Dec 16, 2019 | News
The Indian Police Service and the paramilitary Central Reserve Police Force must desist from the use of unlawful force and ill-treatment against demonstrators protesting the Citizenship (Amendment) Act, the ICJ said today.
The Indian authorities must also hold police and other public officials accountable for the human rights violations arising from these police actions, the ICJ added.
“The violent tactics that police have used over the past several days in Delhi, Uttar Pradesh, and other Indian states must cease and the government must address the legitimate concerns raised by the public about the discriminatory impacts of both the Citizenship Amendment Act and National Register of Indian Citizenship,” said Frederick Rawski, ICJ Asia Pacific Director.
“Any officials who use excessive force, including the unlawful or disproportionate use of pellet guns or tear gas cannons against unarmed student protestors, must be fully and impartially investigated and held accountable for their actions,” he added.
In its operations policing the demonstrations, the ICJ called on the authorities to abide by Indian Constitutional guarantees and international legal obligations on human rights.
These protect persons from torture and ill-treatment and the rights to freedom of expression, association and assembly.
They also require that police refrain from using unnecessary and disproportionate force and never use potentially lethal force unless to protect against an imminent threat to life.
The ICJ also called on the authorities to ensure that any person detained not be subjected to torture or other ill-treatment; have prompt and confidential access to counsel; and that those injured or otherwise provided with access to medical services.
“The police need to respond to prevent acts of violence, but they must use force only when strictly necessary. Potentially lethal force is only justifiably employed in self-defence or in defence of others against an imminent threat of death or serious injury,” said Rawski.
“If arrests need to be made, they must be done without exception in accordance with the law, respecting the rights of detainees to have access to legal counsel, to be free of torture and other ill-treatment of any kind, and to receive needed medical treatment,” he added.
The ICJ said that the authorities must undertake prompt, independent, impartial and thorough investigation of all allegations of unlawful use of force, with a view to holding accountable any responsible authorities and providing an effective remedy and reparation to victims.
Background
In response to the passage of the Citizenship (Amendment) Act, 2019, protests erupted all over the country, including in Assam, Tripura, Meghalaya, Arunachal Pradesh, Delhi, West Bengal, Kerala, and Hyderabad.
In Delhi and Uttar Pradesh, yesterday, members of the police and Central Reserve Police Force forced their way onto the campuses of Jamia Milia University and the Aligarh Muslim University in response to protests against the Citizenship (Amendment) Act, 2019.
At Jamia Milia University, the police and Central Reserve Police Force used tear gas cannons upon students who had been reportedly protesting peacefully. Police entered the university library and beat students who were there studying for their exams. The police detained (and subsequently released) some 50 students. Some reported being beaten while in detention, held for over six hours in a locked police station, and denied access to lawyers and family. Medical attention was also reportedly denied to some injured students.
At Aligarh Muslim University, the police and Central Reserve Police Force reportedly demolished the gates, and used tear gas, pellet guns, and lathi (wooden sticks) charge. They were said to have entered student hostels, wherein they reportedly caused damage to one room which had students inside it. According to a lawyer at the University, at least one’s student whereabouts is unknown and some 50 students and others have reported been injured, some severely. Some were reportedly taken to the hospital by the police.
The Citizenship (amendment) Act, 2019 amends the Citizenship Act, 1955, which governs questions of citizenship and aspects of lawfulness of migration status in India. The Act gives protected status to Hindu, Sikh, Jain, Parsi, Buddhist and Christian migrants from Pakistan, Afghanistan and Bangladesh, all Muslim-majority countries, who entered India on or before 31 December 2014. Similarly situated Muslims are categorized as “illegal migrants”.
The Bill provides to the above-mentioned religious communities and countries an expedited route of citizenship giving them the opportunity to be eligible for citizenship by naturalization if they have lived or worked in India for six years, as opposed to twelve years, as otherwise required. The Bill controversially excludes from its ambit certain ethnic and religious groups, such as Muslims, in violation of international law and standards protecting against discrimination.
To download the full statement with additional background information, click here.
Contact
Maitreyi Gupta, ICJ India Legal Adviser, t: +91 77 560 28369 e: maitreyi.gupta(a)icj.org
Frederick Rawski, ICJ Asia-Pacific Director, t: +66 64 478 1121; e: frederick.rawski(a)icj.org
Dec 11, 2019 | News
The ICJ today condemned The Citizenship (Amendment) Bill 2019 passed by the Rajya Sabha (upper house of the Indian Parliament) on 11 December 2019, after the Lok Sabha (lower house of the Parliament) adopted it on 9 December.
The ICJ calls on India to reconsider and repeal, or substantially amend, the Bill to bring it in line with international legal obligations and Indian Constitutional principles.
“The implementation of this proposed legislation would violate core principles of non-discrimination, equal protection of the law and freedom of religion, guaranteed under international law and the Indian Constitution,” said Frederick Rawski, ICJ’s Asia Director.
The Bill amends the Citizenship Act, 1955, which governs questions of citizenship and aspects of lawfulness of migration status in India. While it purports to provide protection and shelter to religious groups such as Hindus and provides them paths to citizenship, it excludes from its ambit certain religious groups such as Muslims.
The Bill gives protected status to Hindu, Sikh, Jain, Parsi, Buddhist and Christian migrants from Pakistan, Afghanistan and Bangladesh, all Muslim-majority countries, who entered India on or before 31 December 2014. Similarly situated Muslims are categorized as “illegal migrants”.
Furthermore, the Bill provides to the above-mentioned religious communities and countries an expedited route of citizenship giving them the opportunity to be eligible for citizenship by naturalization if they have lived or worked in India for six years, as opposed to twelve years, as otherwise required.
“The Citizenship (Amendment) Bill creates two tiers of citizenship and migration status in India based on religion, with Muslims relegated to the lower end,” added Rawski. “This Bill, which entrenches discriminatory practices into law, must not be implemented unless substantially amended to provide for equal protection for persons of all religions or other status.”
The legal framework for citizenship identified by this Bill is incompatible with bedrock rule of law and democratic principles. It is highly discriminatory and arbitrary, and manifestly fails to satisfy the State’s obligations under international human rights law, including the International Covenant on Civil and Political Rights (ICCPR), to which India is a party.
The arbitrary inclusion of some groups while excluding others violates Article 14 of the Indian Constitution and Article 26 of the ICCPR. India’s international obligations require that its regulation of citizenship under domestic law be compliant with the principle of non-discrimination, equality before the law, and equal protection of the law without discrimination on the grounds of, inter alia, race, religion, or ethnic or national origin. This Bill, which provides for differentiated criteria for citizenship and other legal protection based on membership of religious group, complies neither with international law nor Indian constitutional law.
The arbitrary inclusion of some groups while excluding others would only be permissible under Article 14 of the Indian Constitution and Article 26 of the ICCPR if the classification is founded on an intelligible differentia between the group excluded and the group that is included, and (ii) the differentia has a rational relation to the objects sought to be achieved by the Act.
The Bill claims religious persecution as the ground of reasonable classification, but then arbitrarily excludes several similarly situated and widely persecuted religious minorities such as Ahmediya Muslims and Shia Muslims from Pakistan and Bangladesh, Rohingyas from Myanmar, Hazaras from Afghanistan from its protective ambit. It therefore does not meet these criteria under the Indian Constitution and international law.
The adoption of the Bill comes as the Ministry of Home Affairs of the Indian Government issued a directive on August 8, 2017 to state governments to “identify and deport” 40,000 Rohingya refugees from Myanmar, which has led to deportation of 7 Rohingya men to Myanmar already.
In addition, the Indian Government has indicated that it will pursue nationwide National Register of Indian Citizens, which will likely exclude numerous people, many also Muslim, who should be recognized as Indian Nationals. A similar exercise undertaken in Assam earlier this year was an arbitrary and discriminatory process that rendered some 1.9 million people stateless. This violates international law and standards which protects the right to nationality and safeguards against statelessness.
Contact
Frederick Rawski, ICJ Asia-Pacific Director, t: +66 64 478 1121; e: frederick.rawski(a)icj.org
Maitreyi Gupta, ICJ India Legal Adviser, t: +91 77 560 28369 e: maitreyi.gupta(a)icj.org
Sep 6, 2019 | News
The ICJ, along with 124 other international and domestic civil society groups from around the world have condemned the actions of Indian government in publishing an incomplete and discriminatory Assam National Register of Citizens (NRC) on 31 August, 2019.
The NRC excludes some 1.9 million people – nearly 6 percent of the population of Assam – thereby rendering them at risk of statelessness. The statement points to violations of rights to equality and non-discrimination, as the process has disproportionately affected Muslims of Bengali descent, undocumented women and children as well as other minorities.
The groups call on India to take measures to redress the situation in a non- discriminatory and non-arbitrary manner, with full regard to due process rights and a commitment to protect the right to a nationality and to avoid statelessness of all long-term residents and their children.
Arbitrary deprivation of nationality is a human rights violation, which undermines the enjoyment of the human rights of those affected and their ability to participate fully in society. International law prohibits the arbitrary deprivation of nationality and obliges States to avoid statelessness, while guaranteeing the right of every child to acquire and preserve their nationality and to be protected from statelessness.
In 2015, the Assam state government, pursuant to a Supreme Court decision, announced it would initiate a process of updating the NRC, requiring every person in Assam who recognized themselves as an Indian citizen, to submit proof of their ancestry (or birth) in the country pre-dating 1971, the year that Bangladesh was formed. The act of requiring individuals to prove their citizenship by providing documentary evidence dating back over 50 years, and excluding applicants on the basis of their inability to fulfill this evidentiary burden, has led to arbitrary deprivation of nationality, contrary to Article 15 of the Universal Declaration of Human Rights.
Further, poor birth registration rates, despite an obligation under Article 7 of the Convention of the Rights of the Child to immediately register every birth has denied numerous applicants of a critical piece of evidence to establish their citizenship. Similarly, many people who possessed the required documents, have nonetheless been penalized due to administrative errors.
Despite repeated calls to action by UN human rights authorities, India has refused to reverse the process and other States have done little to press the Indian government to reverse course.
Those excluded from the list must appeal within 120 days to Foreigners Tribunals (FT), a quasi-judicial institution mandated to determine citizenship. In essence, this implies that the government already considers those excluded from the NRC to be foreigners, and not Indian citizens.
Find the full statement, endorsed by the ICJ and 124 other international and domestic civil society groups from around the world here: https://files.institutesi.org/cso-joint-statement-on-assam-nrc.pdf
Contact:
Maitreyi Gupta (Delhi), ICJ International Legal Adviser for India, t: +91 7756028369 e: maitreyi.gupta(a)icj.org
Frederick Rawski, ICJ Asia-Pacific Director, t: +66 64 478 1121; e: frederick.rawski(a)icj.org
Jun 25, 2019 | News
Myanmar’s 1982 Citizenship Law, which has fueled widespread discrimination against various ethnic minority groups, is irreconcilable with core rule of law principles and the State’s obligations under international human rights law, the ICJ said today in a briefing paper.
The briefing paper Citizenship Law and Human Rights in Myanmar: Why Law Reform is Urgent and Possible (available in English and Burmese) analyses the legal framework for citizenship in Myanmar, and assesses certain provisions of the 2008 Constitution relevant to citizenship as well as the 1982 Citizenship Law.
This law embedded the current narrow definition of citizenship, which generally links citizenship acquisition to membership of a prescribed “national race.”
The resulting system enables and legitimizes discrimination against various groups, particularly against persons of South Asian or Chinese descent, members of whole ethnic groups, such as the Rohingya, and also the children of single mothers.
“Enacted by unelected military governments, Myanmar’s citizenship laws fuel widespread discrimination throughout the country,” said Sean Bain, Legal Adviser for the ICJ.
“The government must act immediately to dismantle this discriminatory system and to protect in law the human rights of all persons,” he added.
The intentionally discriminatory character of this law, and its equally discriminatory implementation, largely explain why many long-term residents of Myanmar lack a legal identity (more than 25 percent of persons enumerated in the 2014 Census).
The ICJ recommends three immediately achievable, concrete areas of law reform to the Government: 1) legislative reform, including most urgently of the 1982 Citizenship Law and the Child Rights Bill now being considered by the parliament; 2) Constitutional reform, to protect the right of citizens to full political participation; and 3) to institute interim measures to address discrimination on the basis of race or ethnicity.
A review of the 1982 Law was recommended in 2017 by the Government’s advisory commission chaired by the late United Nations Secretary-General Mr Kofi Annan, but the Government has not yet demonstrated any tangible progress on this.
“The government has the means at hand to get rid of this discriminatory system, which has undermined the rule of law and blocked the development of a pluralistic democracy. The government can and must implement the recommendations of its own advisory commission. The pervasiveness of discrimination cannot continue to go unaddressed, and there are no reasonable legal grounds for further delay in initiating pathways to reform,” Bain said.
UN Member States, as well as International Finance Institutions and UN agencies, must also ensure that assistance to the Government of Myanmar enables necessary reforms, and does not, in any way, entrench the existing discriminatory system.
Coinciding with the launch of this report, yesterday the ICJ hosted an event in Yangon where a panel of Myanmar legal scholars and researchers discussed the impact of current legal arrangements for citizenship on human rights, and why law reform is both urgent and possible. Representatives including from diplomatic missions, UN agencies, the Myanmar National Human Rights Commission, a multilateral donor and Non-Government Organizations attended the event.
Background
“Citizenship” is a legal concept describing an individual’s relationship to the State. In contrast, “statelessness” is when somebody does not have citizenship of any State. Terms such as “nationality,” “race” or “ethnicity” are generally culturally embedded concepts, understood differently by different people and in different contexts.
In many countries, particularly those with diverse populations, the right to citizenship is defined broadly to include persons with different ethnicities and even nationalities. In post-independence Myanmar, the concept of being a “national” or “indigenous” had a generally broad definition, allowing persons of different backgrounds to become citizens, including but not limited to the descendants of persons who had immigrated to Myanmar.
The 1982 Citizenship Law embedded in legislation the concept of “national races,” and introduced a hierarchy of citizenship categories that effectively institutes first-class and second-class citizens. Under this system, many life-long residents of Myanmar have effectively been rendered stateless, including members of entire ethnic groups, and children of mixed ancestry.
This discriminatory system has fostered an environment where crimes against humanity have taken place with absolute impunity.
Although section 347 of Myanmar’s 2008 Constitution guarantees “any person to enjoy equal rights” and protections before the law, other constitutional provisions restrict “fundamental rights” to citizens, including the rights to health and to education. Even for citizens, political rights are limited if a parent, child or spouse is not a citizen of Myanmar – the most infamous example of this is Daw Aung San Suu Kyi, who is constitutionally barred from the Presidency because her sons are foreign citizens.
The formation in February of this year of a Constitutional Amendment Committee also presents opportunities to expand the narrow definition of “fundamental rights,” to ensure their compliance with the constitutional guarantee of equality and protection before the law for “any person” (section 347), and with the State’s international human rights law obligations.
The Child Rights Bill, currently under consideration by the parliament, also offers opportunities to ensure that Myanmar’s laws comply with its treaty obligations, for example, under the UN Convention on the Rights of the Child, including with respect to the right of a child to acquire a nationality (citizenship), and the State’s related obligation to prevent statelessness.
See also
ICJ convenes workshop on reforming 1982 Citizenship law
ICJ materials on human rights law in Myanmar
Download
Myanmar-Citizenship law reform-Advocacy-Analysis Brief-2019-ENG (full report in English)
Myanmar-Citizenship law reform-Advocacy-Analysis Brief-2019-BUR (full report in Burmese)
Myanmar-Citizenship law reform-News-web story-2019-BUR (full story in Burmese)
Contact
Sean Bain, ICJ Legal Adviser, sean.bain(a)icj.org
Jun 24, 2019 | News
The ICJ convened a half-day panel discussion today in Yangon, Myanmar, to discuss national laws governing citizenship, and outline how, throughout the country, they have a discriminatory impact on people’s enjoyment of their human rights.
The event also provided the opportunity to introduce the ICJ’s new legal briefing Citizenship and Human Rights in Myanmar: Why Law Reform is Urgent and Possible
ICJ legal researcher Ja Seng Ing and legal adviser Sean Bain kicked off the event by noting that Myanmar’s legal framework for citizenship – enacted by unelected military governments – fuels widespread discrimination against members of ethnic minority groups throughout the country.
Bain highlighted the incompatibility of the domestic legal framework governing citizenship in Myanmar with core rule of law principles and with the State’s obligations under international human rights law, including the Convention on the Rights of the Child.
He presented the ICJ’s practical recommendations for law reform, outlined in the ICJ’s new legal briefing, including with respect to the 1982 Citizenship Law and the 2008 Constitution, and to the Child Rights Bill currently under consideration by Myanmar’s national parliament.
Senior Advocate U Ohn Maung, a lawyer with decades of experience supporting access for members of minority groups to the official documentation often necessary to obtain even basic services, emphasized that citizenship in Myanmar should be a more inclusive concept, reflective of its pluralistic, multi-ethnic demography.
Daw Zarchi Oo and Daw Su Chit shared the findings of independent civil society research.
They highlighted various groups including: migrants and migrant workers; individuals belonging to sexual and/or gender minorities; single mothers; the children of fathers who are foreign nationals or who are estranged from their fathers; and people living with disabilities, who are all adversely impacted by current legal arrangements for citizenship and by their discriminatory implementation.
Daw Zarchi Oo also spoke about her own past experience of being stateless, and Daw Su Chit elaborated on her work with civil society and others to develop a gendered analysis of the impact of discriminatory citizenship laws in Myanmar.
Around 60 participants, including from domestic civil society, the legal community, international non-government organizations, the Myanmar National Human Rights Commission, the diplomatic community and others joined this event, and participated in the discussions.
The 1982 Citizenship Law embedded the current narrow definition of citizenship, which generally links its acquisition to membership of a prescribed “national race.”
Many of the 2008 Constitution’s provisions on “fundamental rights” are restricted to citizens only, with a result being that the State generally does not recognize the human rights of persons who do not qualify as citizens under domestic law, or are otherwise excluded due to the laws’ discriminatory implementation.
The intentionally discriminatory character of the 1982 Law, and its discriminatory implementation, largely explains why many long-term residents of Myanmar lack a legal identity (more than 25 percent of persons enumerated in the 2014 Census).
The situation of Rohingya people, who the State generally does not recognize as citizens, is the most egregious example of the human rights violations associated with this system.
This event is part of the ICJ’s broader support to promote and protect human rights in Myanmar through research, analysis, advocacy and creating spaces for discussion.
See also:
ICJ convenes workshop on reforming 1982 Citizenship law
