My research is concerned with the struggle for constitutionalism, and related questions about the law and politics of constitutions, courts and religion in Asia. My scholarship contributes to the fields of comparative constitutional law; law and society, and law and religion.
Constitutional Change in Authoritarian Regimes
Authoritarian regimes present a particular challenge to the idea of constitutionalism and the value of constitutional endurance. I currently hold an Australian Research Council Discovery Grant to focus on ‘Constitutional Endurance in Authoritarian Regimes: The Case of Myanmar’. This study builds on two of my previous major research projects: my doctoral research on constitutionalism, courts and religion in Indonesia; and my postdoctoral research on constitutionalism in Myanmar and Southeast Asia more broadly.
My project considers how and why constitutions change in authoritarian regimes. This project builds on my earlier ethnographic and qualitative approach by exploring the lived archives of constitutional law through field work in Myanmar. The book project seeks to explain how legacies of constitutional rule in Myanmar shape the present understandings of the 2008 Constitution and the possibilities for reform. In doing so, I contribute to comparative constitutional scholarship on constitutional change and endurance in authoritarian regimes. In Law & Society Review, I explore the idea of pre-emptive constitution-making as an aspect of authoritarian constitutionalism. My work seeks to understand the struggle for constitutionalism in post-conflict, transitional regimes and in a special journal issue I explore the history of peace processes and constitution-making in Myanmar (ICON 2020).
Constitutionalism, Religion and the Courts in Southeast Asia
Southeast Asia is home to many legal traditions and has a long history of legal pluralism. Religion is central to past and present legal and constitutional debates in Southeast Asia. My research is concerned with understanding the complex intersection between law and religion in Southeast Asia. My doctoral research culminated in the book ‘Law and Religion in Indonesia’ (2014) which identifies the trend in the judicialisation of religion in Indonesia since 1998. The book illustrates how democracy and decentralisation prompted a turn to law to resolve, or create, disputes between religious communities. The book offers ethnographic case studies of disputes between Muslims and Christians that have arisen over the criminalisation of blasphemy, the regulation of places of worship, and the issue of conversion in West Java. My research on Islamic courts and fatwa (Islamic legal opinions) in Southeast Asia, particularly Indonesia, Myanmar, Malaysia and Singapore maps the distinct structural arrangements between the state and religious authorities, and how this affects minority groups (see ‘Islamic Law and Society in Southeast Asia’, 2016). My collaborative work offers new empirical and comparative perspectives on Muslim communities in Myanmar, as exemplified in the edited volume, ‘Islam and the State in Myanmar (OUP 2016). My work on Burmese Buddhist Law in Myanmar considers the importance of viewing contemporary debates on women’s rights in the context of historical developments in Burmese Buddhist law (see ‘Polygyny and the Power of Revenge’, 2016).
Constitutionalism and the Courts in Southeast Asia
The practice of constitution-making and the role of courts in upholding constitutionalism in Southeast Asia varies and has shifted over time. My book on The Constitution of Myanmar: A Contextual Analysis (Hart Publishing, 2019) offers the first analysis of how the 2008 Constitution is understood and operates in Myanmar. While much of the field of comparative constitutional law focuses on courts, I demonstrate that it is the legislature, rather than the Constitutional Tribunal, that is the primary forum for discussion and debate on the Constitution in Myanmar.
My work takes a socio-legal approach to the study of courts and constitutionalism, and challenges conventional approaches to comparative constitutional law. Although it is common to trace the emergence of rights jurisprudence to the establishment of constitutional courts around the world since the 1980s, my research instead suggests that the constitutional writs deserve a place in global histories of constitutional review as an avenue of rights protection in postcolonial settings from Myanmar to India and beyond. Another example is my work on emergency powers, which are often considered to be the ‘exception’ to constitutional rule. My work on emergency powers in Southeast Asia shows how emergency rule has come to form part of the everyday in Myanmar and in Indonesia is a potential opportunity for the military to enhance its power.
Efforts at law reform often focus on strengthening the courts and enhancing constitutionalism. The Business of Transition: Law Reform, Development and Economics in Myanmar‘ (CUP 2017) is an invitation to think critically about the intersection between law, development and economics in times of political transition. I have published on the role of the courts and the need to reconsider our understanding of judicial independence in countries emerging from authoritarian rule, such as Indonesia and Myanmar.
This law and governance agenda has seen the introduction of specialised courts in many countries around the world. In The Politics of Court Reform: Judicial Change and Legal Culture in Indonesia (CUP 2019), I reflect on the work of the late Dan S Lev and his contribution to the politics of the judiciary in Indonesia. This volume examines the remarkable story of judicial innovation and the impact of the creation of a system of specialised courts in Indonesia. In a special journal issue, we reflect on the seminal contribution of the Constitutional Court to democratic reform in Indonesia (‘The First Decade of Indonesia’s Constitutional Court’ 2016). My research also demonstrates the contribution of cause lawyers to the process of democratic reform in Indonesia, despite the absence of a united bar association (‘Cause Lawyers in Indonesia’, 2013).
In Women and the Judiciary in the Asia-Pacific (2021), I reflect on the role of the judiciary in efforts to overcome and address issues of inequality, discrimination and gender injustice for women. The feminisation of the judiciary – both in its simple meaning of entrance into the profession as well as its more substantive forms of realising gender justice – is a core part of the gender equality agenda. Acknowledging both the diversity of meanings of the feminisation of the judiciary as well as the complexity of its social and cultural realisation, this volume enhances the literature on women and the courts from the perspective of the Asia-Pacific. Containing the first-ever empirical studies for many of the jurisdictions covered, this collaborative book offers deeply grounded research of the past and present challenges women face to entering the judiciary and progressing their career, as well as advocating for women’s issues. From individual stories of trailblazing women to sector-wide studies of changes in gender composition of the judiciary over time, the original empirical research in this book offers a timely reflection on the feminisation of the judiciary in the Global South more broadly.
Related to the idea of constitutionalism, my research has also been concerned with notions of accountability, corruption and non-judicial institutions. My interest in accountability agencies began in 2004 with an internship at the local Ombudsman in Yogyakarta, Indonesia. My work explores the development of administrative law mechanisms in Southeast Asia, illuminating the importance of administrative accountability to democratic reform. This includes freedom of information reforms, human rights commissions, ombudsman, anti-corruption commissions and administrative courts.
Melissa Crouch 