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.

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

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.

Symposium: Women in the Judiciary

The International Association for Constitutional Law (IACL-AIDC) blog is featuring a guest symposium this month on Women in the Judiciary. For the posts, follow the links below

Melissa Crouch, Guest Symposium on Women in the Judiciary

Imelda Deinla, Women judges and the rise and fall of Philippine democracy

Anna Dziedzic, Women judges, local judges, foreign judges: The challenges of collecting data on gender and Pacific judiciaries

Dinesha Samararatne, Reframing Feminist Imperatives in Adjudication in Sri Lanka

Melissa Crouch, Feminisation of the Judiciary between Thick and Thin: Women as Model Minority Judges in Indonesia

This blog series draws on a new book, Women and the Judiciary in the Asia-Pacific (CUP 2021). For a discount on the volume, see the flyer here

Australia and Asia: Regulatory Perspectives on continuity and change

A conference on Australia and Asia, Regulatory Perspectives, hosted by Monash Business School, Governance and Regulation Research Network (GARNET) and the Asia-Pacific Regulation Research Group, will be held on Wednesday 17thNovember 2021

Contributing to Veronica Taylor’s 1997 edited volume Asian Laws Through Australian Eyes (Sydney, LBC Information Services), Malcolm Smith presented Australians as largely ignorant of Asian legal systems, or as tending to view them inferior to their own.  A quarter of a century later, have Australian comparative lawyers moved on from the orientalist debates of the 1990s?  Is Australia any closer to understanding the complexity, diversity and (often rapidly) evolving nature of Asian legal systems?  These are the broad questions this workshop aims to explore.   

Assertions that Australia’s future prosperity is tied to the region sit uncomfortably alongside claims that ‘Asian’ legal systems lack the reliability and impartiality necessary for full participation in a globalised world.[1]  Underlying assumptions that economic prosperity would bring growing acceptance of rule of law fundamentals including a free press and independent judiciary have also been unsettled.[2]   China’s ability to participate in and benefit from global trade has not, it seems, been impeded by its lack of an independent judiciary or a free press.  Nor has China’s economic success resulted in growing acceptance of rule of law institutions.

While China is the current preoccupation of Australian lawmakers, debates on rule of law versus the socialist legality of ‘rule by law’ are alive and vigorous throughout the region.[3]  Australia’s own ostensible commitment to the rule of law is articulated in a 2017 Foreign Policy White Paper; and forms a key feature of bilateral foreign aid programs. Despite the rhetoric, however, actual development assistance for legal and judicial development in the Asia Pacific reached a high around 2010-12; and has since fallen back.   

Only 11 of Australia’s 40 domestic universities offer Asian Studies courses in 2021.  The picture for Asian language education in schools is even worse, with a declining proportion of students at all levels studying one of the four key Asian languages.  So far as the study of Asian law is concerned, by 2020 there were only 34 ‘permanent’ academics based in Australian law schools with a primary focus on Asian law, most of whom remain concentrated at just five of the 44 law schools in Australia.[4]

Despite valiant efforts by leading Asian and comparative law scholars in Australia (including those involved in establishing the Australian Journal of Asian Law), the methodological project in Asian regulatory studies remains under-developed.  Australian scholarly exchange with Asia has been further challenged by Covid-19, and by political developments in Asian nations.  Regional research-related travel and scholarly exchanges have been abandoned or stalled, while budgetary demands throughout an economically stricken region have relegated comparative legal knowledge and understanding to the bottom of funding priority lists. 

This workshop invites papers which engage with and address the theoretical, methodological and pedagogical project of comparative legal studies in Asia. Papers are invited on topics including, but not limited to:

  • To what extent have legal epistemologies evolved and changed since the Asian Financial crisis of 1997?   How have patterns of cross-pollination of regional legal epistemologies evolved and changed? 
  • Have research methodologies in regulatory studies moved on from the comparative law debates of the 1990s? Are there different, priorities and resources?  Are there different patterns of scholarly exchange?
  • What impact have political, economic and social changes, including those associated with globalisation, had on the practice of regulatory studies and pedagogy in Asia?  How has the relationship between politics and regulation evolved? 
  • How have regulatory approaches been shaped by and sought to shape regional engagement at different levels in different contexts? 
  • What is the role of Asian diasporas in the formation of diverse regulatory frameworks in Australia?  What is the role of Australian ‘soft power’ initiatives in shaping regulatory systems in Asia?
  • Case studies from Asia-Pacific jurisdictions of evolving approaches towards 21st century regulatory challenges.

Keynote Speakers: Professor Tim Lindsey, Melbourne Law School; Professor Veronica Taylor, ANU; Professor Melissa Crouch, UNSW

For more information and to register see here