Open letter to Association of Asian Constitutional Courts on Myanmar

[signatories will be collated until 18 June and then sent to the AACC; to sign click here]

This letter is on behalf of concerned scholars of comparative constitutional law and politics, listed below.

We call on the Association of Asian Constitutional Courts and Equivalent Institutions (AACC) to suspend the Constitutional Tribunal of the Union of Myanmar from its membership.

On 1 February 2021, the military staged a coup in Myanmar. This political development has serious and devastating consequences for the future of constitutional democracy in the country. The Civil Disobedience Movement is one of the main civil society groups opposing the military and has widespread public support. The coup not only means that the incoming elected government has been prevented from taking office, but it has also led to thousands of people being unfairly arrested and hundreds of people have been killed, documented by organisations such as the Assistance Association for Political Prisoners.

On 9 February, the military appointed a new bench of the Constitutional Tribunal. This amounted to the capture of the Constitutional Tribunal by the military.

The AACC was established “to promote the development of democracy, the rule of law and fundamental rights in the Asian region”. We therefore call upon the AACC to suspend the Constitutional Tribunal from its membership for the duration of military rule in Myanmar and to revoke any invitations to regional meetings or conferences.

Regional and international networks like AACC can play an important role in sending a strong signal to Myanmar’s military that regional judicial networks will not cooperate with the institutions it has created and/or captured.

The Constitutional Tribunal could potentially have played an important role in Myanmar’s political transition post-2011, however, since 2021, the Constitutional Tribunal is squarely under the influence of the military.

The AACC should not cooperate with judicial institutions that are unable to uphold its mandate of promoting constitutional democracy, the rule of law and human rights in the region.

In Myanmar, the National Unity Government (NUG), the body that includes elected representatives and is acknowledged as the main opposition to the military, intends to abolish the 2008 Constitution and work towards a new Constitution that would provide for an independent Constitutional Tribunal under a federal system.

The AACC should publicly show its support for the NUG and its plans for an independent judiciary in a democratic Myanmar.

List of signatories:
Melissa Crouch, Professor, University of New South Wales (Australia)
Theunis Roux, Professor, UNSW Sydney, Australia
Rosalind Dixon, Professor, UNSW Sydney, Australia
Catherine Renshaw, Professor, School of Law, Western Sydney University, Australia
Associate Professor Maartje De Visser, YPH School of Law, Singapore
Martin Krygier, Professor, University of New South Wales (Australia)
Wojciech Sadurski, Professor, University of Sydney (Australia)
Adam Czarnota, Associate Professor, University of Sydney (Australia)
Tom Ginsburg, Professor, University of Chicago (USA)

Jeremy Webber, Professor, Faculty of Law, University of Victoria (Canada)


[further signatories to be added here]

Book launch: Comparative Constitutional Law and the Global South

On 18 June 2021, the G&T Centre for Public Law will host a book launch of two edited volumes on constitutionalism in the Global South: Philipp Dann, Michael Riegner and Maxim Bönnemann (eds), The Global South and Comparative Constitutional Law (Oxford UP, 2020); and Philipp Dann and Arun K. Thiruvengadam (eds), Democratic Constitutionalism in India and the European Union: Comparing the Law of Democracy in Continental Polities (Edward Elgar, 2021). The event will be chaired by Siddharth Narrain, with a panel including Theunis Roux, Melissa Crouch and Philipp Dann.

. To register see here

Law, Justice and Policing under Myanmar’s Military Coup

Webinar, Tuesday, 22 June, 2021, 9:30 – 11.00 (CEST), hosted by Danish Institute for International Studies (DIIS) and Oxford University – register here

In the resistance to the military coup in Myanmar, protesters have frequently hoisted placards reading ‘we want justice’ and ‘justice for Myanmar’. Demands for justice sit alongside calls for democracy and an end to decades of military dominance in Myanmar politics, which has also extended to the official justice system – the courts and the police. With the increasingly violent crackdowns and arbitrary arrests of civilians by the security forces, it has become clear that the courts and the police are with few exceptions ready to compromise with the rule of law and citizen rights to follow the army’s commands. Even before the coup, the official justice system was largely associated with injustice and mistrusted by ordinary citizens, who predominantly preferred to access justice through informal and customary systems. This mistrust can be expected to have grown substantially since the coup, reflecting a strong divergence between popular demands for justice and how the official, military-controlled judiciary is enforcing law.  Since the coup on 1 February the military has used a legal discourse and employed notions of law and order in their justifications for the coup and the crackdowns on civilian resistance. How is this playing out, and how are we to understand this usage in the present situation and through a historical lens? And are there people within the judiciary and the police who are ready to oppose the military junta, and in what ways may this affect the resistance more broadly? Another set of important questions regards how justice is understood and articulated among ordinary citizens’ who oppose the coup? How does the struggle against the military’s injustices feed into revolutionary aspirations for a new federal democracy and how do people imagine an alternative justice system? What form of transitional justice would be desirable in Myanmar in the long run?

These questions will be discussed by Myanmar experts at this webinar co-organised by the Danish Institute for International Studies and Oxford University as part of the Thanakha International Webinar Series Burma/ Myanmar.

Speakers:

Helene Maria Kyed, Danish Institute for International Studies

Khin Mar Mar Kyi, Oxford University

Nick Cheesman, Australian National University

Myat Thet Thitsar, Enlightened Myanmar Research Foundation

Chinese Law and Development

At this year’s Law & Society Association conference, there will be two roundtables on Chinese Law and Development.

China has emerged as the champion of economic globalization through the export of its goods and services. Yet there is little empirical basis through which to evaluate the effects of Chinese globalization or with which to theorize its broader importance. This roundtable features scholars from a number of jurisdictions who provide diverse perspectives on the question of China’s approach to transnational ordering, its “model” of development, and its impact on host states. In line with this year’s theme of “Crisis, Healing, and Re-Imagining,” this roundtable will provide critical assessments of the interaction between Chinese companies, investors, lawyers, and officials and the legal and regulatory systems of host states, as well as with the existing international economic order.

Roundtable I 

Ha Do (Oxford) – Vietnam 

Irna Hofman (Oxford) – Tajikistan  

Miriam Driessen (Oxford) – Ethiopia  

Michelle Ratton Sanchez Badin (FGV Direito SP) – Brazil 

Fabio Morosini (Federal University of Rio Grande do Sul) – Brazil  

Chair: Matthew Erie (Oxford) 

Roundtable II 

Won Kidane (Seattle) – Ethiopia/Sino-African dispute resolution 

Trang (Mae) Nguyen (Temple) – Cambodia/Vietnam 

Melissa Crouch (UNSW) – Myanmar  

Aziz Ismatov (Nagoya) – Uzbekistan  

Uche Ewelukwa (Arkansas) – Nigeria/international investment law 

Chair: Matthew Erie (Oxford) 

See the LSA conference portal for the recordings

Politics in Action 2021: Updates from Southeast Asia

The annual Politics in Action forum by Sydney’s Southeast Asia Centre brings political updates from Southeast Asia to researchers and practitioners from across the disciplines and beyond. Drawing upon expertise from around the world, these presentations will provide up-to-date information on developments in Southeast Asia relevant to scholars, students, practitioners and the general public.

In this public forum, invited experts will provide an analysis of the current political situation in Cambodia, Indonesia, Myanmar, the Philippines, Singapore and Thailand and discuss the broader implications of events in these countries for our region.

In 2021, the lineup of speakers includes:

  • Cambodia – Dr Astrid Norén-Nilsson (University of Lund)
  • Indonesia – Dr Burhanuddin Muhtadi (Syarif Hidayatullah State Islamic University)
  • Myanmar – Professor Melissa Crouch (UNSW Sydney)
  • The Philippines – Professor Maria Ela L. Atienza (University of the Philippines-Diliman)
  • Singapore – Dr Elvin Ong (National University of Singapore) 
  • Thailand – Professor Duncan McCargo (University of Copenhagen)

When: Wednesday 5 May & Thursday 6 May 2021

All videos recorded as part of Politics in Action 2021 will be made available for public viewing on our Facebook page and our YouTube channel from the 5th of May 2021 onwards. 

Postgraduate Session: Welcome to the ASAA

Are you a postgraduate student in Australia conducting research on Asia? The Asian Studies Association of Australia (ASAA) can help you in building your career and profile as a researcher, whether you’re an Honours, Masters or PhD student. With a membership of between 280-500, the ASAA is one of the largest organisations around the world and the peak academic body in Australia promoting and supporting research on Asia. You will also have a chance to meet the ASAA Councillors including the postgraduate councillor.
When: Thursday 29 April, 12:30pm – 1:30pm AEST
Where: online, please register here

Forum on International Education and Asian Studies

The Asian Studies Association of Australia (ASAA) invites its members to a forum to discuss its submission to the government’s consultation on a new strategy for international education, which presents an opportunity to promote Asian studies and languages. The webinar will be held at 2pm on 22 April.

The Forum will begin with a talk by Professor Ly Tran of the School of Education, Deakin University and an Australian Research Council (ARC) Future Fellow. Her research focuses on international education, international students, student mobility, international student graduate employability and the education-migration nexus.

Melissa Crouch will chair the discussion based around the terms of consultation on international education and how this could benefit Asian studies. The full consultation paper is available here.

Register for the seminar here

Closure of Indonesian language programs in Australian universities will weaken ties between the two countries

Universities are vital institutional actors in Australia’s relations with Indonesia. Australian universities welcome thousands of Indonesian students across a broad range of programs. In doing so, they help forge connections that strengthen relations between our two countries.

One major way that our universities have contributed is by offering Indonesian language courses. These programs enable Australian students to develop advanced Indonesian language skills.

This is why the recent decision by La Trobe University, Melbourne, to close its Indonesian language program by the end of the year is devastating. The decision comes despite a campaign last year against the closure. It follows the shutdown of similar programs by other institutions such as Western Sydney University, New South Wales.

Universities have been citing economic pressures due to COVID-19 and the loss of international students. However, these closures are also the result of a lack of federal and state government support for the humanities and for Asian languages.

Australian universities stand to lose both important academic and cultural assets with these closures.

Universities build their profile in the region through academic experts who teach and research about Indonesian culture, history, economy and society. Meanwhile, Australian university graduates who have studied Indonesian language and culture are among our best social, cultural and economic ambassadors to Indonesia.

A foolish and shortsighted decision

I know this devastation firsthand because I teach at a university that made a similarly foolish and shortsighted decision.

In late 2014, I joined the University of New South Wales just a year after it closed its Indonesian language program on the Sydney campus (the program still exists on the Canberra campus).

As a lecturer, it is frustrating to come across students who are super keen to engage with Indonesia, but don’t have the opportunity to learn the language.

Some students are able to take alternative courses by the Australian Consortium for In-Country Indonesian Studies (ACICIS), which provides opportunities to study in Indonesia.

However, ACICIS programs are currently online, due to COVID-19, and most are short-term.

The enthusiasm and momentum students gain after participating in ACICIS, and then returning to Australia, often seems to fade away as they lack the opportunity to further their language learning on campus.

It is also frustrating to supervise research projects on Indonesia when the most students can do is rely on secondary sources in English. Their inability to read sources in Indonesian means their engagement with the country remains shallow and dependent on the work of others.

Lack of vision and commitment

The closure of Indonesian language programs shows a lack of vision and leadership on the part of Australian university management.

It also demonstrates that current incentives by the Australian government for universities to maintain the teaching of languages are (so far) insufficient.

Under the country’s new “Job-Ready Graduates Package, for instance, language subjects are included as an area of national priority – but no longer directly referred to as “national strategic languages”.

Funding agreements under the federal government’s Commonwealth Grant Scheme also require universities to consult with Australia’s education minister on any decision to close these language programs.

Despite these agreements, the government shows little interest in preventing universities from closing vital language programs and maintaining cultural ties with Indonesia.

This year we have already seen Swinburne University of Technology close its Chinese and Japanese language programs. Now, La Trobe has decided to close its Indonesian program, following a similar decision by Western Sydney University.

Fortunately, Murdoch University has postponed the potential closure of its Indonesian language program. The decision comes with the hope that current high demand for Indonesian language courses in Western Australian schools – where teaching of the subject has grown exponentially due to state support – will eventually create a pipeline of students interested in studying Indonesian at university.

Building Australia-Indonesia relations is not rocket science

The Australian government is consulting with educators, students and universities to forge its new international education strategy. The current discussion points to a need for universities to diversify their student body and provide them a uniquely Australian education experience.

Part of this experience, for instance, is our proximity to Indonesia. This provides the opportunity for students to critically study issues that are important to the Indo-Pacific region.

Universities should not be using the pandemic as an excuse to close language programs – these will typically have smaller enrolments than, say, a compulsory first-year course taught in large lecture groups.

Swinburne University’s program even had strong enrolments, meaning the closure of their program had nothing to do with financial capacity. Instead, university management indicated it planned to prioritise science and technology courses. Yet this should not be at the expense of the humanities such as language courses.

Building strong relations with Indonesia is not rocket science. A core aspect of fostering close relations with another country is the ability of Australians to understand and engage with their people’s culture and language.

When universities cancel their language programs, they are abandoning their crucial institutional role in promoting deep engagement with Indonesia. In the long run, Australia-Indonesia relations will suffer for it.

*This article was first published in The Conversation on 21 April 2021

Research Associate job

The position of Research Associate is currently open for applications.

The Research Associate will work with me on the Australian Research Council (ARC) funded research project: ‘Constitutional Change in Authoritarian Regimes: The Case of Myanmar’. Applications close 28 April.

For the full details on the position see the UNSW website here.

What are military tribunals in Myanmar?

*For the Burmese version of this post see here

The military regime in Myanmar has begun to use martial law orders. As I explain here, this represents a serious escalation in the response by the military. One aspect of martial law or military administration is that the Tatmadaw presumes this allows it to establish military tribunals to try civilians.

Military tribunals established during martial law are distinct from courts martial. The Constitution only refers to ‘courts martial’ (ss 293(b), 319), which is courts to try military officers. Distinct from courts martial, the military uses ‘military tribunals’ to try civilians.

[note: if you are reading the English version of today’s military controlled newspapers 16.3.2021, the order incorrectly translates military tribunals as courts martial].

It is important to distinguish between courts martial and military tribunals. Courts martial have the authority to try military personnel. Courts martial are established in the Constitution and these courts do not try civilians.

In contrast, the term military tribunal in Myanmar refers to a temporary tribunal set up by the Tatmadaw to try civilians during a period of martial law or military administration.

This has been a common strategy of the military. It happened in 1948 and again in 1952, the latter in relation to Shan State.

In 1962, a nationwide martial law order introduced special criminal courts as part of the civilian judicial system. These special criminal courts were initially set up to try accused for offences under specific laws, including a range of offences under the Penal Code (122 (1), 123 (1), Article 124-A, 188, 302, 364, 365, 366, 366-A, 372, 373, 376, 392, 394, 395, 396 and 436), as well as offences under the Emergency Provisions Act 1950, the Arms Act, the Opium Act, the Unlawful Associations Act, the Public Property Protection Act 1947, the Essential Supplies and Services Act 1947 and the Public Utilities Protection Act 1947. This scope was so broad that most acts of opposition to General Ne Win’s regime could fall within it. Even so, the jurisdiction of these courts was later expanded to hear any offence.

These special courts had wide powers to issue a punishment of the death penalty, life imprisonment or three years jail for any of these offences. There was still some semblance of checks and balances, with any decision of the death penalty needing to be approved by the (civilian) Supreme Court. The Supreme Court could also hear appeals in cases where the death penalty had been handed down. In 1974, when a new constitution was introduced, the special criminal courts were abolished.

In 1988, after the military takeover, the military decided it did not need courts and closed the courts retrospectively from 1 June 1988 to 31 March 1989.

When martial law was issued in 1989, regional commanders were empowered to try civilians in the existing courts or in military tribunals. The powers of the military tribunals had similarities to the special criminal courts of 1962, except the tribunal was not part of the civilian court system. Military tribunals are entirely under the control of the Tatmadaw. This meant, for example, that an application for revision of a sentence of the death penalty went to the regional commander, rather than a civilian judiciary.

Amnesty International reported that in 1989, 24 people were sentenced to death by military courts. There were also concerns cases were tried in secret very quickly and without a lawyer present.

In 2021, the military has adopted the same strategy of using military tribunals to silence protestors. The Yangon Commander has the choice to try civilians in military tribunals. An accused person is at risk of being tried by a military tribunal that can issue a punishment of the death penalty, life imprisonment or three years jail.

The military tribunals can hear many of the same offences as in 1962, with the exception of laws that no longer exist, have been replaced or offences in the penal code that are not relevant to the present.

The list of offences the military tribunals can hear includes high treason (s122); offences against the government or Tatmadaw or its personnel (s124A, s124C, s124D); offences under section 505 and 505A; and a range of criminal offences such as murder and robbery in the Penal Code. It also includes a range of offences relating to specific sectors or issues such as the media and electronic communications, ward/village tract administration, terrorism, unlawful associations, corruption, drugs and the protection of property. It is not surprise that this list includes the new offences introduced into the Penal Code after the 2021 coup.

Crimes that would not otherwise attract the death penalty or life imprisonment now suddenly do if an accused is tried by a military tribunal.

Military tribunals are distinct from the courts martial for military officers. The courts martial have full jurisdiction over Tatmadaw personnel, not civilians. The courts martial are established under the Defence Services Act and Regulations, not a martial law order.

There have been several examples of the use of courts martial since 2011. For example, in January 2018, it was reported that courts martial found six soldiers guilty of killing three people in Kachin State and sentenced them to ten years in jail. In February 2018, courts martial tried seven soldiers for killing 10 Rohingya in northern Rakhine State.

Separate from courts martial, the military tribunals that may now be established are specifically to try civilians who are alleged to have committed offences within the areas under martial law.

The Tatmadaw has raised the stakes by allowing for military tribunals to try any civilian allegedly guilty of an offence and increased the punishment for those found guilty. This is another sign of the deterioration of the situation in Myanmar.

Note: On 17 March (the day after this post), the military issued a correction in the Global New Light of Myanmar to confirm that the translation should have read ‘military tribunals’ (not courts martial).