Melissa Crouch

The Politics of Court Reform: Judicial Change and Legal Culture in Indonesia

Melissa Crouch (edited volume, Cambridge University Press)

In this volume, experts on Indonesian law and courts reflect on the growth and changes in the role and function of courts in Indonesia. Indonesia’s judiciary is a critical part of its democratic system. Since the transition from authoritarian rule in 1998, a range of new specialized courts have been established, from the Commercial Court to the Constitutional Court and the Fisheries Court. In addition, constitutional and legal changes have affirmed the principle of judicial independence and accountability. A raft of judicial reform programs have been pursued to address various issues within the judicial system, not the least of these being corruption. The growth of Indonesia’s economy, combined with the size as the fourth most populous country in the world, means that the courts are facing greater pressure to resolve an increasing number of disputes – from contracts to property disputes, criminal matters, or family law. The aim of this volume is to offer in-depth reflections on the role of the courts and legal reform in Indonesia. The chapters acknowledge that late Professor Dan S Lev was a leading scholar of the politics of courts in Indonesia. The chapters share a common concern by reconsidering the relevance of Lev’s work in light of the changes to the judiciary in Indonesia. Not least of these is the question of whether Lev’s reflections on legal culture, and particularly his concerns about the increase of corruption and the decline in professionalism, remain true today and to what extent legal reforms have addressed these concerns. This volume will be of interest to scholars of law, political science, law and development, Asian Studies, the politics of courts, and law and society.

“This volume is a major forward contribution to and commentary on the pioneering work of Dan Lev on the law, courts and Politics of Indonesia–an ideal path for bring comparativists up to date.” Professor Martin Shapiro, University of California Berkeley
“Unprecedented in scope and depth, The Politics of Courts in Indonesia is a milestone in scholarly analysis of the third branch of government in Indonesia. Focusing on the array of specialist courts that have proliferated in the country over the last twenty years, it casts a critical eye on numerous aspects of the functioning – and, often, dysfunction – of the Indonesian judiciary. The contributors make a signal contribution to our understanding of the achievements and shortcomings of judicial reform, and of the place of courts in Indonesian society writ large.”Professor Edward Aspinall, Australian National University
“This volume presents a remarkable series of critical analyses of Indonesian constitutionalism, politics, and legal practice over the two decades since the fall of Suharto’s New Order – through critical re-engagements with socio-legal approaches to more than a dozen distinct court systems in the country. It is thus both an impressive tribute to the legacy of Dan Lev, and an important original contribution to Asian legal studies in its own right.”Professor R. Michael Feener, Oxford Centre for Islamic Studies

Judicial Independence in Asia

On 14 January, the Nagoya University Centre for Asian Legal Exchange (CALE) and the Graduate School of Law are hosting a webinar on judicial independence in ASEAN.

In order to safeguard independent judiciary in any jurisdiction, policymakers have to create adequate frameworks for appointing and promoting judges, as well as securing their independent status. ASEAN member states, in their endeavors to create a new era judiciary which is independent and effective, face numerous challenges. For example, in Cambodia, the Minister of Justice has an authority to influence every stage of the decision-making process concerning judges’ careers. In Myanmar, the direct involvement of ex-military personnel in the judiciary questions both the impartiality and independence of judges. In Vietnam, the principles of democratic centralism which prioritize the supremacy of legislature eventually affect the whole judicial sector, including independence of judges. Thus, the judiciaries in many ASEAN member-states face similar issues, although different historical, cultural, and political backgrounds underlie the problem.The program for the workshop is as follows:
Introduction to the Workshop, Khin Khin Oo, (Professor, Department of Law, University of Yangon)Moderator: Aziz Ismatov (Assistant Professor, CALE, Nagoya University, Japan)

1) Andrew Harding (Professor of Law, National University of Singapore)“Judicial Reform and the Law and Development Movement”

2) Melissa Crouch (Professor, Faculty of Law, University of New South Wales)“Judicial Independence in Indonesia”

3) Cho Mar Htay (Deputy Director, Constitutional Tribunal of the Union of Myanmar)“Challenges of the Independence of the Constitutional Tribunal in Myanmar”

4) Ratana Taing (Secretary-General of the Constitutional Council of Cambodia)“The Constitutional Council of Cambodia: An Independent Institution in Ruling on ElectoralLitigations”

5) Ngoc Son Bui (Assistant Professor of Chinese University of Hong Kong)“Judicial Independence in Vietnam”

Q & A, followed by closing remarks by Jonathan Liljeblad (Senior Lecturer, College of Law, Australia National University)

Date/ Time: January 14 (Thursday) 2021, 13:00 – 15:00 (Japan) 10:30 – 12:30 (Myanmar)

Constitutionalism in Crisis? The Path ahead for Southeast Asia

On 16 December, the Asia in Review online panel discussion series on law and politics in Southeast Asia presents “Constitutionalism in Crisis? The Path ahead for Southeast Asia”.

This event is jointly hosted by the Asian Governance Foundation (AGF), German-Southeast Asian Center of Excellence for Public Policy and Good Governance (CPG) at the Faculty of Law, Thammasat University and the Hanns Seidel Foundation.

The panelists include:

Maria Ela L. Atienza, Prof. Dr., Department of Political Science, University of the Philippines Diliman

Melissa Crouch, Assoc. Prof. Dr., Law School, University of New South Wales Sydney;

Thitinan Pongsudhirak, Assoc. Prof. Dr., The Institute of Security and International Studies, Faculty of Political Science, Chulalongkorn University

Dian A H Shah, Assist. Prof. Dr., Faculty of Law, National University of Singapore

Bjorn Dressel, Assoc. Prof. Dr., Crawford School of Public Policy, College of Asia and the Pacific, Australian National University

Wednesday, December 9, 2020 at 3 PM UTC+11 – 5:30 PM UTC+11

Join Webinar

Government, University Responsible for decline in Indo-Pacific literacy

*This article first appeared in The Sydney Morning Herald on 15 December 2020.

La Trobe, Swinburne, Murdoch and Western Sydney University. These are some of the Australian universities considering axing various Indo-Pacific language programs from Indonesian to Hindi. It’s feared other universities may follow suit.

Abolishing language programs is a dumb move. Australian universities are a key ingredient in the government’s commitment to engagement with the Indo-Pacific.

Universities are essential training grounds for a future generation of Indo-Pacific literate Australians.

The decline in programs corresponds with a decline in enrolments. This is evident with the Indonesian language.

In the 1990s, enrolment in Indonesian language was at its height, with 22 programs at Australian universities. In the decades since then, there has been a major decline.

According to David Hill, emeritus professor of south-east Asian studies at Murdoch University in Perth, in 2019 there were only about 14 Indonesian language programs left at Australian universities. As a result of COVID-19, that number may fall further.

Australian universities must retain language programs, which are vital to equip the next generation for smart engagement with the Indo-Pacific.

Institutional commitments to language programs by universities are crucial because studying a language requires a significant investment of time, commitment and money.

As part of my Arts degree I undertook an Indonesian language program, building on my four years of Indonesian language studies in high school.

Yet this was in mid-2000s, when I was one of about 400 students studying Indonesian in Australia.

By 2014, those numbers dipped below 200 equivalent full-time students. It is feared that in the future the number of students could be much less.

At university, I was privileged to be taught by the likes of Arief Budiman, a well-known activist and scholar, and Professor Ariel Heryanto, a cultural studies expert.

As part of my degree, I also took Indonesian studies programs like politics, media, religion, law and society. This helped me to appreciate the great diversity and richness of the country’s history, people and culture.

My university also facilitated several internships in Indonesia. It was through contacts at university that I heard about the Australia-Indonesia Youth Exchange Program. This collective experience with a group of 15 Australians and 15 Indonesians set me on a course of lifetime engagement with Indonesia.

Many of the Australians on that youth exchange program have found exciting and fulfilling careers in diplomacy, business, academic, education and the civil service. Their skills in the language and their knowledge of Indonesian enabled them to achieve the vocations they now pursue.

Through my university, I also received support from my faculty to undertake an internship with the Office of the Ombudsman in Yogyakarta.

These short-term trips would not have been as rich and meaningful if I did not have basic competence in the language.

In short, my years of studying the language in high school and at university equipped me for deep engagement with Indonesia.

Our universities are now at risk of curtailing access to Indonesian language programs for a future generation of students.

If the decision by some Australian universities to close language programs is dumb, then the Australian government is dumber.

Over the past two decades, the government has been told time and time again that student enrolments in languages of the Indo-Pacific are falling, particularly for Indonesian. This is a well-established fact.

Yet the federal government has done nothing about it. Short-term study abroad is no quick fix for an Indo-Pacific literacy crisis. It’s great to have the Governor-General of Australia studying Indonesia, but what about the future generation?

The government frequently refers to its commitment to the region and its Indo-Pacific strategy, as set out in its 2016 Defence Paper and 2017 White Paper.

Yet it has failed to live up to this aspiration with real policies that create incentives for Australian students to study languages of the Indo-Pacific and the necessary funding for institutions to make this happen.

What we are left with is a future where there are fewer graduates of Australian universities than ever with basic competence in one language of the Indo-Pacific.

These graduates are going into business, diplomacy, academia, education and science with less knowledge than ever before about our neighbours.

Collaboration and partnership in the Indo-Pacific region require mutual understanding.

Australia’s bilateral relationships are strengthened when Australians take the time to learn a language.

To take one example, the landmark Indonesia Australia Comprehensive Economic Partnership Agreement should see more Australians incentivised to study the language, rather than less.

The more students studying Indonesian language, the greater chance we have of building strong relationships with our most important neighbour. Our economic, diplomatic and cultural ties remain hollow without a basic appreciation for the language.

The dual lack of commitment by Australian universities and the government to invest in language capabilities affects our engagement in the region.

Even the embassies based in Australia agree. That’s why the recent consultations to axe language programs at some universities have received a strong and swift response from both the Indian embassy and the Indonesian embassy.

That’s right, our neighbours know it’s important for us to learn their language more than our own government and universities do.

And there lies the challenge for 2021: both the government and Australian universities must work together to ensure Asian language programs not just survive, but thrive, post COVID-19.

Australia-Indonesia relations need to talk the talk

*This article was first published in The Interpreter, 14 December 2020

This year has been one of great tumult at Australian universities. Not least is the nonsensical proposals to axe Indonesian language programs by several universities such as La Trobe, Western Sydney University and Murdoch.

Australian universities are closing the door of opportunity to the wide range of vocations open to students who have skills in Indonesian language.

I can’t help but think back to all the doors that have opened for me because I chose to study Indonesian language at university.

One of the doors that opened as a result of studying Indonesian was being competitively selected as a participant in the Australia Indonesia Youth Exchange Program (known as ‘AIYEP’).

AIYEP is now in its 38^th year. Every year, the Australian and Indonesian governments fund 15 Australians and 15 Indonesians to travel together in both countries.

The Indonesians come to Australia for two months for homestay, work experience and cultural engagement. They are then joined by the Australians who travel back with them to Indonesia for two months.

When I participated, we spent one month in a village in South Kalimantan, and then one month in the city. We had homestay arrangements with local families. We had work experience placements.

All of these experiences were facilitated by the fact that I spoke Indonesian. Of the Australians on that trip, only two did not speak Indonesian.

I recall that their one big regret was that they didn’t speak any Indonesian. Very often we found ourselves in situations where knowing some Indonesian was essential to get by.

The most memorable part of the trip was the cultural performances, such as this performance.

Yes, Australian men can learn not only to dance a traditional Indonesian dance but sing too. It took countless hours of practise, but they mastered it.

Our performance prowess was on full display at the 25^th anniversary celebration of AIYEP in Jakarta.

We performed the Tari Saman, a traditional dance, countless times at schools and community events and government functions.

On this occasion, we were in two rows, I was in the front row (second to the left), along with all the Australian girls and Indonesian guys. The Australian guys and Indonesian girls lined up in the back row.

The dance was timed to the sound of the voice of one of the Indonesian participants who had a truly marvellous voice.

The charm of the dance is a set of repetitive arm and hand movements performed while kneeling.

I recall it took us Australians a long time to memorise the lyrics to songs, but we did it. Our Indonesian counterparts were so proud of us.

All of us improved in our Indonesian language skills as a result of that trip. We also developed lifelong friendships and ties to Indonesia.

It has been incredible to see the doors of opportunity that have opened for my fellow Australian participants in their careers since that exchange trip as a student.

Some are using their Indonesian language skills in the Australian civil service, some in diplomacy, some are English language teachers in Indonesia, while others are researchers and academics.

At the time of that trip, I had completed four years of Indonesian language study at high school followed by three years of Indonesian language study at university.

Without the opportunity to advance my language skills at an Australian university, I would not have gained as much from the program as I did.

I was able to converse with the people in the village we stayed at and talk with my homestay parents.

I was able to speak in public to students at schools, and at community and government events.

I was able to speak to court officials in my work placement at the Religious Courts in Banjarmasin.

My Indonesian language skills enabled me to learn so much about Indonesian culture, and in doing so gain perspective upon Australia and its multicultural community.

If I had not known Indonesian, it would have been a wild guess as to what was going on in some situations where we found ourselves without translators and without our Indonesian counterparts.

All those years of studying Indonesian paid off during experiences like that.

There is something special about studying a foreign language with a cohort of others struggling to master a new vocabulary, strange grammar and difficult pronunciation. There is also an enormous sense of personal achievement.

I now wonder whether there will even be a new generation of Australians engaged with Indonesia who can speak Indonesian.

At Australian universities today there are just 14 Indonesian language programs left. In the 1990s, there were 22 programs across Australia. In 2021, that number may fall even further if some of the proposed program cuts go ahead.

The future of Australia-Indonesia engagement depends upon the willingness and ability of the next generation of Australians to speak Indonesian. And then to use their language skills in the areas of business and trade, arts and culture, education, diplomacy and research.

Australian universities must keep the long duree in view.

What Australia needs is universities that are aware of their central role in Australia-Indonesia relations.

Indonesian language programs, both practically and symbolically, are central tenants of a universities’ commitment to Australia-Indonesia relations.

The strength of our connections to Indonesia lies with youth engagement. If Australian universities close shop on Indonesian language programs, they are literally closing the door of opportunity for the next generation of Australians.

Anti-Democratic Constitutional Landmarks

*This post was first published on the International Association of Constitutional Law blog

The idea of constitutional landmarks contains a set of basic presumptions. It presumes that courts are important and that they receive cases. It presumes that constitutional landmarks are based upon a liberal democratic conception of law. It presumes that courts offer reasons for their decisions. And it presumes that cases heard by the courts have meaning and legitimacy. This is the case in many countries around the world. But what about many other jurisdictions where these assumptions do not hold? There may be no court with the power of constitutional review. Or there may be a court, but it lacks legitimacy or power, or simply hears few if any cases.

In this post I focus on Myanmar as an example of a country in the Global South that has a Constitutional Tribunal, now approaching ten years old. Depending on how you count the cases, there have been less than twenty cases in total. In some years, the Constitutional Tribunal has not received a single case. Can we even speak of landmark constitutional cases in this context? From one perspective, no. In my book, The Constitution of Myanmar, I have argued that it is in the legislature rather than the Constitutional Tribunal where significant debate and decisions over the meaning of the Constitution takes place. However, for the purpose of this post, I will focus on the Citizenship Case decided by the Constitutional Tribunal in 2015 as an example of an anti-democratic constitutional landmark. I suggest that anti-democratic constitutional landmarks are decisions by constitutional courts that have a negative impact on democracy and reduce the scope for democratic participation. Anti-democratic constitutional landmarks compromise the quality of democracy, affecting elections, public participation and the protection of rights.

The Constitutional Tribunal was established in 2011 in the inaugural year of Myanmar’s political transition from direct military rule. This transition was enabled and facilitated by the 2008 Constitution. The Constitution was the product of pre-emptive constitution-making, that is, constitution-making was used to prevent a transition to constitutional democracy and to entrench the role of the military in governance. The Constitutional Tribunal is the first separate judicial institution in Myanmar to have the power of constitutional review. Although the country self-identifies as a common law legal system, or at least has a common law history, it has a Constitutional Tribunal based on a civil law model. The Constitutional Tribunal co-exists uneasily with the Supreme Court; the latter judicial institution hears constitutional writs cases, a revival of a past legal practice.

The structural design of the Constitutional Tribunal and narrow standing rules means that it is an elite institution. Only select elite actors from the executive, legislative and judicial branches have access to the Tribunal, such as the President, the Chief Justice of the Supreme Court, Speakers of the legislature and the Union Election Commission. Individuals or civil society cannot bring cases. As a result, the Constitutional Tribunal primarily facilitates constitutional dialogue between and among the military and democratically elected representatives.

The anti-democratic question at the heart of the 2015 Citizenship Case was whether the Constitutional Amendment Referendum Law had gone beyond the legal scope of the constitutional right to vote by including temporary registration card holders (then known as white card holders) among those who could vote in a constitutional referendum. Rather than seeking the protection of a constitutional right, the case was about excluding a certain group of people (the Rohingya) from the opportunity to have this right.

The year this case was heard was notable for two reasons. It was the year of the culmination of the first major effort to amend the Constitution. And it was the first time the National League for Democracy (NLD ), the pro-democratic political party of Aung San Suu Kyi, was running for government, after it had refused to participate in the 2010 elections.

The Union Parliament was preparing for the possibility of a constitutional referendum by passing a law regulating who can vote in a referendum and how it will be held. The key debate was whether temporary registration card holders should be allowed to vote.

An application for constitutional review was brought to the Constitutional Tribunal by a member of the Amyotha Hluttaw (upper house), the then chairperson of the Arakan National Party known for his anti-Rohingya views, together with other members of the Amyotha Hluttaw. They argued that the Constitutional Amendment Referendum Law was inconsistent with the Constitution because it would permit temporary registration card holders to vote in a referendum. The applicants sought clarification of the constitutional provisions on the right to vote and to be elected, and the process and eligibility of a citizen to vote (Constitution, ss 38(a), 369, 391(a)).

The applicants argued that sovereign power resides in citizens (Constitution, s 4) and therefore only citizens should have the right to vote in a referendum on constitutional amendment. They emphasised that under the Burma Citizenship Act 1982, both associated and naturalised citizens must swear an oath of loyalty to the state, but in contrast temporary card holders are not required to swear an oath. They implied that temporary card holders could not be trusted to be loyal to the state and therefore should not be allowed to vote in a constitutional referendum.

The Constitution does contain a list of categories of people who have no right to vote, such as members of a religious order (eg monks; Constitution, s 392). However, temporary card holders are not listed here, which could have been read to imply that white card holders can vote, but the Tribunal did not come to this conclusion.

In effect, the applicants were seeking to restrict the constitutional right to vote and to be elected to citizens in order to deny temporary registration card holders from enjoying this right. This case came after serious violence against the Rohingya in Rakhine State in 2012 and the spreading of violence that targeted other Muslim communities across Myanmar.

The applicants were successful in this case. The Constitutional Tribunal held that the provision of the Constitutional Amendment Referendum Law allowing white card holders the right to vote was unconstitutional because it was inconsistent with sections 38(a) and 391 of the Constitution. The decision of the Constitutional Tribunal supported the broader ethno-nationalist agenda of exclusion of groups not perceived to be official ‘national races’ (the term used by the government in Myanmar).

While no constitutional referendum was held that year, this decision was a part of wider efforts by the Union Election Commission and the Union Parliament at the time to disenfranchise over one million people, most of whom are Rohingya. The 2015 election was the first time that white card holders were officially denied the right to vote in an election and denied the right to run for political office. The Constitutional Tribunal’s decision is an example of the use of law to exclude the Rohingya, or what I have referred to as the legal denial of the Rohingya.

The 2015 Citizenship Case, while not the sole cause of the disenfranchisement of the Rohingya, has had a negative impact on democracy and reduced the scope for democratic participation in Myanmar. Since then, from 2016-2017, we have seen horrific violence and a mass exodus of Rohingya to Bangladesh. In the 2020 elections, those with temporary identity cards were again not able to vote and Muslims who tried to run for public office had their identity scrutinised.

It is not surprising to see the emergence of anti-democratic constitutional landmarks in Myanmar. The Constitutional Tribunal was created as part of an effort at pre-emptive constitution-making and is part of a system designed by the military to limit the nature and scope of democracy.

This case shows that anti-democratic constitutional landmarks have several functions. The ability to bring a case that has an anti-democratic objective to a constitutional court gives airtime and publicity to this agenda. A constitutional court may therefore become a forum for the public hearing of anti-democratic ideas. The issuing of a decision that endorses an anti-democratic petition gives legitimation and credibility to this agenda. Anti-democratic constitutional landmarks can have a long-lasting impact on the health of elections, public participation and the protection of rights.

More broadly, acknowledging and studying anti-democratic constitutional landmarks illuminates some of the unspoken assumptions about the very idea of constitutional landmarks in comparative constitutional law. Going beyond assumptions that constitutional landmarks are democratic or liberal is important to further our understanding of the role and function of courts in authoritarian regimes.

Suggested citation: Melissa Crouch, ‘Anti-Democratic Constitutional Landmarks: Myanmar’s Constitutional Tribunal and the Right to Vote’ IACL-AIDC Blog (8 December 2020) https://blog-iacl-aidc.org/constitutional-landmark-judgments-in-asia/2020/12/8/anti-democratic-constitutional-landmarks-myanmars-constitutional-tribunal-and-the-right-to-vote

The Future of Asian Studies

The Asian Studies Association invites you to a webinar to discuss the future of Asian Studies in Australian universities. Over the last two decades, policy settings and long-term trends in the university sector have placed pressure on Asian studies, undermining the study and teaching of some Asian languages and fields of study, while encouraging others. Hopes by successive generations of academics that Australian governments would invest systematically in Australia’s Asia expertise have not borne fruit. The current crisis of the Australian university sector as a result of the COVID pandemic is both accelerating these long-term trends, as well as adding acute new pressures. Yet amidst the gloom, opportunities remain.

In this open forum we invite participation from members of the academy, students, and members of the general public to take stock of the state of Asian Studies and to ask: Does Asian Studies have a future in Australian universities?

Speakers:

Professor Edward Aspinall, Australian National University, President, ASAA.
Associate Professor Melissa Crouch, University of New South Wales, Secretary ASAA.
Professor Kanishka Jayasuriya, Murdoch University.

Date: 27 November, 2020

Time: 2-4pm AEDT, 1pm-3pm AEST, 11am – 1pm WST

Podcast on Myanmar’s Constitution in Context

The Indonesian Journal of International and Comparative Law has a new podcast series, hosted by the Institute for Migrant Rights in Cianjur, Indonesia.

A podcast on the nature of democracy in Myanmar’s military-state can be found here, alongside other podcasts by scholars addressing a range of issues concerning international and comparative law.

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.