What does it mean for a citizenship law to be unconstitutional?

The Constitution of the Republic of the Union of Myanmar of 2008 defines “citizens” in article 345 as persons who either:

• were already recognised as legal citizens when the 2008 Constitution was adopted; or
• were born by parents who are both “nationals” of Myanmar.

The word used for “citizens” in the 2008 Constitution is the same word used for citizens with CSCs in the Burma Citizenship Law of 1982. Narrowly interpreted, this may read to imply that full citizens are privileged and associate and naturalised citizens are excluded from accessing some rights declared in articles in the constitution.

The 2008 Constitution also uses the phrases “national races” and “national people”. However, the 2008 Constitution does not define which ethnic or other group is classified as “national”. Instead, the 2008 Constitution is often interpreted alongside the Burma Citizenship Law, which refers to certain ethnic groups considered to be indigenous in Myanmar. The 2008 Constitution is sometimes also interpreted together with lists of officially recognised “national races”, despite these not being mentioned in the 2008 Constitution and despite such lists having changed over time.

“People” is also a term used in the 2008 Constitution. It might refer to the same groups in the 2008 Constitution called “national races” or “national people”, or to everyone inside Myanmar.

Due to this variation in language in the 2008 Constitution, it has been difficult to clarify which rights in the constitution apply to everyone and which apply only to legal citizens, and if there is a difference in access to rights between different categories of citizenship.

Since the 2008 Constitution is superior to all other laws in Myanmar, it means that any rules within the Burma Citizenship Law that contradict the constitution cannot be considered valid. In other words, articles in the 2008 Constitution have a higher status than articles in the Burma Citizenship Law, especially if they contradict each other.

REFLECTION/DISCUSSION

1. Does the Burma Citizenship Law contradict the 2008 Constitution? How or why not?
2. If an article of the Burma Citizenship Law contradicts the 2008 Constitution, then it may be unconstitutional. Do you think any of the articles are unconstitutional? Why?
3. If any article in the Burma Citizenship Law is unconstitutional, how could it be changed? How would you rewrite that article?

Educator’s notes

Based on the exercise, learners should be able to identify the following articles in the Burma Citizenship Law to be unconstitutional:

Articles 2(b), (c) and (d) are unconstitutional because they establish three different categories of legal citizenship that have different levels of protection and rights. Differences in protection and rights violate articles in the 2008 Constitution that ensure equality and non-discrimination.

Articles 3 and 5 are discriminatory because they make legal citizenship automatic for members of certain ethnic groups, but not for other ethnic groups. These articles violate article 348 in the 2008 Constitution.

The articles in the Burma Citizenship Law that place restrictions on associate citizens and naturalised citizens, and make it easier to revoke these legal citizenship statuses, are specifically in violation of article 347 in the 2008 Constitution.

Articles 65, 66, 67, 68 and 70 are unconstitutional because they violate the separation of powers between the three branches of governments, as established in the 2008 Constitution.

Article 70(b) violates articles 295, 377 and 378 in the 2008 Constitution because article 70(b) grants the power to decide in appealed legal citizenship cases to the Council of Ministers, and not to the Supreme Court.

Article 71 is unconstitutional because it violates article 381 in the 2008 Constitution, which establishes that everyone should have access to redress by due process by law.