Melissa Crouch’s research while affiliated with UNSW Sydney and other places

While scholars have considered the role of courts in authoritarian regimes generally, less attention has been paid to judicial-military relations. In this article I consider how courts are militarized and made subordinate and loyal to military rule. In military regimes, the courts are at risk of militarization and the process of rendering judges loyal to the military through practices such as career path socialization, selection, and restructuring of the courts. This raises an entry-exit dilemma for judges. The dilemma lies in the fact that if judges committed to civilian rule do not join the bench, they are potentially leaving the judiciary to military partisans with little prospect for reform. Yet joining the judiciary means the danger of being co-opted and adding legitimacy to the military regime or the risk of being forced out if politics shifts from civilian to military rule. Through a case study of judicial profiles in Myanmar, I explore how the loyalty of judges to the military depends on whether they are military insiders, military affiliates, civilian affiliates, or civilian outsiders. The case of Myanmar is a vivid reminder to scholars of judicial behavior that in military authoritarian regimes, judges face an entry-exit dilemma.

Courts can play an important role in addressing issues of inequality, discrimination and gender injustice for women. The feminisation of the judiciary – both in its thin meaning of women's entrance into the profession, as well as its thicker forms of realising gender justice – is a core part of the agenda for gender equality. This volume acknowledges both the diversity of meanings of the feminisation of the judiciary, as well as the complexity of the social and cultural realisation of gender equality. Containing original empirical studies, this book demonstrates the past and present challenges women face to entering the judiciary and progressing their career, as well as when and why they advocate for women's issues while on the bench. From stories of pioneering women to sector-wide institutional studies of the gender composition of the judiciary, this book reflects on the feminisation of the judiciary in the Asia-Pacific.

Courts can play an important role in addressing issues of inequality, discrimination and gender injustice for women. The feminisation of the judiciary – both in its thin meaning of women's entrance into the profession, as well as its thicker forms of realising gender justice – is a core part of the agenda for gender equality. This volume acknowledges both the diversity of meanings of the feminisation of the judiciary, as well as the complexity of the social and cultural realisation of gender equality. Containing original empirical studies, this book demonstrates the past and present challenges women face to entering the judiciary and progressing their career, as well as when and why they advocate for women's issues while on the bench. From stories of pioneering women to sector-wide institutional studies of the gender composition of the judiciary, this book reflects on the feminisation of the judiciary in the Asia-Pacific.

Political transitions from authoritarian rule may lead to a process of court reform. Indeed, court reform has been a central pillar of the law and development movement since the 1960s. What challenges do court reform efforts face after authoritarian rule in Indonesia and to what extent can specialized courts address these challenges? In this article, I examine court reform and the establishment of specialized courts in Indonesia post-1998. I argue that we need to pay attention to the politics of court reform after authoritarian rule. Specialized courts as a type of institutional reform need to be considered together with judicial culture in order to address fundamental challenges in the courts.

Over the past few decades, peace agreements have become a defining feature of political and legal settlements of internal conflict. The relationship between peace processes and constitution-making is complex, and some scholars suggest that it requires a new understanding of constitutionalism. The traditional view of a constitution, as Teitel identifies, presumes that it is a permanent and binding feature of the political future of the country.¹ By extension, this fosters a common view of constitution-making as a one-off, nation-defining event that binds political actors in the future. In contrast to this view, Teitel suggests that a period of political transition brought about by a peace agreement is better understood through the concept of transitional constitutionalism, an idea that holds in tension both the conflict of the past and the future prospects for peace. Transitional constitutionalism is depicted as being flexible and responsive to the constitutional demands of the present in contexts where there is a break with the past.

A constitutional touchstone is a document that articulates alternative constitutional proposals and is a symbolic resource in discussions of constitutional reform. Such documents keep alive opposition constitutional aspirations. Constitutional touchstones enhance understanding of the influence of constitutional history on contemporary efforts at peace and constitutional reform. Through successive constitutional reform processes, constitutional touchstones articulate future visions for reform and emerge as a reference point for political dialogue on peace and constitutional change. Through the case of Myanmar, I consider the influence of constitutional touchstones on contemporary constitution-making and trace demands for federalism through four stages of peace processes in Myanmar. Constitutional touchstones are important considerations that shape the terms of a peace process and condition, though do not determine the limits of constitutional reform. Presenting an alternative view to the idea that constitution-makers and peace negotiators in a globalized age are primarily focused on best practice or the most suitable comparative models, I draw attention to the ongoing salience and social life of past constitutional debates in contemporary peace processes.

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.

Cambridge Core - Comparative Law - From Parchment to Practice - edited by Tom Ginsburg

States often use forms of denial to suppress the pain and suffering of minority groups. In 2015, the international community celebrated the electoral success of the National League for Democracy in Myanmar. Yet through legislative reform, the Rohingya were disenfranchised prior to the election. This is an example of legal denial, that is, the use of law and legal institutions to enact denial. The article traces three uses of legal denial against the Rohingya. One act of legal denial is constitutional reform through the creation of Rakhine State in 1974 and the making of the Rohingya as a minority within Rakhine State. Another act of legal denial is legislative reform through the removal of the right to vote and run for office in 2015. A further means of legal denial occurs through judicial decision-making and the use of political trials related to the conflict in Rakhine State. As the global community struggles with how to respond to the violence, displacement and humanitarian crisis, it is suggested that there is a need to understand the acts of legal denial – constitutional, legislative and judicial – that led to this crisis and how these acts of denial are employed to deny suffering and violence.