New Authoritarianism in Asia

On 3-5 March, Friedrich-Ebert-Stiftung and the Asian Political and International Studies Association (APISA) are organising a conference on New Authoritarianism in Asia at Ewha Womans University, South Korea. I will be speaking on “How Authoritarianism is Embedded in Law and Politics in Myanmar“. 


Abstract: Myanmar is the most recent country in the region to have made significant gains in terms of its shift from complete authoritarian rule. Yet these reforms are inevitably limited by the 2008 Constitution that enshrines a permanent role for the military in governance, including as unelected members of parliament at the national and regional level. The first stage of this transition (2011-2015) under the leadership of President Thein Sein brought unprecedented changes for the country. Among these include the release of many political prisoners, relaxation of media regulations, greater freedom of association, a vigorous bicameral national parliament, a new Constitutional Tribunal and National Human Rights Commission, and a major peace process initiative. Yet it also brought violence, conflict and great uncertainty for minority groups such as Muslims, particularly those in Rakhine State. The lead up to the national elections in 2015 saw the government use the rhetoric of national security and the protection of Buddhism to restrict the right to vote, and effectively deny a major humanitarian and regional displacement crisis. As the National League for Democracy takes office in 2016, this will lead to radically different political dynamics over the next five years, or will it? This paper focuses on the extent to which Myanmar’s political and legal system mandating quasi-military rule will constrain its newly-elected, pro-democracy members of parliament, drawing on the literature in political science and law on authoritarian regimes. Given that the 2008 Constitution establishes a highly centralized system of governance with a large amount of power in the hands of the President, this raises concerns about whether the National League for Democracy can actually govern democratically. 

RSIS Seminar Series on Muslim Societies in Asia

Understanding Religious Diversity in Myanmar
Wednesday, 24 February 2016, 3:30-5:00pm
Dr Melissa Crouch, Lecturer, Law Faculty, University of New South Wales, Sydney


Moderator: Associate Professor Farish (Badrol Hisham) Ahmad-Noor, Coordinator of PhD Programme, S. Rajaratnam School of International Studies


Venue: LHS Lecture Theatre, level 1, The Hive
Nanyang Technological University
52 Nanyang Avenue Singapore 639816. Click here for location map

Click here to register online
Abstract: The anti-Muslim violence in Myanmar over the last few years has brought to the forefront the tensions between the state, society and Muslim communities. Much attention has been given to the large-scale migration and displacement of Muslims from Rakhine State, some of whom identify as Rohingya, which has placed pressure on neighbouring countries in South Asia and South-east Asia. However, there has been less scholarly attention on the diversity of Myanmar’s Muslim communities, the socio-political factors that have shaped conceptions of identity and belonging, and how these communities relate to other Muslims in the region. The need for understanding, and a broader historical perspective, is especially important given the on-going conflict and the displacement of Muslims from Myanmar. To that end, this seminar aims to provide an understanding of the historical roots of Myanmar’s diverse Muslim minorities, its Islamic practices and influences, and how the Burmese Muslim identity has been shaped over time and by interactions with the state and society


About the Speaker:
Melissa Crouch is a Lecturer at the Law Faculty, the University of New South Wales, Sydney. She is the Deputy Director of the Comparative Constitutional Law Project; member of the Australia-Myanmar Constitutional Democracy Project and the Gilbert+Tobin Centre for Public Law. Her research contributes to the field of Asian Legal Studies, with a concentration on Public Law; Islamic Law; and Rule of Law in Fragile States. She has conducted extensive socio-legal field research with a particular focus on Myanmar and Indonesia. Melissa is the author of Law and Religion in Indonesia: Conflict and the Courts of West Java (Routledge, 2014) and editor of the upcoming Islam and the State in Myanmar: Muslim-Buddhist Relations and the Politics of Belonging.

Dawn of a Democratic Era or Dialogue with Dictators in Myanmar?

This article was commissioned by International IDEA and was originally posted on ConstitutionNet, IDEA’s online knowledge platform supporting constitution builders globally. Read more
Ever since the National League for Democracy won a significant victory in Myanmar’s November 2015 elections, attention has turned to who will become president for the next five years. This issue has generated a large amount of interest not only because the president holds a significant amount of power under the 2008 Constitution, but also because the most favoured person, Daw Aung San Suu Kyi, cannot be nominated. The constitutional requirements for presidential nominees appear designed to explicitly exclude Aung San Suu Kyi.
So who are the new leaders of Myanmar, how are they appointed and what constitutional challenges will they face moving forward?


Electing new leadersThe quality and skill of the country’s new leaders will determine the NLD’s impact, and this goes beyond the leadership of the president. On 1 February 2016, the new members of parliament took office in Naypyidaw, the capital city. The NLD has a majority in both houses of parliament, although its members sit alongside a handful of members of parliament from ethnic political parties and members from the Union Solidarity and Development Party (backed by the military), as well as the 25 percent of non-elected members from the military.
The recent appointment of the upper and lower house speakers reflects a necessary mix of historical legacy, political pragmatism and calculated diversity. The Speaker of the more powerful Pyithu Hluttaw (lower house) is U Win Myint, a long-time NLD member and member of parliament since 2012. He is accompanied by Deputy Speaker, U T Khun Myat, who is said to be close to Thura Shwe Mann, the former Speaker and USDP member. The NLD will rely on them to keep parliamentary proceedings in order and in line with the NLD’s legislative agenda.
The Amyotha Hluttaw (upper house) consists of representatives from each of the state and region parliaments and is designed to represent the interests of the officially ‘recognised’ ethnic groups, which are divided into eight broad categories that include ethnic Burmans, Kachin, Karen, Mon, Chin, Shan, Kayah and Arakan. This rigid ethnic recognition is overlaid with religious diversity; while a majority of people in Myanmar are Buddhist, there are significant Christian and Muslim communities. The appointed Speaker for the Amyotha Hluttaw is Mahn Win Khain Than, a Christian Karen who is known as the grandson of one of the seven martyrs in 1947. The Deputy Speaker is U Aye Thar Aung, of the Arakan National Party that defends a pro-Rakhine Buddhist agenda in Arakan State, where a third of the population are Muslim.
The parliament is now deliberating over the presidential nomination process. The process under the Constitution is conducted by the parliament, rather than a direct election of the president by the people. Three nominations will be put forward. One each from the upper and lower house, dominated by the NLD, and one from the military members of parliament. The criteria for presidential nominees in section 59 of the 2008 Constitution have been carefully crafted by the former military regime. Not only must the nominee have resided in Myanmar for more than 20 years, they must be a citizen of Myanmar and at least 45 years old. Crucially, neither they nor their partner or children can hold foreign citizenship, according to the now infamous section 59(f). Aung San Suu Kyi’s late husband and children hold foreign citizenship and this bars her from being nominated. The nominee must also be familiar with military affairs under section 59(d). Changes to this section to replace the word ‘military’ (sit-ye) with the word defence (ka-gwe-ye), as a subtle image make-over for the military, were approved in 2015 by parliament, although the matter was never put to a referendum to complete the amendment process.
There are two possible outcomes of the presidential nomination process. One is that a proxy president from the NLD will be put in place and answer to Aung San Suu Kyi. While some commentators have been confident enough to eliminate the possibilities down to a single person, this is still largely a matter of speculation. The other controversial option being discussed is to find a way to bypass the Constitution so that Aung San Suu Kyi can become president immediately, with the intention of then formalising this arrangement through constitutional amendment.


Bypassing the Constitution?In particular there has been speculation that the NLD may attempt to suspend section 59(f) to enable Aung San Suu Kyi to become president. This is where most foreign media have failed to understand the reasons why this is considered a possibility and the historical precedent on which it may be broadly based. Two past incidents are remembered in Myanmar as circumventing the 1947 Constitution.
First, the Constituent Assembly members that drafted the 1947 Constitution were appointed to parliament with the intention that they would step down within six months once national elections were held. However, the members were allowed to continue to serve in parliament beyond this deadline. This contradicted the six month limit set by the 1947 Constitution. The pragmatic reason given was that elections had to be postponed because of the serious conflicts that threatened the ‘Rangoon’ government. The legal reason given was based on the interpretation of the then Chief Justice U Chan Htoon, who took a rather generous and pragmatic reading of the Constitution, suggesting that the six month limit did not actually apply to the former Constituent Assembly members.
The second key historical incident on which the idea of ‘suspension’ of a provision of the Constitution is based occurred in 1959. At this time, the six month limit of General Ne Win and his caretaker government came to an end according to the 1947 Constitution. This led to fierce parliamentary debates as to whether the 1947 Constitution should be formally amended by suspending the provision that permitted non-elected members of government to serve for no more than six months. There was serious opposition to this proposal and some warned it would set a negative precedent and lead to dictatorship. But those in favour overruled the 29 members of parliament who voted against the proposal. The constitutional amendment law of 1959 claimed to temporarily ‘repeal’ this provision until a new Prime Minister was appointed. In effect, it suspended a provision of the Constitution to allow Ne Win and his caretaker government to continue to rule until an election was held in 1960.
The difference between 1959 and the present is that the 1947 Constitution allowed constitutional amendment if the proposal had been passed by both houses of parliament, and then approved by two thirds parliament sitting jointly. The 1947 Constitution specifically allowed any provision to be repealed, varied or added to via the amendment process, and this was interpreted as including a ‘temporary’ repeal.
The 2008 Constitution in contrast requires a much more difficult process and it does not mention suspension of a provision. It then comes down to the interpretation of the Burmese phrase. Does the word ‘amendment’ (pyin-sin-chyin) in the 2008 Constitution include efforts to (temporarily) repeal, vary or amend? This would require a determination by the Constitutional Tribunal to resolve, but if the Tribunal follows past interpretation then the answer is possibly yes. 
In short, while some practitioners claim a law could be passed to temporarily suspend article s59(f), there appears to be no legal basis for this claim.


Priorities and Limitations of the New GovernmentOnce the presidential nomination process is complete, the President will then determine the number of ministries and appoint all ministers, all Chief Ministers of the States and Regions, the Attorney General, and the Union Election Commission members, among others. The appointments for Shan State and Rakhine State will be particularly important, as the NLD does not enjoy a majority in these parliaments.
Over the next five years, the President and its NLD-majority government has a significant opportunity to further the democratic reform process, – yet there are things they can and cannot do.
The NLD does have a majority in both the upper and lower house and so it will have the power to pass any laws it chooses. The only brake on the legislative process is that the military, USDP and ethnic members may decide to challenge legislation in the Constitutional Tribunal on the grounds that it is unconstitutional. This could lead to a ‘dialogue with dictators’, with unelected military members of parliament bringing cases before the Tribunal. Given that the NLD-dominated parliament is likely to re-elect a new bench to the Constitutional Tribunal, it may be less open to such applications.
The parliament is still graced by the presence of military members of parliament who are unelected. Forming 25 per cent of the seats, these military members will no doubt keep a close watch on the decisions made by the NLD. One of the vice-presidents will also be chosen by the military. The biggest roadblock that the military is likely to pose is to the possibility for constitutional amendment, and it is here where dialogue with dictators is most needed.
The NLD will be able to propose a bill for constitutional amendment, but the chances of success will depend on the agreement of at least some military members of parliament. To amend key provisions of the constitution requires more than 75 percent of the vote in parliament, and more than 50 percent of eligible voters at a referendum. Even if military approval can be gained for constitutional amendment, the referendum could also be difficult. The turnout rate for voting at the national election was only 69 percent, and the NLD gained no more than roughly 60 percent of the votes.
It is not only the constitutional amendment but also the implementation of government policy that will require the President to find a way to work with Commander-in-Chief Min Aung Hlaing. According to the Constitution, the Commander has power to choose the heads of several key ministries: the Ministers of Defence, Home Affairs and Border Affairs. Given that the backbone of government bureaucracy – the General Administrative Department – falls under the Ministry of Home Affairs, cooperation will be critical.
Reform of the judiciary is also likely to be a key concern for the NLD.The NLD’s Manifesto, issued in October 2015, identified judicial independence and fairness in judicial decision-making as a core concern. The role of the Supreme Court was extolled and reinforced. No mention was made of the Constitutional Tribunal – a convenient silence. This omission suggests that the Tribunal may not feature in the NLD’s future vision for a democratic Myanmar, but to abolish the Tribunal would itself require constitutional amendment.
Either a proxy president or Aung San Suu Kyi herself will take over as President on 30 March 2016 – when the current President Thein Sein’s term ends. He or she will serve until 2021, and has the possibility of being re-nominated for a second term. The NLD has called for patience and indicated it may not hold the final nomination procedure until March.
In any event, we will see the President and one Vice-President with the support of the NLD, and one Vice-President appointed by the military. Paradoxically, if this is to be the dawn of a truly democratic era in Myanmar, it will be because of a delicate dialogue with dictators.
This article first appeared in ConstitutionNet.

Indonesian Studies Online

There are a fantastic range of dynamic blogs that cover Indonesia, some well-established and others new on the scene. I’ve been asked by a few people lately about existing resources, so thought I would list them here:


Asian Studies Association of Australia (ASAA) – Indonesia Council – Jackie Bakker puts together a great monthly email list of new publications and events: ictlistdata@gmail.com, or see

Inside Indonesia – a long-standing magazine on Indonesia now online 


Indonesia at Melbourne, a new blog by the University of Melbourne that features interviews, news and opinions related to recent research, 


Kyoto Review of Southeast Asia, a fantastic new blog that wins hands down for its efforts at communicating to a broad audience – it publishes articles in Hindi, Japanese, Indonesia and English! 


New Mandala, a high profile academic online blog on mainland Southeast Asia, but often includes comments on Indonesia, ANU 

And for Indonesian law specifically, check out the Centre for Indonesian Law, Islam and Society CILISthat has a key list of scholars who work on Indonesian law 

Indonesia: Persecution disguised as fighting terrorism

In recent news, a minority sect in Indonesia known as Fajar Nusantara Movement, or Gafatar, had its village burnt to the ground on suspicions it was connected to terrorism. Although this comes just days after a terrorist attack in Jakarta, the incident must not be blown out of proportion.The attack on the village is certainly devastating and a violation of rights, but the link to international terrorism is tenuous if non-existent. The targeting of this minority group represents just one incident in a long pattern of vigilante violence against minority religious communities in Indonesia. Such violence has affected groups ranging from the minority Shiite community to Ahmadiyah, a group that is said to believe in another prophet after Muhammad.Indonesia’s concern should not primarily be whether this minority group has links to international terrorism. It is domestic radicalism – those who organised the attack on the village – that should be the cause for concern. Local mobs cannot be allowed to take matters into their own hands, orchestrating attacks and burning down villages of religious groups that are so-called ‘deviant’.This problem can be traced to the introduction of democracy in Indonesia since 1998 that displaced the former centre of power – the authoritarian state. This has led to new contests for power and authority including from religious groups. One such source of authority is the informal power of Islamic leaders to issue a fatwa to declare the teachings of a particular group as ‘deviant’ or outside of orthodox Islamic.The news that the Indonesian Ulama Council, Indonesia’s peak Islamic body, may issue a fatwa against Gafatar and deem it heretical needs to be considered in context. A fatwa, the opinion of an Islamic religious scholar, is not law in Indonesia. Fatwa are not sanctioned by the state.The impact of a fatwa on the actions of Muslims may vary, and may have no impact at all. For example, the Indonesian Ulama Council has issued  fatwa in the past against smoking and using Facebook. Clearly most Indonesian Muslims have ignored such opinions.A fatwa by the Indonesian Ulama Council does not have the approval of the government. Although the council claims to represent all Muslims in Indonesia, it is only a quasi-official body with connections to the Ministry of Religion. It is not an official state institution as such. The real problem is that despite the informal status of the council,  fatwa have been used in the past as evidence to convict a person in court for blasphemy.Some media reports suggest that the Indonesian Attorney-General’s Office is now preparing to bring Gafatar or its leaders to court, potentially on charges of blaspheming Islam. This is possibly why the Indonesian Ulama Council may issue a fatwa declaring the group ‘deviant’ from Islamic teachings.There is a common connection between a fatwa and criminal prosecutions in Indonesia. A minority religious group ruffles the feathers of established Islamic religious authorities and their orthodox teachings. A major Islamic organisation in the area issues a fatwa against a group. The group or its leaders are reported to police. The public prosecutor then pursues charges of blasphemy.A fatwa is then used in court as evidence against the group. The courts generally show an attitude of deference to religious authorities, and the person is convicted. This has happened many times before. My research has demonstrated that there have been over 50 court cases, or at least 130 individuals convicted, under the Criminal Code between 1998 and 2012. Many of these were convicted for blaspheming Islam.The bigger issue in Indonesia is not whether groups like Gafatar have links with international or local terrorist organisations. At any rate there seems little evidence of this. Even if the group has links with a former homegrown organisation al-Qiyadah al-Islamiyah, that group was never convicted for terrorism but only for blaspheming Islam. The key issue is that the Indonesian government must take a tough stance against domestic radicalism.Instead of pursuing criminal charges of blasphemy against the leaders and followers of Gafatar, who have been victims of violence, serious action must also be taken against the mob that burnt down their homes and drove them out of their village. Targeting domestic radicalism would demonstrate that the Indonesian government is taking its constitutional responsibility to protect religious freedom seriously.
Dr Melissa Crouch is Lecturer at the University of NSW. She is the author of Law and Religion in Indonesia (2014).
This article was published in The Sydney Morning Herald, 28 January 2016,

Addressing the Problem of Statelessness in Asia-Pacific

Dr Melissa Crouch of UNSW Law is currently participating in a Workshop on Researching Statelessness and Citizenship in Asia and the Pacific from 27-29 January 2016. Organized by the United Nations High Commission of Refugees and the University of Melbourne, the conference brings together leading researchers and practitioners from around the world on the legal issues arising from the problem of statelessness in the region. 
The workshop coincides with the UNHCR Global Action Plan to End Statelessness 2014-2024. UNHCR has documented that there are 10 million stateless people in the world today, many of who reside in the Asia-Pacific region.
This discussion has particular relevance for Dr Crouch’s research on Myanmar. The National League for Democracy takes office on Monday 1 February, and the pressing issue of inclusivity, citizenship and the need to address the rights of displaced populations in Myanmar should be a key concern.

Islam and the State in Myanmar: Muslim-Buddhist Relations and the Politics of Belonging

Order Here

Edited by Melissa Crouch, 2016, Oxford University Press 


The edited volume aims to reinvigorate scholarship on Islam in Myanmar, to explore the diversity within the Muslim community, to offer new empirical research, and to bring a scholarly perspective and insight into complex issues raised by the position of Muslims where they form a minority in states across Asia. It brings together a wide range of scholars from Burma Studies, Islamic studies and a wide range of other disciplines – international relations, political science, history, law and anthropology. Importantly, it also features a number of chapters by Muslim scholars from Myanmar, some based in Myanmar while others are based abroad, who represent a diverse range of ethnic backgrounds. My own chapter focuses on Islamic personal law in the general courts in Myanmar as a site of interaction between Muslims and the state. 



“For all too long, Muslims in Burma/Myanmar have remained an ‘invisible minority’, and the attention they’ve begun to receive in recent years has come only in the sad context of persecution and violence. This book succeeds not only in providing much needed historical, sociological, and political contextualisation of recent developments and trends, but also in restoring Islam and Muslims to their rightful place as established fixtures and active forces in the making of Burmese history and society. Melissa Crouch and the other authors in this volume have done a great service – intellectually and politically – by assembling this excellent collection of essays. Professor John Sidel, London School of Economics and Political Science and author of Riots, Pogroms, Jihad: Religious Violence in Indonesia (Cornell University Press) 
“A first glimpse of Muslims in Myanmar, this book sets the stage for what will hopefully become a new field of research on Islam in Southeast Asia. Bringing together a wide range of voices, Crouch provides a window from which we can peer into the precarious lives of people who have until recently been unknown to the global, reading public. Professor Anver Emon, Faculty of Law, University of Toronto, and author of Islamic Natural Law Theories, and Religious Pluralism and Islamic Law: Dhimmis and Others in the Empire of Law (OUP). 
In a field of scholarship where it is assumed that Buddhism is the primary influence on the state and the majority of Myanmar’s citizens, this book makes an important intervention in breaking ground for the further study of a minority group in Myanmar that is not only marginalized politically but virtually ignored academically.” Dr Matthew Walton, Aung San Suu Kyi Senior Research Fellow in Modern Burmese Studies, St Antony’s College, University of Oxford 
“This highly informative yet eminently accessible set of studies of Islam in Burma/Myanmar is surely most welcome by specialists and general audiences alike at multiple levels. These thoughtful and authoritative studies of the mediation of competing claims in national politics and policy are celebrated for defying the myth of the orthodoxy of Middle Eastern Islam and its pretensions of Islamic states.”Professor Abdullahi Ahmed An-Na‘im, Emory University Law School and author of Islam and the Secular State: Negotiating the Future of Sharia (2008). Martin Van Bruinessen (2018) ‘Book Review’, 174 (2-3) Bijdragen tot de taal-, land- en volkenkunde / Journal of the Humanities and Social Sciences of Southeast Asia, 305-310.Mukul Kesavan, ‘Murderous Majorities’ The New York Review of Books, January 2018Imtiyaz Yusuf, Journal of Islamic Studies (Oxford University Press) 2018

Burmese translation of Journal Issue on Religion

ABurmese translation of a journal issue on Religion, Law and Society in Myanmar has recently been made available online. You can find the Burmese text of the issue of The Review of Faith & International Affairshere.
The volume includes the following articles

  • Melissa Crouch, “Constructing Religion by Law in Myanmar”
  • Tharaphi Than, “Nationalism, Religion, and Violence: Old and New Wunthanu Movements in Myanmar”
  • Susan Hayward, “The Double-Edged Sword of ‘Buddhist Democracy’ in Myanmar
  • Matthew J. Walton, Melyn McKay, and Daw Khin Mar Mar Kyi, “Women and Myanmar’s ‘Religious Protection Laws’”
  • Nyi Nyi Kyaw, “Alienation, Discrimination, and Securitization: Legal Personhood and Cultural Personhood of Muslims in Myanmar”
  • Benedict Rogers, “The Contribution of Christianity to Myanmar’s Social and Political Development”
  • Saw Hlaing Bwa, “Why Interfaith Dialogue is Essential for Myanmar’s Future”

Asian Constitutional Law Forum 2015

Next week NUS will host the Asian Constitutional Law Forum on 10-11 December 2015.

The workshop provides a venue for distinguished scholars and new scholars to share their research and ideas on Asian constitutional law, to expand collaborative research networks, and to facilitate publications. The 2015 Forum, organised by the Centre for Asian Legal Studies will address the theme of constitutionalism in the courts, and will look at constitutional cases, issues, and overall performance of the judicial branch across Asia as judiciaries establish their independence of the other branches and encounter new and challenging issues. 

The Forum was first held at the Seoul National University, Korea in 2005; the second meeting was at the Centre for Asian Legal Exchange at Nagoya University in 2007; the third at the College of Law of National Taiwan University in 2009; the fourth at the Centre for Comparative and Public Law at the Faculty of Law, University of Hong Kong in 2011; and the fifth at the Centre for Public Law at Tsinghua University School of Law in Beijing in 2013. This year the Forum is being held in South East Asia for the first time.

My own paper will look at Myanmar’s Constitutional 2011-2015.