The Baldy Center Podcast

The Baldy Center for Law and Social Policy at the University at Buffalo

Episode #40

Podcast recording date: 3/5/2024

Host-producer: Logan

Speaker: Melissa Crouch

Contact information: BaldyCenter@buffalo.edu

Transcription begins.

Logan:

Hello and welcome to The Baldy Center for Law and Social Policy Podcast. I'm your host Logan. On this week's episode, we are joined by Dr. Melissa Crouch, professor of the Faculty of Law and Justice, University of New South Wales, Sydney, Australia, and current senior research fellow at The Baldy Center. In today's episode, we discuss her recently published paper titled “Judicial Loyalty to the Military in Authoritarian Regimes: How the Courts Are Militarized in Myanmar.” Dr. Crouch also talks about her upcoming presentation, “The Military Turn in Comparative Constitutional Law: Constitutions and the Military in Authoritarian Regimes” happening at The Baldy Center on March 29th. Here is Dr. Melissa Crouch.

Logan:

Hi, thank you so much for joining me today. I really appreciate your time. I'd first like to start off with gaining a bit of a background on you, your academic journey and career, and your research focus.

Melissa:

Hi, thanks for having me. My name is Melissa Crouch. I'm from Australia. I'm based at the Faculty of Law and Justice at the University of New South Wales, which is in Sydney. And there I teach constitutional law, comparative constitutional law, and my research has a focus on Asia. So when I was studying several years ago, I studied Indonesian language, Asian studies, and also law. And then I was briefly in legal practice and then I went back to academia. I did my PhD; I went to Leiden and Singapore and then came back to Australia and continued my academic career there. So most of my work has been on Indonesia, a country that's of particular importance to Australia, but that is a growing middle income economy, a large population, a largest Muslim majority democratic country in the world, and also on Myanmar or Burma. And I should say in the US you refer to it as Burma. In Australia, our government refers to it as Myanmar. It's the same country. So if I switch between the two on this podcast, I'm referring to the same thing.

Logan:

And so you're currently a senior fellow at The Baldy Center through June of this year. Is that correct?

Melissa:

That's right.

Logan:

Tell us a bit more about what you're working on while at Buffalo.

Melissa:

Yeah, it's great to be here. I know the center has a long history and tradition in law and society studies. I'm here on sabbatical and the plan is to finish off a few projects that need to be finished off. My research recently has focused on the role of courts in military regimes and the challenges of studying the military as a constitutional actor. And so I have some papers related to that that I'm trying to finish off. And I've also been doing some long-term research on Myanmar and looking at its constitutional history. And so I'm also finishing off some research related to that.

Logan:

And to dive into your research, you recently published an article titled “Judicial Loyalty to the Military in Authoritarian Regimes: How the Courts are Militarized in Myanmar.”  And the military staged a coup in 2021 in February. So three years and a month since then, could you tell us a bit more about how and why the military took over in Myanmar?

Melissa:

So Myanmar is a country that has a long history of military rule. However, from 2011 to 2021, there was a period of opening, it was a transition to a constitutional system, although one that still favored the military. And it was also an opening to the western world, to foreign and particularly western investment. Unfortunately, in 2021, the military staged a coup and took back control of the country. So it took over on the day that the National League for Democracy, which is Aung San Suu Kyi’s political party, was due to take office for a second term. So for another five years, they had won the election in November 2020. However, the military disputed that election. And so rather than allowing the elected government to take office, they instead staged a coup. They arrested all of the senior leaders of the government at the time, including Aung San Suu Kyi as well as the range of others. And things quickly went from bad to worse.

There was, and still is, a very strong pro-democratic civil society movement that is trying to resist military rule. And that has in places turned violent with significant conflicts across the country, both in areas that have experienced conflict in the past, such as some of the border regions, but also areas including in Central Myanmar that have not historically been sites of conflict, but where people are now very much resisting military rule in a range of ways, both violent and nonviolent. Coming into the paper, so prior to the coup, I had been interested in a particular question and that was, well, how long would it take to demilitarize the judiciary? So the idea being that for many decades the military had taken over control of the administration, but including the judiciary, and that had affected the role and the function of the courts.

But post 2011, there was a sense that at least the new legislature did have democratically elected civilians. Not all of them were civilian, but some of them were. And so the question was really, well, could we see the civilianization of the courts? And if so, how would that take place? Now to sort of give you the context of it, at the time in 2011, the chief justice of the Supreme Court, which was sort of largely seen as the apex of a unitary court system, is a former military officer. And so it was very well known that the courts were kind of subordinate to the military, but there was a judicial sort of tenure system in Myanmar. And so I think it was going to be 2026 or something that he was required to retire. So it seems that maybe over time through a gradual process of new appointments that there could be a change in the judiciary. But that depended on a range of things. In particular, it depended on whether there were enough sort of civilian pro-democratic lawyers who were willing to enter the judiciary at a time when things were still quite uncertain and when the military still had significant control over the courts. And then of course the coup happened and the military in many ways took back the courts by forcing some judges out, but also through the regular appointments process by appointing new people who would be favorable to them.

And so the paper I wrote looked at judicial profiles and tracked the trends and how personnel within the courts had changed over time and how we could begin to think about their degrees of loyalty to the military. So for example, those who had come directly from the military as former military officers being people who were most likely to at least be perceived to be loyal to the military. And then on the other side, those who had never worked for the military and who had been appointed by elected democratic governments such as the NLD being your civilian judges. And then in between having these people who, some of whom were appointed under military rule but had never been employed in the military and others who had worked within the lower courts under military rule, but then were appointed to the higher courts by a civilian government.

Overall, the paper tries to emphasize that the idea of who gets to enter the judiciary and when and how they exit the judiciary is really important. And so while a lot of scholars have focused on judicial profiles in the context of how do courts decide cases, which is of course a really important line of analysis, that kind of overlooks the prior question, which I think is really important in some authoritarian regimes as to who gets to be appointed to the court in the first place because that has a significant influence then on how cases get decided. So that's the paper, and unfortunately it is the case that the military has significant control over the court.

So one of the reasons I wrote the paper is because after the coup, people were asking, well, what are the courts doing? Are they resisting military rule? Can they resist military rule? Can civil society bring cases challenging the legality of the declaration of constitutional emergency by the military? And there were all sorts of questions like that, but by and large, the answer to those questions was no. And the paper tries to get into, I guess the reasons why the courts have not resisted the military coup, the reasons why the courts haven't pushed back in any way, why they haven't accepted any cases, or perhaps even why no lawyers have bothered to go to the courts because they know it would be a futile exercise.

Logan:

And since the release of the paper and moving past that three-year mark of the coup, is there any forms of resistance taking place from individuals in the country? I know you talked about in your paper there was this social resistance happening on Facebook or on social media posting of yellow ribbons and things like this. Are there types of resistance happening within civil society?

Melissa:

Yeah, absolutely. So even though it is not so much in the media these days, in part because there are other big things going on around the world as well, there is still very much a war going on internally within Myanmar. It's obviously not a war between nation states, but it is very much a war and a conflict between the military that claims to be in control and a wide range of civil society groups that are resisting military rule. The civil disobedience movement is sort of the broad civil society umbrella and banner under which people have undertaken a wide range of nonviolent forms of resistance. And that has been very creative, and particularly around the anniversary of the coup, which was back in February, the civil disobedience movement in Myanmar has been incredibly active. In addition, there is a government in exile, effectively. This consists of members of parliament who were elected in the 2020 elections, but who were not permitted to take office as well as others who many of them in exile and able to organize a form of democratic resistance to military rule.

One of the things that they're doing is to lobby at the international level for recognition. So the UN Credentials Committee is responsible for considering who is the legitimate spokesperson for Myanmar. And of course the military at the moment is trying to claim that its person should be the legitimate spokesperson at the UN representative for the country of Burma. And in contrast, the pro-democratic civil society organizations under the banner of the CRPH are arguing that their representative should be the one at the UN as an international forum representing the people of Burma. That is ongoing. So there are those kind of structural formal international level forms of advocacy. And then there are a whole range of other regional advocacy efforts and local advocacy efforts. But there is also violent resistance. And unfortunately because the military has chosen to stage many airstrikes, burnt down villages, this has been happening across Myanmar. And so for many people they feel that there is no other alternative. And so they have organized into what are called PDFs, People's Defense Forces, these sort of come in different shapes and sizes and have a broader joint agenda of resisting military rule and returning the country to civilian rule.

Logan:

And that segues into one of the questions we had for you today, which was what does that international response look like to what's happening in Myanmar? What are governments like the United States or Australia saying or doing in response to the situation?

Melissa:

So I mean, in the region ASEAN is the regional body that includes Myanmar, but ASEAN as an organization has traditionally been fairly conservative and does not interfere in what it seems to be matters of sovereignty of the nation state. And so somewhat predictably ASEAN has not been a strong force for opposing military rule, although the longer that the conflict goes on and the more that there are, for example, issues of both internal displacement but refugee displacement into places like Thailand and Malaysia, the more that will cause problems and concerns in the region. There have been some countries that have begun to issue sanctions again, and they have become increasingly tough and wide as the years have gone on since the coup. That has primarily been led by the US and to a lesser extent, Europe, and countries like Australia do have some sanctions, but not as extensive as the US and European countries. But overall, I think there is a sense of frustration among those in the pro-democratic community from Burma who would like to see more action and I guess more international concern and more recognition that the current military regime is not a legitimate government. It took over from an elected government. It shouldn't be given legitimacy in any forum and that there should be active efforts to delegitimize its rule.

Logan:

And that's an interesting point you brought up. Could you speak more about, if you're able to, the refugees fleeing the country and where they're going. Is there real infrastructure set up for them in these places that you referred to like Thailand or other bordering or nearby countries, or is that kind of not really a structured process for them?

Melissa:

Yeah. So historically, because of the long history and decades of military rule in Burma, Thailand has traditionally been one area where there have been large refugee camps. And that has been since, I don’t know, the 1990s or 2000s. While many pro-democratic activists who have been concerned for their safety have had to flee to the border, and many of them have gone to places like Thailand or other places around the world. We haven't seen large numbers of refugees yet, although I think there is something like 2.6 million who have been displaced internally as a result of whether it's the military targeting their villages, burning them down, air strikes, that sort of thing. So large numbers of internal displacement, and obviously you have just prior to the coup, or several years prior to the coup, there was the large scale exodus of the Rohingya as a result of what many have seen as a genocide. And so those Rohingya refugees still reside in Bangladesh, and at the moment, there is no possibility for them to return.

But the most recent development has been that the military has introduced a conscription law in Myanmar or has plans to enforce the current mechanisms for conscription. That has many people concerned because there are many people who do not want to serve in the military because it would then mean they would be required to support the current military regime. As a result of that, there are many people now trying to flee the country either through formal mechanisms by trying to get their passports up to date and then flee the country or other means. And so that is actually the biggest concern at the moment.

Logan:

And for those who are internally displaced, have they experienced any types of food shortages or are they in need of aid or what does that situation look like for those who are still within the country who are trying to get out or may not be trying to leave but are just internally displaced? What does that kind of look like for them?

Melissa:

Yes. I think the situation is very serious. As a result of the coup, many international organizations or bilateral agencies suspended their aid until they could confirm where it was going or to ensure that it was not going to the military. And so that of course has a range of consequences. And the military who has made it very difficult for international organizations even in providing more basic things like food and humanitarian aid to ensure that it goes to the people, civilians who need it rather than to the military. And so that is definitely an ongoing complicating factor in responding to what is a growing humanitarian crisis in the country.

Logan:

And looking forward, how do you feel or what do you feel the future state of research looks like for the conflict going on in Myanmar and what that will look like for yourself or other scholars within or outside of Burma or Myanmar?

Melissa:

Yeah, so I mean, maybe if I can reflect on the situation for scholars from Burma, unfortunately many of them have had to flee the country. Some of them have been fortunate in getting short-term research jobs or posts at universities around the world or research institutes. But that is an ongoing challenge. And others have tried to obtain education opportunities, whether it's master's degrees, PhDs. For many of them, they're doing really interesting research on some of the consequences of the coup. So things like research on civil servants who have defected from the bureaucracy as a sign of resistance to the coup, the role of women in resistance to military rule, and all sorts of really interesting things. So I think from that perspective, there is some fascinating research going on, even if it is being done under difficult circumstances and as a result of a very horrific sort of political situation. And so I hope that for many of those scholars from Burma that they will lead the next generation of research on the country and what is happening there.

Logan:

Have you ever been able to travel to the country or do you foresee that in a very distant future or in a very near future, do you think that's maybe possible?

Melissa:

So I traveled there a lot up until 2020 and COVID-19. It's not possible anymore in part because the military did arrest foreigners. There was a particular Australian academic who was under arrest for a very long time and was only recently released, not so long ago. And so yeah, it's not possible for people like myself to travel there. I mean, I know there are some other researchers perhaps who come from Asia that are still doing research there, but it is difficult in the sense that many people feel that they're not able to talk about what's going on because there are safety risks and very real concerns for them. So from that perspective, while there has been a lot of research in this period from 2011 to 2021, unfortunately in terms of research within the country since 2021, there is a lot less, at least by foreigners.

Logan:

And you actually have another paper titled “The Military Turn in Comparative Constitutional Law:  Constitutions and the Military in Authoritarian Regimes” for which you're giving a presentation on March 29th at 12:30 PM, with a reception happening at noon, in 509 O'Brian Hall or via Zoom. And for those interested, you may access this paper online using your UB credentials. Could you talk a bit more about this paper, how it may relate to your work involving Myanmar and Burma and provide some insights into this talk?

Melissa:

Yeah. So although the case of Burma may seem extreme, and to some extent it is an example of overt military rule that is relatively rare these days, I think actually when you look around the world, there are a lot of examples of places where the military is quite active in politics and constitutional governance. There have been a number of countries in Africa over the past year or two that have experienced military coups as well. But there are also countries across Latin America and elsewhere where the military has either been invited to support a government that is trying to seek support for its future term in office, or where the government invites the military to be involved in counter-terrorism efforts, anti-drug trafficking efforts or COVID-19 measures, among other issues. And so I think for many scholars who have an interest in politics, particularly in regions like Latin America, but also in some countries in Asia, Thailand, Pakistan, Myanmar obviously, even Indonesia, there are a lot of questions around what role is the military currently playing now, how are they involved in government? To what extent can the military sit in civilian positions and what does it mean for a civilian government when you have either former military officers or active military officers in civilian posts? So, to give one example, during COVID-19, the Minister for Health in Indonesia was a former military person, and they ended up leading the task force that were addressing COVID-19. But it did mean that the military then played quite a big role in that, and that was not unusual. There are many other countries around the world where that was the case. So I think there is a lot of research to be done in thinking about how we understand the military because we don't usually think of the role of the military as a political actor, although there are political scientists who for quite some time have been thinking about this issue.

Logan:

Well, thank you so much for your time today. I greatly appreciate it. As we wrap up our conversation, would you be able to provide us with any final thoughts on your time here at UB, the senior research fellowship, and what this all looks like as your time at the university comes to a close?

Melissa:

So I mean, one of the things that I'm enjoying here so far is getting to know some of the academics here. There's a great group, both of law and society scholars, scholars who work on Buddhism and who've really pioneered that area, like Rebecca French, scholars of comparative constitutional law, and scholars who work on Asia from a range of other disciplinary perspectives such as trade. And so I think it's a great place to be, and I've been talking a lot with them about my research and about their research and learning about what's going on here. And I think also the new Asia Institute that you have here is a great initiative both for students and the opportunities that provides to get them involved and interested, but also to profile the work of academics and to kind of cement its place in the university.

Logan:

Awesome. Well, thank you so much for your time.

Melissa:

Thank you.

Logan:

That was Dr. Melissa Crouch, and this has been The Baldy Center for Law and Social Policy Podcast produced by the University at Buffalo. Let us know what you think by visiting our X, formerly Twitter, @baldycenter, or emailing us at baldycenter@buffalo.edu. To learn more about the center, visit our website buffalo.edu/baldycenter. The theme music for the season was composed by Matias Homar. My name is Logan and on behalf of The Baldy Center, thank you for listening.

Transcription ends.