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.

Series on Asian Studies in Australia

Ed Aspinall and I have launched a special blog series on the state of the field of Asian Studies on the Asian Currents blog of the Asian Studies Association of Australia. This looks across the disciplines (law, political science, international relations, anthropology, history); languages (Japanese, Korean, Indonesian, Chinese) and area studies (Mainland Southeast Asia, Indonesia, South Asia, China, Northeast Asia, and Asian diasporas)


The series includes:

Asian Politics in Australian Universities, Michael Barr
Evolution of Mainland Southeast Asia Studies over the last 20 years, Patrick Jory
Twenty Years of Korean Studies in Australia, Ruth Barraclough
Chinese Studies in Australian Universities, Anne McLaren
Australian International Relations and Asia, Jennifer Canfield and Mathew Davies
Anthropology of/with Asia in Australia, Tanya Jakimow
Asian Law in Australian Universities: Research Centres as Critical Institutional Commitments, Melissa Crouch
South Asian Studies in Australia, Priya Chacko
The State of Indonesian Language in Australian Universities, David Hill
The Current State of Japanese Studies in Australia, Rebecca Suter

Asian Law in Australian Universities: Research centres as critical institutional commitments

*this was first published at Asian Currents, April 2020  

Asian Law in Australian Universities: Research centres as critical institutional commitments


Melissa Crouch, Law School, University of New South Wales (UNSW Sydney)

In November 2019, Edward Aspinall and I convened a workshop on the state of Asian Studies in Australia. Bringing together leading academics in Asian Studies, we discussed the state of the field for the past two decades (2000-2020) across the disciplines (law, political science, international relations, anthropology, history), languages (Japanese, Korean, Indonesian, Chinese) and area studies (Mainland Southeast Asia, Indonesia, South Asia, China, Northeast Asia, and Asian diasporas).


In this post, I reflect on the field of Asian law. While law as a discipline is grouped as part of the social sciences, it became clear from our discussions that the study and research of Asian Law has a distinctive history in Australian universities.


The study of law around the world has traditionally been the study of a national legal system. At its core, legal education remains this way, despite the turn towards transnational or global law over the past two decades. In Australia, there are over 800 academics at or above the level of Senior Lecturer based in Law Schools. These academics are experts in Australian law, a legal system based on the common law, derived from a history of settler colonialism and affiliated with Western liberal democracy. Most law academics are required to teach core courses in Australian law. If legal academics do engage in comparative work, the focus is often on the West – perhaps comparing the Australian legal system to that of England, Canada, the United States or New Zealand.


Among this academic cohort, there are just 34 academics based in Australian law schools with permanent positions who primarily focus on Asian law. These academics have a sustained academic career commitment to the study of law in Asia, and most either speak an Asian language, have undertaken sustained research in Asia and/or have Asian law as their primary research focus. Out of these 34 academics, China, Indonesia and India are the three most common areas of focus, with Japan, Singapore and Malaysia following behind. However, the majority these academics are concentrated at just five out of the 44 law schools in Australia. This greatly limits the opportunity most Australian law students might have to learn about the legal traditions and systems of Asia from Asian law scholars.


What is distinctive about academics working in the field of Asian law is that many (although certainly not all) are supported by research centres that reflect a certain institutional commitment on the part of their law school. Throughout the rise and fall of Asian Studies in the past two decades, the experience of law suggests that research centres are critical for specialised fields to foster the next generation of scholars of Asia specialists and to weather the insecurities of bilateral and trade relations.


Research Institutes in the Asian Century


It is undisputed that the 21st Century is the Asian Century. This idea is a reference to the rising economic, social and political influence of diverse societies in Asia. Research centres can play a major role in promoting the study and knowledge of Asia.


Generally, university-based research centres are a tangible demonstration of academic and research leadership. Research centres are a means of offering intellectual leadership, facilitating professional networks among scholars and students, and supporting their members through a range of activities including conferences, publications and public engagement. Research centres can facilitate interdisciplinary engagement, which is certainly a hallmark of Asian studies research centres in Australia.


Research centres offer a community of intellectual support for scholars and students. A key role for research centres is to train the next generation of scholars, which is particularly important in highly specialised areas of expertise. Centres are a critical means to facilitate student involvement in academic life, as research assistants, through academic events and projects, and through mentoring and career building exercises.


This core internal role of building and fostering a support research community is similar to Robert Cribb’s idea of ‘circles of esteem’ in academic life.[1]


Centres also play a critical external facing role – promoting a concentration of research expertise and priorities to a national and global audience. Given Australia’s place in the region, it makes sense for Australian universities and law schools to make institutional commitments to the study of Asian law through research centres in order to foster such expertise.


The Rise of Asian Law Research Centres in Australia


One characteristic that marks a university’s or a faculty’s institutional commitment to Asian Studies is the establishment of a research centre. There are at least five research centres specifically dedicated to the study of Asian law in Australia universities today. These research centres are concentrated at three of Australia’s 44 law schools. I acknowledge that some other centres and programs based at Australian law schools also foster scholarship on Asian Law even if this is not been their primary focus.[2]


Asian Law Research Centres at Australian Universities

1985, Asian Law Centre (ALC), the University of Melbourne

1995, Centre for Asian and Pacific Law (CAPLUS), University of Sydney

2013, Centre for the Study of Indonesian Law, Islam and Society (CILIS), University of Melbourne

2015, China International Economic & Business Law Initiative (CIBEL), UNSW Law

2015, Southeast Asia Law & Policy Forum, UNSW Law


These centres have a diverse range of expertise (that is, across the public-private law divide) and act as a hub for fostering higher degree research students and early career scholars who are developing region-specific expertise.


The Asian Law Centre has existed for 35 years, which is a remarkable achievement for a research centre at an Australian university. Mal Smith (d. 2006), a Japanese law expert, founded the Asian Law Centre at a time when interest in Japanese law was at a height. His institution-building efforts left a profound institutional legacy for the field of Asian Law.


This was followed in 1994 by the Centre for Asian and Pacific Law (CAPLUS) established by Alison Tey at the University of Sydney.


Law schools that support Asian law offer elective subjects that are either country or region specific (with the most common being China, Japan, Indonesia, South Asia and Southeast Asia) or subject-matter specific, such as Human Rights in Asia; Rule of Law in Asia; Asian Competition Law; Drugs in Asia; Law and Investment in Asia; and, Land Law and Development in Asia. However, student enrolments in such courses are generally low, with some exceptions. This is generally because law students are required to complete the ‘Priestley 11’ (a core set of Australian-focused law courses) to qualify to practise law, and so the number of electives they can choose is often limited.


The research of Australian-based legal scholars on Asia has often been driven by themes relevant to public debate, bilateral trade relations and global commercial legal practise. This includes all aspects of commercial law; legal pluralism; criminal law, particularly terrorism; and constitutional law.


From 2000 to 2010, there was a decline in the field in terms of government funding, a contraction in institutional university support and a decline in student numbers. Since the 2010s, there has been sporadic interest, institutional support and external funding. There has also been a rise in the focus on Chinese law, with several law schools hiring Chinese law specialists.


From 2014, law schools have also enhanced the opportunities for their students to study intensively in Asia through New Colombo Plan funding. Examples include short term law programs such as ANU’s program in Japan, Monash University in Myanmar; the University of Sydney in China, Japan, Indonesia and Malaysia; and UNSW in China, India, Vietnam and the Pacific.


There are also law study programs in Asia offered by consortiums such as the innovative Indonesian Law Practicum established in 2018, run by the Australian Consortium of In-Country Indonesian Studies (ACICIS). This program includes students from across 20-30 different Australian universities each year. There are now greater opportunities and more funding than ever before for Australian-based students to undertake intensive courses on Asian law in Asia.


Further, Asian law research centres have historically prioritised efforts to open access to primary legal materials of countries in Asia that can be difficult to access. For example, the Australian Legal Information Institute (AustLII) hosted jointly by UNSW Law and UTS Law has established a free online Asian Legal Information Institute. The AsianLII database covers 28 jurisdictions in Asia, and the most recent country database launch is the Myanmar Law database. Access to such sources is critical both for students and scholars of Asian law, as well as fulfilling a broader public service in enabling access to the law.


The Future of Asian Law in Australian Universities


An institutional history of 40 years of Asian law in Australia (1980s-2020) shows that the establishment and maintenance of Asian law centres by Australian law schools has been critical for three reasons: as a tangible demonstration of university and faculty support for Asian law; as an external signal of the concentration and importance of expertise on Asian law; and as an internal means of fostering a future generation of Asian law scholars in Australia.


Just as Australia is known for its strength in Asian studies, so too is it known for its expertise in Asian law. Yet like Asian studies more broadly, the field of Asian law has experienced a rise from the 1980s to the mid 1990s, followed by a fall since the late 1990s. It is arguable that post-2012 in particular has seen both more new hires of Asian law scholars (particularly of Chinese law, but also of Indian law and Indonesian law), and the establishment of three new institutional research initiatives (as listed above).


Law stands out from other disciplines in the social sciences in terms of its sustained and dedicated discipline-based research centres, although these are concentrated at a handful of Australian universities.


The continued importance of trade relations between Australia and the region, and the potential growth in areas such as ASEAN, means that Asian law will remain an ongoing area of interest for universities, the government and the private sector.
In fact, a key reason for the success of Asian Law centres is precisely their attraction to the government and the private sector (particularly law firms) in terms of informing trade relations, foreign investment and the promotion of the rule of law in the region. At the same time, for those of us who research and teach on Asian law, the reality of the close engagement between academia, government and the private sector should be a cause for critical reflection in terms of who we partner with, the projects we prioritise, and where our funding comes from.


Notes


[1] Robert Cribb (2005) ‘Circles of esteem, standard works and euphoric cuplets’ Critical Asian Studies 37(2) 289.

[2] For example, the former ANU Law, Governance and Development Initiative, the ANU Centre for Public and International Law, and the University of Queensland Centre for Public International and Comparative Law.

The impact of Covid-19 on research

Covid-19 is currently disrupting academic publishing in a number of ways. 


There are disruptions to the global supply chain for the manufacture and distribution of printed journals. The following publishers have halted journal printing until further notice:

Cambridge University Press (from 25 March 2020)

Taylor & Francis (from 10 April)


Some journal editors or editing boards have suspended or delayed the review or publication process for academic journals.

 
On the other hand, some publishers are providing open access content for a limited period of time. See the following links from the UNSW library and the ANU library, or select publishers websites such as OUP. The University of California Press has opened free access to all its journals until the end of June 2020


Hart Publishing is currently offering free access for libraries to its online platform, Bloomsbury Collections, until the end of May. To enable access for your institution, email Hart at OnlineSalesUK@bloomsbury.com

The Australian Libraries Copyright Committee has information on the responses of libraries and archives. 

Archival access
National Archives UK open access


New grant schemes
Covid 19 research SSRC grant

If you know of other impacts covid 19 is having on publishers or academic publications ,or have suggestions on ways we should be responding to this as a faculty, please contact the me.