New Books Network podcast on Myanmar’s Constitution

The tail end of the twentieth century was a good time for constitutional lawyers. Leapfrogging around the globe, they offered advice on how to amend, write or rewrite one state constitution after the next following the collapse of the Soviet Union and with it, the communist bloc. Largely overlooked in the flurry of constitution drafting in this period, officials in Myanmar worked away on a new constitution without any experts from abroad—or, for that matter, many of those at home. Soldiers watched over them, dictating terms for what became the 2008 Constitution of Myanmar: the document that lays the parameters for formal political contestation and representation there today. 

The country gets set to go to the polls in November 2020. In this episode of New Books in Southeast Asian Studies with host Nick Cheesman, Melissa Crouch discusses her The Constitution of Myanmar: A Contextual Analysis (Hart, 2019; shortlisted for the book award of the Australian Legal Research Awards), and with it, the constitutional drafting process, its output, and its implications for politics in Myanmar now and in the foreseeable future.

Follow the link to the podcast here

Why Myanmar’s Elections Will be Neither Free, Fair nor Safe

*This article was first published in The Interpreter by the Lowy Institute

We all desperately wanted Myanmar to be a democratic success story, myself included. In 2015, I witnessed the historical national election when the Aung San Suu Kyi’s political party won enough seats to form government.

Five years later, on 8 November, people in Myanmar will again go to the polls. To understand what is at stake in 2020, the international community needs to question the assumption that the 2015 elections were free and fair for all.

In the lead up to the 2015 elections, Rohingya who held temporary identity cards were excluded from voting. This contradicted past political practise. From 2010 to 2015, both citizens and a range of people with other recognised forms of identity could vote and run for public office.

In fact, if we go back to the 1990 elections, at least some Rohingya were able to run for public office. Of course, the military never honoured the results of that election. This is the reason why elections are both highly significant and hotly contested in Myanmar.

In the 2010 elections, some Rohingya, many of whom have temporary identity cards, were able to vote and run for office. Three Rohingya were elected to the parliament to represent constituencies in northern Rakhine State. In hindsight, this now seems remarkable.

By 2015, Rohingya who held temporary identity cards were effectively disenfranchised.

Aung San Suu Kyi’s National League for Democracy (NLD) did little to stop this. In fact, it chose not to include any Muslims in its Central Executive Committee and failed to field any Muslim candidates.

Prominent lawyer Ko Ni criticised the NLD for giving in to the pressure of Buddhist nationalists, instead of standing up for Muslims and their right to be included in democratic politics. The NLD’s approach to the 2015 elections was widely perceived by the Muslim community as betrayal.

For Ko Ni, the combination of the disenfranchisement of the Rohingya and the more subtle decisions by parties like the NLD to exclude Muslim candidates meant that 2015 was in fact not a free and fair election for all.

Ko Ni himself was a Muslim. He was also an advocate for constitutional change, unafraid to call for a gradual retreat of military officers from parliament, where they sits alongside elected civilian representatives. Ko Ni was suddenly and tragically assassinated in early 2017.

Like me, Ko Ni would have been horrified by what has happened since. By August 2017, hundreds of thousands of Rohingya refugees fled to Bangladesh in an exodus unprecedented in scale and speed. There are now some 900,000 refugees in camps in Bangladesh.

Journalists in Myanmar who have tried to report on the massacres of Rohingya that took place have been imprisoned.

There are now a whole new set of challenges for the 2020 elections compared to five years ago.

Many countries around the world are dealing with the complexities of holding an election during a global pandemic.

Some have postponed elections or modified how elections are held to address grave public safety concerns. The conditions now suggest the Myanmar government must seriously consider postponing elections.

Myanmar now has over 27,900 covid-19 cases, more than Thailand and Malaysia. Most of these cases were detected in just the past few weeks.

The weak state of health infrastructure in the country means there is little capacity to respond to a large health crisis. The lack of testing and treatment facilities means the full impact of covid-19 remains unknown.

In addition to the concerns of holding a national election during what is really Myanmar’s first wave of covid-19, human rights groups have led calls for the Rohingya in Bangladesh, and for those who are still displaced within Myanmar, to have a right to vote in the election.

It is hard to see how the election will be free and fair for all, nor how the public will be kept safe from the threat of covid-19. Instead, there is the risk of the elections supercharging the spread of covid-19 in Myanmar.

Myanmar’s government must think twice before holding the elections in November. The combined challenges of electoral disenfranchisement and the public health crisis of covid-18 demands no less.

UNSW ASEAN Conference

The UNSW ASEAN Conference 2020 begins this Saturday. With over 40 speakers, this student run initiative is designed to promote engagement and debate on key issues facing ASEAN.

There are a series of online events held over three weeks with each day focusing on a specific pillar:

1. Socio-Cultural Pillar: Held on the 10th October 2020

2. Economics Pillar: Held on the 17th October 2020

3. Political-Security Pillar: Held on the 24th October 2020

To register see here: https://www.unswaseanconference.com/

#uacon2020

Webinar: Constitutional Democracy in Southeast Asia

On 25 August 2020, the Asia Forum in New Zealand will host a webinar on ‘The Crisis of Constitutional Democracy in Southeast Asia’ 

Guest Speaker: Melissa Crouch, UNSW Law

Event Date: Tuesday 25th August 2020

Event Time: 5:00 pm-6:00 pm

Event Location: *ONLINE EVENT* | Zoom Meeting. Zoom Meeting hosted by Asia Forum, Wellington.

Register in advance for this meeting:

https://us02web.zoom.us/meeting/register/tZIpdOyprzIoHtcvtPdQLCgeJJzEv0uRFWdg

After registering, you will receive a confirmation email containing information about joining the meeting

For further details see here

Southeast Asian democracies in declining health amid covid-19

*This piece first appeared in The Interpreter on 3 July 2020

The Covid-19 pandemic is impacting democracies in the Asia-Pacific region in ways that demand Australia’s attention. 

The ability to weather a crisis of this magnitude depends upon partnerships and collaboration – economic, social and political – with key countries in the region. These partnerships are more difficult when democracy hangs in the balance.

Before the pandemic, many observers discussed and debated the illiberal turn in Southeast Asia. So while it is not the cause of illiberalism and the expansion of arbitrary power, Covid-19 may exacerbate this trend.

The shift was already evident in the crackdowns on political opposition in Cambodia, the use of constitutional reform to consolidate military influence within the civilian government in Thailand, and the increasing violence and illiberalism of President Duterte’s government.

The shining example of democracy in the region, Indonesia, has in recent years begun to lose its democratic credibility. There were growing concerns that despite President Joko Widodo (Jokowi) winning a second term, the government was compromising on the hard-won progress of democracy and accountability.

Government critics were targeted with charges of treason and court trials. The powers of the Anti-Corruption Commission were compromised. And Prabowo Subianto, the presidential rival of Jokowi, was welcomed into the cabinet. There was no doubt that pre–Covid-19, democracy was under threat.

But Covid-19 will have a long-term impact on countries in Southeast Asia, not least on the health of democracy in the region.

In January 2020, Thailand identified the first case of Covid-19 outside China. Singapore, despite acting fast, now has the highest number of cases, exposing the vulnerabilities of its low-paid 1.5 million migrant workers.

Indonesia has the highest number of deaths, with government denial and confusion leading to an alarmingly high number of deaths of doctors and nurses. There have been some successes, with Vietnam the first country in the region to open up again after lockdown measures.

There are four trends we can see in the ways governments in Southeast Asia have responded to Covid-19.

First, as in many other parts of the world, government power has been used at the expense of human rights. More than just lockdowns and curfews, citizens have been targeted with criminal charges for criticising the government’s handling of the crisis.

Civil and political rights have become victims of Covid-19. Journalists have been arrested for criticising government responses to the pandemic in Indonesia. In Myanmar, journalists interviewing the Arakan Army, now branded a terrorist organisation, have been targets of criminal sanctions.

The second trend is the increasing role of the military and police, with Covid-19 creating opportunities for the expansion of military power and security measures. In Myanmar, a Covid-19 committee with both civilian and military representatives has been formed to address the health crisis, which blurs the line between civilian and military authorities.

The role of the military is also evident in other parts of the region. Even in Indonesia, many the civilian authorities in high-level positions in the health sector who are leading the pandemic response are in fact former military officers.

The third trend is that, unlike other parts of the world, the courts are less active – or absent altogether – as a check and balance on executive power. There are some exceptions, and the challenge to the president’s decree on the economic stimulus in Indonesia’s Constitutional Court is one example. Activists fear that that decree is unconstitutional because it grants immunity to government officials involved, raising fears of the potential for corruption.

Across Southeast Asia, the courts have more often been used to enforce government power in arbitrary ways that exacerbate social inequalities, such as the debate in Myanmar over different penalties given to Buddhists as opposed to minority Christians or Muslims found to be in breach of Covid-19 restrictions.

The final trend is that armed conflict has continued for the most part. Conflict persists in the southern Philippines and in southern Thailand, and across Myanmar’s border regions, particularly in Rakhine and Chin states.

The call by the UN Secretary-General for a global ceasefire, urging all parties to conflict to focus instead on combating Covid-19, has largely gone unheeded in Southeast Asia. In May, the military in Myanmar finally declared a partial ceasefire, but conveniently created an exception for areas where the fighting is worst.

In terms of the use – and abuse – of government power, Covid-19 is not such a new world for people in many parts of Southeast Asia. The expansion of government power is a concern, but the declining health of democracy in the region was not caused by Covid-19, although it will no doubt exacerbate this illiberal turn.

Australia’s ability to pull through in economic and social terms depends upon maintaining strong connections with the region. This crisis of democracy presents a serious challenge, and Australia must support those in the region working to reverse the decline.

Webinar: Dominion Constitutionalism

Webinar: 7 July 2020

On 7 July 2020, a webinar will be held to launch the symposium on New Dominion Constitutionalism  for the  International Journal of Constitutional Law  (ICON) in issue 17:4, available here. The webinar will feature authors and editors of the symposium. This seminar will officially launch this symposium, introduce the concept and case studies of New Dominion Constitutionalism, and discuss how this research opens up new avenues in comparative  constitutional scholarship.

About the Speakers:
Prof. Rehan Abeyratne, CUHK LAW
Prof. Rohit De, Yale University
Prof. Mara Malagodi, CUHK LAW
Dr. Luke McDonagh, London School of Economics and Political Science
Prof. Peter Oliver, University of Ottawa
Prof. Thomas Poole, London School of Economics and Political Science

Commentator: Prof. Melissa Crouch, University of New South Wales

To register for the webinar see here

Asian Studies at the NLA

This week has been a low in government commitment to Asia literacy, with the National Library of Australia signalling it will make major cuts to its Asian Studies collection. See further details here:

The Asia Society – Library Lockdown

Edward Aspinall, Asia illiteracy, Inside Story

Tessa Morris-Suzuki, Out of Asia

Online petition

Japan Foundation, Cuts to National Library of Australia Asia Collection

Covid-19 and Constitutionalism in Asia Webinar

Virtual Roundtables on Asian Law

The first roundtable of the Centre for Asian Legal Studies at the National University of Singapore will be on “COVID-19 and Constitutionalism in Asia: Executive Power in A Time of Crisis”

Date: May 27, 2020 10:00 AM in Singapore

Speakers:

1) Kevin Tan, National University of Singapore

2) Yeh Jiunn-Rong, National Taiwan University (Former Minister of Education of Taiwan)

3) Aparna Chandra, National Law University, Delhi

4) Melissa Crouch, University of New South Wales

Link to recording

Pre-emptive Constitution-making

My article on ‘Pre-emptive constitution-making: Authoritarian Constitutionalism and the Military in Myanmar” (2020) Law & Society Review 54(2) is now out

Abstract: Constitutions are an important feature of many authoritarian regimes. But what role do they in fact perform in processes of authoritarian regime stabilization and legitimation? Much of the contemporary literature focuses on authoritarian constitutionalism in transitions away from constitutional democracy. This article considers the opposite scenario: pre-emptive constitution-making as a mechanism of authoritarian constitutionalism to contain a potential transition toward constitutional democracy. This is illustrated through the case of Myanmar. Since the 1960s, Myanmar has experienced successive periods of direct military rule without a constitution, followed since 2011 by a new constitution. Adding to the comparative literature on constitutions in authoritarian regimes, this article explains how pre-emptive constitution-making limits a transition to liberal democracy and contributes to authoritarian-regime resilience. This article further identifies “military-state” constitutionalism as a variation of authoritarian constitutionalism in Myanmar. The case of Myanmar offers comparative insights into the ways constitutions are used to contain transitions to constitutional democracy and illustrates the varieties inherent in authoritarian constitutionalism.