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American withdrawal from Paris Agreements: Implications for Southeast Asia

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The impact of US withdrawal from Paris agreement can be seen in Pacific region. It will hamper the efforts of mitigating climate change threats in South East-Asia. The decision of President Trump to withdraw and called this agreement as unjust which is imposing the strict rules and regulations on American workers and the business community.

US decided to back out support from 12 nations Trans-Pacific Partnership (TTP). It was considered as a major setback for protecting environment from further degradation in the region.  He called this agreement as a draconian international deal. According to experts, withdrawal of US from Paris agreements will impact the Asia as they were providing technical assistance to East-Asian countries on climate issues.           

The impact of US withdrawal from Paris agreement      

The decision of US to abandon the Paris agreement will obstruct the regional cooperation in dealing with climate change. It will have disastrous consequences for managing the global warming, environmental degradation and climate change which is considered to be the major threat in the contemporary world. It can increase the role of China being a major power player in the region. According   to the United Nations’ economic and social commission for Asia and the Pacific (UNESCAP), report the Asia Pacific countries were “geographically vulnerable and highly exposed to the damaging impacts of climate change.” The region is facing the threat of rising sea level.

It is difficult for weak countries in the region to deal with climate change in an effective manner. The question is what will people do?  It would force people to migrate to safe places, for example, the new waves of Vietnamese boat people are moving which requires the international support. US played a vital role in countering the threats related to Climate Change particularly in form of Mekong River Commission (MRC) to deal with the impact of environmental degradation on river system of the Pacific region.

The most venerable area is Vietnam’s delta river region and source of rice production for the country is facing a challenge of rising sea levels. It is affecting the rice production and insect infestations. The talks between President Trump and Vietnamese Prime Minister Nguyen Xuan Phuc at the White House, the U.S. said they will continue to work together with Hanoi in addressing the global issues, including environmental concerns. According to the White House, the U.S. “affirmed its assistance to Vietnam in combating climate change via concrete mitigation and adaptation measures”. In views of Analysts, for example, Smith Dharmasaroja, expressed his concerns by saying that U.S. withdrawal affects the technical support on climate change efforts will impact in Pacific region.

According to experts, US technical support on climate change is essential “Pulling out from that agreement with the U.N. is not a good idea because we are in a region that is affected by global warming. Without security – without the help of the United States of America, the global warming in Asia and other countries will be affected a lot because we are looking for the worst floods, worst storms,” According to Smith most of the small countries looked up to the U.S. for its technical expertise and knowledge in climate issues. China cannot fill the gap of US in countering the climate change.  According to the environmental experts, the other countries will have to increase their efforts to decrease the global temperatures to standards set by the Paris agreement.

To conclude, the U.S. withdrawal from the Paris agreement will decrease the fund for the environmental protection and climate science. It will adversely affect the efforts by small countries of East-Asia in countering Climate change as they were heavily dependent on the US to deal with technical issues of environmental degradation. It will hamper the efforts of other stake holders in reducing the temperature to the 2 degree Celsius threshold.

Mehwish Akram holds masters degree in International Relations and currently doing M Phil in Political Science. Her areas of interest are Democracy, Political theory and Environmental politics .

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Southeast Asia

The Gap Between the Judiciary and the Executive in Malaysia

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Authors: Harsh Mahaseth and Samyuktha Banusekar*  

Malaysia’s political reality is that the Executive is headed by a Cabinet of Ministers made up entirely of members of the ruling party, which can muster enough votes in Parliament to change the Constitution and enact any legislation. The logical conclusion is that the Legislature and the Executive assist each other in achieving similar goals and policies. The Judiciary is the weakest governing institution due to the sum total of their Constitutional powers. As a result, it is argued that all legislative and executive actions affecting the judiciary must be treated with caution.[1]

In 2002, there was a case in the High Court to entertain a writ of certiorari to quash the decision of the Sabah State Government which revoked the entry permit of the petition on the grounds of morality. The High Court observed that the ouster clause in Section 59a of the Immigration Act 1959/63 must be interpreted in a manner where the Courts did not have grounds for review of the Sabah Government’s decision. The petitioner appealed to the Court of Appeal, where the writ was granted and ouster clauses were sought as unconstitutional. The Malaysian Federal Court however, on appeal by Sabah authorities, held that Constitutional Rights are not absolute and can be done away with in accordance with statutory law and the Section is conclusive on exclusion of judicial review.[2] This portrays a clear deviation from separation of power and abuse of power by the Executive. There exists a vagueness in the doctrine of separation of powers in itself in Malaysia and the doctrine is understood to have diminished as the role of the Executive has significantly grown.[3]

If Malaysian courts retain a judicial attitude of not interfering with the Executive’s power of detention under the ISA while laying down contradictory rules to obey in such cases, the courts would be vulnerable to criticism and public distrust. If this is the case, questions will be raised about whether the courts are doing their job in protecting fundamental liberties, especially when it comes to personal liberty, in preventive detention cases.

The Malaysian Parliament amended Article 121(1) of the Federal Constitution (“Constitution”) in 1988 to remove a clause that specifically vested “the judicial power of the Federation” in the country’s High Courts and lower courts. As a result, Article 121(1) now simply states that such courts “have such authority and powers as may be conferred by or under federal statute.” The amendment sparked a lot of controversy. There were some reservations about its precise effect. “So where does judicial power now lie?”—”Some critics feared that the courts will have full judicial power”—”So where does judicial power now lie? “No one is certain.” A report by the International Commission of Jurists, on the other hand, presumed that “judicial control” remained with the courts, but expressed concern that: Section 121 wording renders the High Court’s authority and powers reliant on federal statute, implying that the court lacks legally enshrined original jurisdiction. This compromises the separation of powers and creates a subtle form of control over judicial decision-making. This makes the High Court’s activity reliant on the legislature and jeopardizes the judiciary’s institutional independence.[4]

The Amendment to Article 121(1) has created the perception that the Executive wishes the silence the Judiciary in Malaysia and this has led to many judges accepting that they are not even an independent pillar of the Constitution.[5] Only the establishment of proper separation of powers in Malaysia would ensure clarity in the legal system of Malaysia, including Immigration law and rights of refugees in Malaysia.

*Samyuktha Banusekar is a fourth year law student pursuing B.Com. LL.B. (Hons.) at School of Law, SASTRA Deemed University, India.


[1] Yeong Sien SEU, “Clarity or Controversy- The Meaning of Judicial Independence in Singapore and Malaysia” (1992) 13 Singapore Law Review at 87.

[2] Case of reinstatement of entry permit to Sabah (Pihak Berkuasa Negeri Sabah v. Sugumar Balakrishnan), Decision of 2009, (2002) 3 MLJ 72; Mohideen Abdul KADER, “Access to Justice by Mohideen Abdul Kader” Bar Council of Malaysia (24 November 2005), online: Bar Council of Malaysia <https://www.malaysianbar.org.my/article/news/legal-and-general-news/legal-news/access-to-justice-by-mohideen-abdul-kader>. 

[3] H.P. LEE,The Malaysian Constitution after 50 years: Retrospective, Prospective and Comparative Perspectives” (2007) 9 (2) Monash University Faculty of Law Legal Studies Research Paper Series at 307-320; Mahaletchumi BALAKRISHNAN, “The Judiciary and the Lost Doctrine of Separation of Powers” Bar Council of Malaysia (12 January 2010), online: Bar Council of Malaysia <https://www.malaysianbar.org.my/article/about-us/committees/constitutional-law-committee/the-judiciary-and-the-lost-doctrine-of-separation-of-powers>.

[4] Richard S.K. FOO, “Malaysia- Death of a Separate Constitutional Judicial Power” (2010) Singapore Journal of Legal Studies at 227-228.

[5] Dr. Shad Saleem FARUQI, “Restoring Judicial Power” The Star (16 April 2008), online: The Star <https://www.thestar.com.my/opinion/columnists/reflecting-on-the-law/2008/04/16/restoring-judicial-power>. 

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Southeast Asia

G20 Indonesia: Steps Towards Sustainable Environmental Sustainability

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Currently, Indonesia is still struggling to improve, ensure, and protect the environment. There are several environmental problems that are still Indonesia’s homework, namely Pollution of the air, soil, water that has not been completed. Then the denuded forests because they are often cut down for land clearing and excessive use of wood have resulted in the problem of forest and land fires, which are still at a stalemate. In fact, the forest is a reservoir of germplasm and water for life. Deforestation also causes floods and landslides during the rainy season every year. Indonesia’s environmental issues that have not been resolved until now are the extinction of flora and fauna due to imbalance in the ecosystem and also illegal hunting of animals. River pollution and abrasion are also still environmental problems every year. The sea which is starting to be filled with garbage also threatens marine life which then has a bad impact on energy and protein sources as well as people’s livelihoods, not to mention the problem of clean water scarcity that some Indonesians experience every year. Although Indonesia has pocketed these environmental problems, they have not yet reached the stage of extinction and cannot be handled. Indonesia also has a biodiversity that has large biological resources, so it has a higher responsibility in protecting the environment.

In addition, Indonesia also has ambitions to achieve the SDGs, especially in environmental safety and sustainability programs. Therefore, it takes great effort and good support and cooperation for this achievement.

Closer to G-20 Indonesia 2022

This year is important year for Indonesia, in addition to being the right time for health and economic recovery which is expected to continue, Indonesia will also become the holder of the G-20 Presidency, with the theme Recover Together, Recover Stronger. Indonesia wants the whole world to achieve a stronger and sustainable recovery together. The G-20 is a great opportunity for Indonesia in pushing strategic agendas that will have a positive impact on national and global interests. The G-20, starting from December 1, 2021, will end on November 30, 2022, and will be attended by both developing and developed countries. In essence, the G20 is a multilateral cooperation forum consisting of 19 main countries and one economic area, namely the European Union (EU). The G-20 represents more than 60% of the world’s population, 75% of global trade, and 80% of the world’s gross domestic product (GDP). Since its formation in 1999, the G-20 has resolved several economic problems, one of which was the 2008 financial crisis that caused the world’s giants to collapse. The G-20 consists of two tracks, namely the financial track and the Sherpa track. The types of G20 meetings have 3 types of meetings, namely Summits which are meetings at the regional head level, then Ministerial and Deputies Meetings, namely meetings held in each of the main focus areas of the forum. The last one is the Working Group, which is an association of expert members from G 20 countries who deal with specific issues related to the broader G20 agenda, which is then included in the ministerial segment and finally at a high-level conference, in other words to reach a conference. High level requires careful planning. The G20 Presidency of Indonesia has 4 pillars, they are:

Strengthening the partnership environment

Drive productivity

Increase resilience and stability

Ensuring sustainable and inclusive growth

 Stronger global collective leadership

Environmental Issues in Indonesia’s G-20

Environmental issues are part of the Sherpa track agenda. The Sherpa track is a G-20 track that discusses non-financial economic issues, namely all issues related to energy, development, tourism, digital economy, education, labor, agriculture, trade, health, anti-corruption, environment and climate change. The environmental and climate sustainability working group aims to pursue new, inclusive and resilient models for accelerating the transition to energy, green economy and environmental sustainability. Climate change adaptation, resilience and nature-based solutions aim to combine emission reduction and adaptation, combat biodiversity loss, improve air quality and increase energy efficiency. Indonesia’s G-20 presidency cannot be separated from the continuation of the presidency of the previous years. The Communique, which is the final result of the G20 presidency, is in the form of a statement and cooperation document from G20 members that contains a commitment and a joint statement which will then be submitted to the public. During the Saudi Arabian presidency, the G20 communiqué contained the control of land degradation and damage to coral reef habitat and marine debris as well as the control of covid 19. This was marked by the global initiative on Reducing Land Degradation and Enhancing conservation of forestry Habitats and the launch of the global Coral Reef Research and Development Acceleration Platforms.

At the Italian presidency in 2021, the G-20 members agreed to do 4 things, namely 1. Strengthening actions to contain and control habitat destruction 2. Strengthening the commitment to achieve land degradation reduction and strive to achieve land degradation neutrality 3. Strengthening action for conservation, protection and restoration, and sustainable use of biological diversity. 4. Strengthening the commitment to end illegal unreported and unregulated fishing. As well as handling marine debris, including strengthening existing instruments and developing global instruments related to marine debris and plastic waste in the sea. As for the Indonesian presidency, there are three main issues of the Environment and Climate change that are priorities. This commitment is expected to help control the global temperature increase of 1.5 degrees Celsius according to the target in the Paris agreement. The three priority issues are: First, support sustainable recovery Second, increased land and sea-based actions Third, increasing the effectiveness of the use of resources implemented for environmental protection and climate change control purposes. These three issues were brought up as an effort to restore the environment after the pandemic. In addition to the priority issues above, the G-20 also supports the post 2020 global biodiversity framework, ecosystem restoration that focuses on reducing land degradation and increasing sustainable conservation and restoration of terrestrial habitats, specifically peatlands, mangroves and other ecosystems. In addition, the G-20 also supports global commitments to water resource management including sustainable lake management, watershed management and encouraging water resource efficiency to achieve water security in support of SDGs 6 Not only that, the G-20 also seeks to create sustainable and innovative funding to support the restoration of unique ecosystems and marine ecosystems, also strengthen marine debris action plans and further actions in the protection of coastal and marine ecosystems based on land and oceans with a focus on participation community.

In the Plenary G-20 Environment Deputies Meeting and Climate Sustainability Working Group (1st EDM-CSWG) which ended on March 23, 2022, 7 priority issues were discussed, namely land degradation, biodiversity loss, marine litter, water, sustainable consumption and resources efficiency. , sustainable finance and marine protection. Six issues have been resolved by seeking input from G-20 EDM member countries, while the issue of sustainable consumption and resource efficiency will be implemented in June 2022 at the second meeting.

Why Choose the Issues above? The choice of environmental issues in the G20 is not without clear reasons. The issues raised have been carefully thought out and estimated in accordance with global and local interests. As a country with high biodiversity, Indonesia has a high influence in voicing the use of biological resources that is sustainable, conservative, and with fair profit sharing. The selection of the issues that have been mentioned are also very popular issues in the environmental management arena in other international forums, biodiversity, ecosystem restoration, marine debris management and coastal ecosystem protection, mangrove and mangrove forest conservation, management and conservation of clean water. the essence of today’s global environmental problems that cannot be postponed any longer. G-20 presidency this time is a signal for sustainable environmental protection. If it can be implemented properly, there will be many benefits that will be felt, both material and non-material. This will speed up the recovery of the post-pandemic environment, creating a healthier and cleaner environment with good water resistance.

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The Use of The ASEAN Way In Resolving Disputes

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Authors: Harsh Mahaseth and Aadya Narain* 

The Association of Southeast Asian Nations (ASEAN) has a unique method of diplomacy known as the ASEAN Way, based on four principles: non-interference, quiet diplomacy, non-use of force, and decision making through consensus.=The principle of non-interference, considered the most important, necessitates that member countries do not interfere with internal issues. Introduced by Director Termsak, this policy was intended to emphasise that ASEAN is based on voluntary membership, it’s a non-political organisation, and every country is required to preserve its identity and national government. This is concurrent with quiet diplomacy, intended for bilateral tensions. It ensures that members avoid embarrassment by allowing ASEAN leaders to communicate without bringing the discussions into the public view. Many scholars argue that the regional grouping successfully tackled various intra-regional impediments to Southeast Asia’s political stability and regional security. The ASEAN Way is considered reflective of the broader principle of “Asian solutions to Asian problems”, which aims to avoid Western influence in intra-Asian conflicts.

THE USE OF THE ASEAN WAY: HISTORICAL CIRCUMSTANCES

Following the military junta’s coup and subsequent takeover in Burma, 1988, ASEAN adopted constructive engagement and an open-door policy,  as opposed to the United States’ public isolation tactic. The approach had positive long-term consequences, introducing gradual changes in Burma’s leadership towards human rights and democracy. However, the critique posited by western countries and human rights organisations pointed out that ASEAN had granted legitimacy to the military government, with scholars noting that by 1966 the human rights situation was abysmal, the year being judged to be the worst for state abuse.

Cambodia witnessed a violent change of government led by the Prime Minister Hun Sen, ending the coalition administered by the United Nations elections in 1993. Cambodia was not a member of ASEAN, and plans were underway to include it. However, the ASEAN Way was highly unsuccessful, as the organisation was ill-equipped to engage constructively with a non-member country. Moreover, the ASEAN Way’s emphasis on non-military engagement further deteriorated the region’s stability when Vietnam invaded Cambodia.

The ASEAN Way proved to be effective in dealing with Indonesia’s Haze Crisis. In 1997 and 1998, approximately 45, 000 km2 of forest and land burnt on the island of Sumatra and Kalimantan in Indonesia. It resulted in severe pollution of neighbouring member countries causing chronic respiratory diseases such as asthma, bronchitis, impaired visibility, and upper respiratory tract infections. However, it affected Indonesia more severely due to the lack of an integrated air quality monitory network. Despite these repercussions, in 2019, Indonesia became the only country to have built coal energy infrastructure, despite a global move towards avoiding it as a massive source of pollution. During the Haze Crisis, the member countries faced challenges with the principle of non-interference. Simon Tay writes that the ASEAN Way’s principle of non-interference in this crisis is wrongly applied as “the fires have implications for regional and inter-regional politics.” He argues that the state bears responsibility for transboundary harm if the pollution escapes its territory to cause harm to other states including Singapore, Malaysia, parts of Thailand, Brunei, and south of Philippines. Indonesia was the last ASEAN member country to ratify the Transboundary Agreement despite haze pollution reaching alarming levels. However, commentators found that the Agreement has been drafted non-intrusively to accommodate the principle of non-intervention. This is also indicated that no provision exists for reparation to the member country on whose territory the haze pollution escapes. This contravenes the harm principle of the Stockholm Declaration. According to Greenpeace Forest areas greater than the size of Netherlands have been burnt in Indonesia in last five years. Burning of forest and peatland for growing oil palm and pulpwood is illegal in Indonesia under the Forestry Law 41/1999. However, domestic laws do not address transboundary pollution. Singapore’s national legislation, the Transboundary Air Pollution Act 2014, defines haze pollution in Singapore as the pollution of the environment comprising any poor air quality episode involving some from any land or forest fire wholly outside Singapore. Section 5 makes it an offence to engage in conduct which causes or contributes to any haze pollution in Singapore or condones such conduct by other entity or individual. The Act also places civil liability on the breach of the duty which may lead to actionable suit by a person in Singapore who has sustained personal injury, contracts any disease, sustains mental or physical incapacity, or dies due to these three issues as per Section 6(3). The defence from such criminal or civil liability is either grave natural disaster or an act of war under Section 7(1). This national legislation differs from the traditional approach of the ASEAN member countries that have passed laws that do not contradict the principles of ASEAN Way.

Why the use of International Law in tackling the harm caused due to Transboundary Haze Pollution goes against the ASEAN Way?

Transboundary pollution causes climate change, depletion in the ozone layer, loss of flora and fauna, and severe and irreversible damage to health. Thus, responsibility in transboundary harm acquires the status of customary international law. Scholars have noted that the most problematic issue in using the international environmental law framework on transboundary pollution is that the international law requires the state be responsible for causing such environmental degradation and compensate accordingly. This strongly contradicts the principle of non-interference which predominantly respects the sovereignty of member countries in ASEAN. Further, these issues can also be tackled by entering into Multilateral Environmental Agreements such as the Framework Convention on Climate Change, Kyoto Protocol, Convention on Biodiversity etc. These are against international frameworks which will be regulated through an international platform where the discussion on contentious issues will be discussed. However, this would not be suitable to the framework established through the ASEAN Way where member countries try to avoid issues that may cause imbalance in the regional resilience.

Relevance of ASEAN Way in the present context and its disadvantage

The ASEAN Way is considered time consuming and unhelpful in determining concrete goals in terms of economic integration. The exercise of consensus and cooperation that takes place within the ASEAN Way is of the lowest denominator. Most disagreements remain unstated. Further, member countries may conceptualise ASEAN Way principles differently which hampers collective action.

Since member countries strictly follow the principle of non-interference, none of the ASEAN members have spoken against the military coup in Myanmar on the 1st of February 2021. None of them have published a statement condemning the arrest of the State Counsellor and leader of the National League for Democracy Aung San Suu Kyi.

*Aadya Narain is a Research Assistant at the Nehginpao Kipgen Center for Southeast Asian Studies, and a law student at Jindal Global Law School, O.P. Jindal Global University, India. 

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