The Palimpsest Constitution: The Social Life of Constitutions in Myanmar

Since the mid-20th century, many former postcolonial states have engaged in multiple constitution-making exercises, with the turnover in written constitutions often due to coups or internal conflict. Conversely, people have resisted authoritarian rule through alternative constitution-making. The reality that most countries have had numerous official and unofficial constitutional texts begs the question: How do past constitutions matter in the present? This volume explores the social life of constitutions, or how past constitutions matter. Using the case of Myanmar, Crouch demonstrates that constitutions are a palimpsest of past texts, ideas, and practices, an accumulation of contested legacies. Through constitutional ethnography, she traces Myanmar’s modern constitutional history from the late colonial era through its postcolonial, socialist, and military regimes.
The Palimpsest Constitution captures the idea that contemporary debates about constitutional reform are informed by the contested legacies of the past. Today, the military insists on the endurance of its 2008 Constitution while pro-civilian actors resist military rule through alternative constitution-making endeavours. Offering a sociological view of constitutional endurance, the book demonstrates how the social life of contested constitutional legacies are central to the struggle for constitutional democracy and civilian rule in Myanmar.

Endorsements

“In this persuasive and timely assessment of the fragility and endurance of constitutions, Crouch writes with clarity and passion about the social life of constitutions in Burma/Myanmar. Her sweeping history exposes the continuities of power and violence across colonial, democratic, and authoritarian regimes, successfully placing the Global South at the center of broad debates about constitutional politics.” – Lauren Benton, Barton M. Biggs Professor of History and Professor of Law, Yale University

“In this detailed history of the feints and parries of constitution drafting in Myanmar, Professor Crouch shows how past constitutions circulate not only in present constitutional debate but also in social memory, political mobilization, public commemoration, legal professionalism, resistance, and social control—even book selling—making this account instructive for sociolegal scholars and ethnographers of post-coloniality and authoritarian rule. Clear and engaging writing and thoughtful thematic organization make the work accessible to readers beyond regional specialists and legal comparativists. Her fieldwork narrative adds further value, especially for ethnographers of law.” – Carol J. Greenhouse, Arthur Marks ’19 Professor of Anthropology Emeritus, Princeton University

ANU Seminar on the Military and the Courts in Myanmar

On 24 August, the ANU College of Law will host a seminar by Melissa Crouch on ‘Judicial Loyalty to the Military in Authoritarian Regimes: How the Courts are Militarised in Myanmar’.

Judicial-military relations are an underexplored aspect of the rule of law in authoritarian regimes. In this presentation I explore the concept of judicial loyalty to the military. Through the case of Myanmar, I consider how courts are militarised, that is, the process of rendering judges loyal to the military. Based on ethnographic research, I show how the Supreme Court and subnational High Courts in Myanmar have been, and remain, loyal to the military.

Location : Phillipa Weeks Staff Library, ANU College of Law, Building 7, Room 7.4.1. 6 Fellows Road, Acton, ACT 2601

Registration available here

Constitutional Democracy in Indonesia

Editor, Melissa Crouch

The Indonesian Constitution is an important legal text that governs the world’s third largest democracy. After decades of authoritarian rule, a key aspect of the transition to constitutional democracy was the amendment of the 1945 Constitution. The amended Constitution introduced profound changes to the legal and political system, including an emphasis on judicial independence, a bill of rights and the establishment of a Constitutional Court. This volume explores the ongoing set of debates over the meaning, implementation and practice of constitutional democracy in Indonesia. This includes debates over the powers of the legislature, the role of the military, the scope of decentralisation, the protection of rights and permissible limits on rights, the regulation of elections, the watchdog role of accountability agencies, and the leading role of the Constitutional Court. These legal issues are analysed in light of the contemporary social, political, and economic environment that has seen a decline in tolerance, freedom and respect for minorities. Contributions to this volume review the past two decades of reform in Indonesia and assess the challenges to the future of constitutional democracy amidst the wide-spread consensus on the decline of democracy in Indonesia. Demands for amendments to the Constitution and calls to revert to its initial form would be a reversal of Indonesia’s democratic gains.

Endorsements:

“Indonesia’s experiment with constitutional democracy is now two decades old.  As the country enters a challenging period, there is no better guide to understand developments than this volume of superb essays by an array of keen observers. The project will also inform broader debates in the field of comparative constitutional law. Highly recommended!” Professor Tom Ginsburg, University of Chicago

Investing in the future of language studies by learning from the past

On 7 April, the Monash Herb Feith Indonesian Engagement Centre will host a hybrid event on the future of language studies and how we can learn from the past, with Melissa Crouch and Liam Prince.

In this talk Melissa Crouch will consider the importance of mainstreaming the study of Asia as a complimentary strategy to support language studies. She will use the example of Asian legal studies and its history in Australia, particularly its strengths in Indonesian studies, to explore lessons that we can learn to build a new future for Asia-literate graduates in Australia.

Liam Prince will discuss the fitful nature of Australian public policy towards – and government funding for – Asian language learning. He will discuss the historical challenges to the Australian Government’s maintenance of policy focus and funding continuity in this area with reference to the three most significant Commonwealth initiatives of the past 30 years – namely, the National Asian Languages and Studies in Australian Schools Strategy (1995-2002), the National Asian Languages and Studies in Schools Program (2009-2011), and the New Colombo Plan (2014-present).

To register, see here.

Friends of Sean Turnell

A website has been established concerning the ongoing detention of Professor Sean Turnell. Some of his friends have also written reflections on Sean. David Throsby’s reflection is available here. My personal reflection on Sean is below or here.

I don’t recall when I first met Sean. But he is the kind of person you feel as though you have known for a long time, even if it hasn’t been that long.

From 2011, after holding a workshop at the University of Melbourne, I began working on a collaborative volume on Law, Society and Transition in Myanmar. Published in 2014, Sean contributed a chapter on the ‘Legislative Foundations of Myanmar’s Economic Reforms’, in which he refers to the ‘messiness’ of Myanmar’s economic transition and suggested that much ‘heavy-lifting’ in terms of economic reform was still needed in the years ahead.

In 2012, Sean attended a workshop on the legal reform process in Myanmar that we hosted at the National University of Singapore, where I was working at the time. In 2013, Sean was again passing through Singapore, either on his way to or from Myanmar. He did me a favour by giving a guest lecture in my class on the Rule of Law in Myanmar. I still remember how he captured students’ attention during that class. He told the story of the collapse of the economy and banking sector in Myanmar under military rule and the growth of the black market. He pulled out a kyat bank note from his wallet and spoke about the disconnect between the official exchange rate and the black market rate prior to 2012. He told the story of how the floating of the kyat was a transformational moment in the economic development of Myanmar. Among other things, Sean is a good storyteller.

Over the years, I had the chance to learn from Sean and share dinner at many conferences. In 2016, Sean participated in a workshop I organised at the University of New South Wales which led to a chapter he published on ‘Microfinance in Myanmar: Unleashing the Potential’ (The Business of Transition, CUP 2017). The subheading of Sean’s chapter speaks to his eminent optimism, always seeing the potential of people and situations. He spoke critically of the ‘warped and distorted co-operative movement in Myanmar’. In the chapter he articulates his commitment to the ideal of ‘providing reliable financial services to people otherwise denied them’, while realistically acknowledging that microfinance is ‘no panacea for the establishment of a fully functioning financial sector’.

Sean’s work is the starting point for any research on Myanmar’s economy. I supervised a law student who wrote a research essay on the banking sector in Myanmar and of course it was Sean’s publications that were the first point of reference.

In 2019, Sean again generously helped me as I organised an interdisciplinary trip to Myanmar, with colleagues from across the faculties of medicine, engineering, law, architecture and social science at UNSW. Sean spent much of his time in Naypyidaw, and like most foreigners stayed in the eerie hotels there. While he must have been truly exhausted and exasperated by the endless circus of conferences, he still agreed to contribute to the seminar. Sean spoke about the work of the Myanmar Development Institute, the economic think tank set up by the National League for Democracy Government.

In the mid to late 2010s I often crossed paths with Sean at hotels in Naypyidaw or Yangon, and also at Yangon International Airport. He always had a smile at the ready, even if the constant demands on his expertise meant that he was pressed for time to chat.

A chance meeting at the airport on 23 January 2020 was the last time I saw Sean. And like many of us, it would be my last trip to Myanmar before covid-19 and the coup. Sean and I had dinner in an empty, rather sterile airport food court, swapping stories and experiences. I recall that we dived right in to some difficult issues, including the Rohingya crisis and the ICJ case. During our conversation, Sean told me he wasn’t going to return to academia, but the impression I got was that he wanted to do what he could to help in Myanmar. At that time, there was every anticipation the NLD would potentially win the next election and serve a second term in office. He left to catch his plane, which was leaving before mine, and I sat weighing the challenges we had discussed but also the glass half full attitude with which Sean approached them.

Academia is both a wonderful and strange field, and staying committed to praxis can be challenging. Yet Sean did this well. He is among the most generous academics I know and treats everyone with great respect, regardless of the stage of their career or their gender. Looking back, I certainly owe a lot to Sean. The next dinner will be on me.

A year on, Australia’s most unlikely political prisoner remains in jail: Sean Turnell

It has been one long year since Australian academic and economist Sean Turnell was arrested by Myanmar’s military regime. Economics advisor to Aung San Suu Kyi and Associate Professor of Macquarie University, Sean remains under detention in Myanmar.

The military coup has returned the country to the horrors of direct military rule, including war, targeted and random violence against both political opponents and ordinary citizens, arbitrary detention, torture and grave economic and social instability.

On February 1, 2021, after learning of the coup, I messaged Sean via Facebook to check if he was safe. Sean responded: “I am in Myanmar, Melissa. Internet just came up. Keeping low. Many friends arrested.” He was referring to the arrest of Aung San Suu Kyi and other senior members of the then civilian government with whom he had worked closely…

*For the full article please see The Sydney Morning Herald, 1 February 2022

Joint statement: One year after the military coup in Myanmar

*This statement is also available at UNSW, ANU , MRC, University of Sydney and Griffith Asia Institute websites

On 1 February 2022, people in Myanmar will mark the first anniversary of renewed military dictatorship with protest and resistance. The coup prevented an elected government from taking office. The military extralegally detained its members, and embarked on a program of state violence reminiscent of the atrocities in 2017 that led hundreds of thousands of Rohingya Muslims to flee to Bangladesh.

The military has met nationwide resistance. A civil disobedience movement that began in the days after the coup has persisted in its efforts to oppose military rule by strikes, boycotts and other kinds of non-cooperation. A people’s defensive war has brought fighting to parts of the country that had for decades been without armed conflict. 

The costs have been great. Many have lost their jobs and housing. Thousands have been detained and at least 1,499 civilians have lost their lives, according to the AAPP. An estimated 406,000 people have been internally displaced since the coup and at least 32,000 have fled to neighbouring countries, according to UNHCR.

The military coup has exacerbated efforts to combat the Covid-19 crisis, unnecessarily contributing to a high death toll. Military rule greatly complicates future efforts to control the virus, putting the health and safety of millions in peril.

The consequences of the coup on higher education are disastrous. After decades of debilitating dictatorship, universities and institutes in Myanmar were just beginning to find their feet when the military again seized control. The universities remain closed to students. With their shutdown go the hopes of another generation for quality education in Myanmar. Opposition groups, activists and engaged scholars are setting up alternative study programs, but these can fill only a small part of the demand.

As academics, students and professional staff working on Myanmar, we mark this anniversary by condemning the coup and the violent suppression of political opposition to military rule. We deplore the targeted killing and maiming of unarmed civilians, including via massacres during recent military offensives launched in many parts of the country.

To our friends and associates in Myanmar, and to alumni of Australian universities who are struggling against dictatorship, we extend our solidarity. We join with you and others around the world in demanding that the military retreat from politics, stop the killings and torture; release all political prisoners, including our colleague Professor Sean Turnell, and return government to those whom Myanmar’s electorate chose to lead it.

Joint statement issued on 31 January 2022 by:

Asian Studies Association of Australia, the peak academic association supporting the study of Asia in Australia

Association of Mainland Southeast Asia Scholars, an academic association that promotes and advances research on Cambodia, Laos, Myanmar, Thailand and Vietnam

Australia-Myanmar Constitutional Democracy Project, a consortium of academics from the University of Sydney, UNSW, ANU, and Western Sydney University

Australia Myanmar Institute, which works to create and strengthen sustainable, multi-sectoral, collaborative, applied research and partnerships between Australia and Myanmar

Griffith Asia Institute, an internationally recognised research centre within Griffith Business School.

Myanmar Research Centre, an academic hub for Myanmar-related activities at the Australian National University and beyond

A Burmese translation of the statement is available here

asaa-amseas-amcd-ami-gai-mrc-joint-statement-on-myanmar-2022-bur-1Download

Seminar: Alternative Histories of Judicial Review

On 16 February I will give a seminar for the Global History Workshop (GHW), part of the Global History Lab, the Department of History, Princeton University. 

In this talk I will argue for an expanded and pluralist view of histories of judicial review. I chart the itinerary of a curious constitutional invention, the constitutional writs in South Asia and other parts of the British empire. I take Myanmar as a case study, exploring the origins and growth of these writ remedies and its contemporary fate. In doing so, I will offer an alternative history of judicial review.

Women as Model Minority Judges: The Case of Indonesia

On 21 January 2021, the Oxford Programme in Asian Laws series will host a seminar by Melissa Crouch on ‘Women as Model Minority Judges in Indonesia’. Registration for the seminar is open here.

Serving the world’s third largest democracy, Indonesia’s Constitutional Court has been crucial to the past two decades of reform and the shift from authoritarian rule to constitutional democracy. There has only ever been one female judge out of nine on the bench at any one time. Symbolically, the Constitutional Court does not begin to meet global demands for women’s equal representation in the judiciary. In 2018, when Justice Indrati retired from her position, there was public debate about whether her replacement should be a woman or not. This occurred at a time when Indonesia experienced its #MeToo moment. The questions this raised were obvious but important: to what extent can we speak of the feminisation of the judiciary in Indonesia, both in a thin sense of women’s entrance into the profession and in a thick substantive sense of gender equality? What role do women judges play on Indonesia’s Constitutional Court? In this seminar I identify that while thin feminisation of the judiciary in Indonesia occurred as early as the 1960s, progress on the Constitutional Court has been slow. I profile Justice Maria Farida Indrati as an example of women as model minority judges. That is, the selection of women as judges to high judicial office is explained by the fact that women judges fit a model minority profile, reflecting dominant legal, social and political values of the day. Ten years later, this also explains her replacement by a Muslim jilbab-wearing conservative woman judge, reflecting the rise of Islamic conservatism and its influence on politics, and the decline of democracy in Indonesia. Overall, I acknowledge that women judges hold both promise and paradox for the promotion of gender equality. The concept of women as model minority judges offers insight into the appointment of women judges to high judicial office in Indonesia.     

For further details on the seminar see here.