49. In addition to tackling impunity, the other underlying issue that the Government is failing to address is the systematic discrimination against and marginalization of the Rohingya community. To tackle this requires key legislative changes. For more than 20 years, holders of the special procedures mandate on the situation of human rights in Myanmar have been advocating reform of the 1982 Citizenship Act. Particularly problematic under international human rights law is the provision referring to certain “national” and “ethnic” groups as Myanmar citizens, specified by authorities in a list of 8 “national” and 135 “ethnic” groups. The majority of Myanmar citizens have automatically acquired citizenship under this provision by virtue of belonging to one of those groups. In practice, that has led to “nationals” and “ethnic groups” not contained in those listings being discriminated against on the basis of race and ethnicity in their access to citizenship, including the Rohingya Muslims, as well as persons of Indian, Chinese and Nepali descent, which is in contravention of international human rights law. To bring the Citizenship Act into line with international standards, race and ethnicity cannot be determining factors in the granting of citizenship. Instead, the law needs to provide for objective criteria that comply with the principle of non-discrimination, such as birth in the territory and descent (with citizenship being passed through a parent who is a citizen).
51. Taking into consideration the information and allegations the Special Rapporteur has received throughout the course of his six years on this mandate, including during his five visits to Rakhine State, and in particular since the June 2012 violence and its aftermath, he concludes that the pattern of widespread and systematic human rights violations in Rakhine State may constitute crimes against humanity as defined under the Rome Statute of the International Criminal Court. He believes that extrajudicial killing, rape and other forms of sexual violence, arbitrary detention, torture and ill-treatment in detention, denial of due process and fair trial rights, and the forcible transfer and severe deprivation of liberty of populations has taken place on a large scale and has been directed against the Rohingya Muslim population in Rakhine State. He believes that the deprivation of health care is deliberately targeting the Rohingya population, and that the increasingly permanent segregation of that population is taking place. Furthermore, he believes that those human rights violations are connected to discriminatory and persecutory policies against the Rohingya Muslim population, which also include ongoing official and unofficial practices from both local and central authorities restricting rights to nationality, movement, marriage, family, health and privacy. In the country’s ongoing process of democratic transition and national reconciliation, the human rights situation in Rakhine State will be a critical challenge for the Government of Myanmar and the international community to address.
60. Reforms to the Constitution will be needed to embrace the aspirations of ethnic communities to have their human rights respected, to have a say in Government decisions and to benefit from the resources held within their lands. (...) The following constitutional provisions require amendment for the overall transition to a democratic system of civilian governance to proceed: (...) To allow the people of Myanmar to freely choose their Government, the constitutional provisions that currently disqualify persons from standing for election as President or Vice-President, including on grounds of the nationality and birthplace of their parents (art. 59 (b)), the length of time that they have resided in Myanmar before the election (art. 59 (e)) and the nationality of their spouse, their children and the spouses of their children (art. 59 (f)), also require amendment. Furthermore, the Constitution needs to affirm that the fundamental human rights of all people living in Myanmar need to be respected, and not just those of the citizens of Myanmar.
79. In relation to human rights concerns in the context of development, the Government should: (...)
(f) Bring the Citizenship Act into line with international standards, by providing for objective criteria in the granting of citizenship that comply with the principle of non-discrimination, such as birth in the territory and descent (with citizenship being passed through a parent who is a citizen);
(g) Ensure that all children who are born in Myanmar and who do not have a right to the nationality of another State are able to acquire Myanmar citizenship, regardless of the status of their parents, and provide for naturalization under a revised citizenship law.