The recently concluded India-ASEAN Foreign Minister’s Dialogue (also known as the ‘Delhi Dialogue’) celebrated thirty years of the India-ASEAN relationship. The current year, designated as the ASEAN-India Friendship Year, highlights the significance of strengthening the partnership in an increasingly dynamic regional and geopolitical landscape. For India, ASEAN stands at the core of its vision for the Indo-Pacific,  as well as for its Act East Policy. For the ASEAN, India presents the solution for solidifying strategic autonomy as the great power competition between the US and China unfolds in the region.

It is argued that the great power competition is now about ‘technology’. According to this view, power transition theories emphasize the ‘innovation imperative’, and technological progress determines the viability for the ‘continuous rise’ of the rising powers. For India and ASEAN, capability and capacity building in this domain is now paramount to securing national interests.  

At the Delhi Dialogue, the Foreign Minister of Singapore remarked that the digital revolution is creating a complete revamp of the means of production and wealth generation for the future. He stressed that “if ASEAN can complement India’s natural leader in the arena, the two can remake not just the next two decades, but at least the next half-century”.

In the cyber domain, India and ASEAN face common challenges and vulnerabilities. While digital infrastructure in Southeast Asia (SEA) has been regularly exploited as launchpads for cyber-attacks worldwide, India has been at the top of the list of victims.

India-ASEAN in the cyber domain

Indian and ASEAN strategies in the cyber domain converge to a great extent. In discussions related to cyberspace governance in the United Nations (UN), both have adopted a balanced approach. Like India, the ASEAN countries want to safeguard cyber sovereignty (the view led by China and Russia), while supporting the multi-stakeholder approach (the view led by the US and Europe). It has been argued that ASEAN countries’ policies are focused more on avoiding social disruptions and controlling the spread of disinformation, than on technology issues. While the latter remains important, the former aspect has gained increasing significance for New Delhi in recent years.

Unlike the US and some of the Western allies, ASEAN countries have so far refrained from using cyber attribution as a political tool. This is similar to India’s policy which has not yet adopted the ‘naming and shaming’ approach towards its cyber adversaries, despite a few instances of indirect inferences by officials and leaders.

A major challenge for India and ASEAN has been China’s exploitation of cyberspace. Over the years, China-based threat actors have wreaked havoc in cyberspace, with motives ranging from commercial espionage to political espionage. An exponential increase in China-linked cyberattacks is witnessed in India and SEA countries whenever disagreements and conflict arise on borders (e.g., the Galwan valley clashes) or in the maritime domain (e.g., the South China Sea dispute).

India-SEA cyber relationship has broadened and deepened over the past decade, both on bilateral and ASEAN levels. India has been part of deliberations on cybercrime, Information and Communications Technology (ICT) security, and emerging technologies at the ASEAN Digital Minister’s Meeting and the ASEAN Defence Minister’s Meeting.

Bilaterally, India-Singapore relations have significantly improved, with the Indian Prime Minister hailing the ‘warmest and closest’ relationship between the two lions (countries). Singapore is among the most active SEA countries in cybersecurity discussions at the UN. It participates in both the UN Group of Governmental Experts (UNGGE) and the Open-Ended Working Group (OEWG) on ‘Developments in the Field of Information and Telecommunications in the context of international security’.

India-Malaysia relations have also improved since the new leadership took reign in 2021. In April 2022, the two countries reviewed the entire gamut of bilateral relations and agreed on a faster revival of ties in the post-covid period. Malaysia is deemed ‘neither a technology powerhouse nor a prolific hacker’. However, Malaysia has worked towards developing a strong national cyber strategy and uses global cooperation mechanisms for enhancing its capabilities in fields like foreign intelligence gathering.

As a natural leader in SEA, Indonesia has championed the ASEAN Outlook on the Indo-Pacific (AOIP). Though Indonesia lacks a comprehensive national cybersecurity strategy, Indonesia’s leadership in the ASEAN framework remains important for developing frameworks for collective cyber resilience. For India, these present excellent case studies for developing an active cyber diplomacy approach and fostering global cooperation mechanisms in the cyber domain.

Way Ahead

ASEAN provides the SEA countries with an avenue for advancing strategic autonomy in an increasingly competitive Indo-Pacific. The ASEAN centrality in the region is respected by the West which now seeks to engage the ASEAN countries diplomatically, economically, and politically.  ASEAN centrality has also meant that Chinese aggressiveness has driven other regional middle powers like India, Australia, and Japan towards ASEAN, thus elevating its stature further. However, in recent decades, China has made significant inroads in the SEA markets and is now seen as an important political partner as well. Despite concerns over increasing Chinese imprints on SEA’s digital domain, Chinese technological capabilities and policies attract several SEA countries.

The US-China rivalry puts India and SEA at risk in cyberspace as the rivalry will percolate towards allies and partners. In this light, the need is for developing a third way in the cyber domain – a Cyber Non-Aligned Movement (NAM). India-ASEAN engagement can address the technological gaps and cybersecurity issues, without being drawn into the rising great power competition in the region. The partnership can encompass digital infrastructure, 5G technology, cyberspace governance, and the       construction of a new South-South paradigm in cyberspace.

As fears of a ‘Digital Cold War’ emerge in the Indo-Pacific, a Cyber NAM can be a significant diplomatic effort towards a peaceful and secure cyberspace.

(Views are personal)

Right from the time of Ho Chi Minh, Vietnam has adopted a liberal socialist welfare state emulating the erstwhile USSR. Within the historical narrative related to Indochina region the atrocities committed by Khmer Rouge has been listed as one of the darkest periods of history in Cambodia. Khmer Rouge after coming to power were suspicious of Vietnamese intentions and has developed an antagonistic attitude towards Vietnam. There have been skirmishes between the armed forces of the two countries and Khmer Rouge was strongly supported by China at that time. The establishment of People’s Republic of Kampuchea after the defeat of Pol Pot which was a replacement for the authoritarian Pol Pot regime. Led to the re institution of the state institutions and the protection of the religion and trade. The support which was given to the other opposition parties by the US which have fled Cambodia and shortage refuge in Thailand. 

The government instituted by Vietnam and the government in exile with Norodom Sihanouk as president and his deputy as Prime Minister, were seen as the two power centres. Vietnam has supported the re-establishment and restoration of public life in Cambodia in the late 1980s because of economic hardships and strong economic boycott adopted by the United States has led to more hardships to the Cambodian citizens. As a result of which Vietnam has justified its intervention in Cambodia to protect the citizens and the hardships brought about by Pol pot regime. Subsequently Vietnam withdraw its forces from Cambodia in 1989. In terms of protection of religion particularly Buddhism and restoration of monasteries large number of Vietnamese have helped Cambodians to adhere to the religion. However, withdrawal of Vietnamese forces led to a power struggle between different factions of Cambodia. 

Following the negotiations in 1991 there was a agreement between different fractions which led to the formation of the coalition government under supreme National Council which was headed by Norodom Sihanouk and brought about representatives of the three factions representing different political orientations and royal representatives.  The effective control of Cambodia was in the hand of the Phnom Penh regime and the conclusion of a peace agreement in 1991 led to first establishment of peace and protection of human rights across Cambodia. 

The disarming of Cameroon was a major issue for the UN operations particularly UN Security Council and therefore it was thought that is structured de-weaponization of the rival factions should be done. Under the UNSC and its mandate way back in 1992-93 the national elections were held in July 1993. These were seen as one of the most free and fair elections across Cambodia. The election of FUNCINPEC led to the return of Prince Norodom Sihanouk to the seat of power. The Khmer Rouge resistance was eroded because of the lack in foreign funding and subsequently thousands of supporters defected to the government and joined Cambodian army. Vietnam has been instrumental in looking into the safe transition and exchange of power between different factions. 

While much of the history has been documented but the Vietnamese army sacrifices to free Cambodians from brutal Khmer Rouge regime was not celebrated in the way it should have been. It was seen that more than 30,000 Vietnamese troops were killed before final withdrawal in September 1989. The Vietnamese soldiers underwent serious hardships and were supported by the Cambodians who were helping them in a limited way.  

Vietnam’s sending of troops to Cambodia in late 1978 was primarily to protect the millions of Cambodians who have fled the urban centres to rural locations because more than 202 million people have died and executed by the Khmer Rouge regime. The Vietnamese army despite limited rations and supplies have tried to protect the population and because of the Vietnamese attack the Pol Pot fled from Cambodia. Immediately after driving US from Saigon, the engagement of Vietnam in Cambodia was seen as the draining of Vietnamese resources as many of the refugees had started trickling into Vietnamese borders. While Vietnam has fought against French and the Americans their role in Cambodia has been underplayed and many of the Vietnamese soldiers who returned from Cambodia felt that they were not given due recognition by new Cambodian government. 

Even Cambodia has been ignorant of the fact that Vietnam was the one country which rescued them from the hardships of regime. In fact, the friendship monument in Phnom Penh clearly reflects the Vietnam’s role in driving Pol pot away. It was also a redemption of Vietnam’s glory and history which showcased that Vietnam could play a significant role in the Indochinese history. If one investigates the four years that they had ruled Cambodia, the brutal regime was responsible for forcing millions of people to work in community farms, but this forced social engineering was detrimental to the society and economy of Cambodia. The bloodshed also had aftereffects because many families died from exhaustion, disease, and starvation. 

One of the important aspects of Pol pot regime was the support from the hill tribes and they are known respect for Buddhism as a religion. Pol pot was instrumental in isolating people and abolished money, religion, and private properties. In the history of Cambodia Khmer Rouge regime, the South 21 jail in the capital was seen as notorious because more than 17,000 men, women and children were detained in that centre during the rule of the regime. The full horrors of the regime were discovered when the documented stories and oral history narrated by people in their diaries and verbal communication highlighted the deplorable conditions of living and the killing fields which brought Cambodia to the verge of complete economic downturn and retreating the country to the primitive age. 

The UN established tribunal decided and brought Khmer Rouge leaders to justice. In November 2018 the UN administered tribunal give sentences to Pol pot brother Khieu Samphan for crimes against humanity and genocide. The Pol pot regime also conducted ethnic genocide against Cham  and Vietnamese minorities. In fact, the role that Vietnam has placed in computing history needs to be revisited and loaded for its efforts in protecting the Cambodians as well as other ethnic minorities. 

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>.