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.
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.
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 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: Muslim-Buddhist Relations and the Politics of Belongings’ (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). Throughout my teaching and research, I contribute to the socio-legal study of legal traditions and legal pluralism in Southeast Asia. I have taught on ‘Law and Society in Southeast Asia’ at Harvard Law School’s Institute for Global Law and Policy (IGLP); on ‘Constitutionalism and Islam in Indonesia’ at Northwestern Law School; and ‘Law and Religion in Myanmar’ at the University of Victoria, Canada.
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 (see also ‘Democrats, Dictators and Dialogue: Myanmar’s Constitutional Tribunal‘ ICON 2018).
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 (see Oxford Journal of Legal Studies 2018, see also Law, Society and Transition in Myanmar 2014). 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 (see ‘The Everyday Emergency’ 2016 and ‘The Expansion of Emergency Powers’ 2017).
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 (eg see ‘The Judiciary in Myanmar’ and ‘Myanmar’s Courts in an Era of Quasi-Military Rule’ 2017).
Many countries around the world have introduced specialised courts as part of an agenda of law and development. In The Politics of Court Reform: Judicial Change and Legal Culture in Indonesia (CUP 2019), I pay tribute to the work of the late Dan S Lev and his contribution to the politics of the judiciary in Indonesia. This volume reflects upon the remarkable story of judicial innovation and the impact of the creation of a system of specialised courts in Indonesia. My work on the criminal justice system and courts in Indonesia offers the first empirical evidence on patterns in sentencing for the crime of people smuggling and shows that judges sometimes ignore mandatory minimum sentences (‘Trials of People Smugglers’ 2013, ‘The Criminalisation of People Smuggling’ 2013). 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).
Related to 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 (‘Indonesia’s National and Local Ombudsman Reforms‘, 2007). 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 (‘Asian Legal Transplants and Rule of Law Reform’, 2013).
At UNSW, I teach an elective course on The Rule of Law in Southeast Asia; and a course on Indonesian Law and Society. I sit on the Australian Consortium of In-Country Indonesian Studies’ Indonesian Law Advisory Panel, which offers an innovative exchange and internship program for students on Indonesian Law in Jakarta. I oversee a student internship program at UNSW’s Institute for Global Development
Constitutional Change in Authoritarian Regimes
Authoritarian regimes present a particular challenge to the idea of constitutionalism and the value of constitutional endurance. My current project, ‘Constitutional Change in Authoritarian Regimes: The Case of Myanmar’, considers how and why constitutions change in authoritarian regimes. This project involves original empirical and archival research. This book 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 enhance constitutional literacy. I have taught courses on The Principles and Processes of Constitution-Making and The Role of Courts in a Democratic and Federal Transition in Yangon. My research has shown that the absence of robust public participation in constitution-making efforts in Southeast Asia affects the legitimacy of a constitution (see ‘Public Participation in Constitution-Making in Southeast Asia’).