Unlawful Surveillance in Southeast Asia, Pegasus Case

Gema Gita Persada and Ni Putu Candra Dewi talk about unlawful surveillance in Southeast Asia, what can we do about it, and of course, what can the listeners do to help this process.

INTRO

Welcome to New Naratif’s Southeast Asia Dispatches. I’m your host, Bonnibel Rambatan, Editorial Manager for New Naratif. New Naratif is a movement to democratise democracy in Southeast Asia, and this podcast is one of the ways we attempt to do just that.

You are now listening to a special edition of the podcast, the fourth of six episodes in the Pegasus series that we are co-producing together with KBR. Three episodes will be conducted in English, while three in Bahasa Indonesia, which you can find at Ruang Publik at KBR Prime dot ID.

In 2022, iLaw, Digital Reach, and The Citizen Lab discovered a large-scale espionage campaign targeting pro-democracy demonstrators and activists calling for monarchy reform in Thailand. At least 30 people were infected with NSO Group’s Pegasus spyware. In November 2022, a civil lawsuit was filed against Israeli spyware firm NSO Group, alleging that mobile phones violated the rights, including the privacy, of eight people infected with Pegasus.

In June 2023, several countries in the Asia-Pacific region decided to hold a conference to discuss digital rights in Chiang Mai, Thailand. Human rights advocates are calling for the Internet to be regulated as a public good — fearing the harsh reality of  reckless use of technologies that may not be human-centred.

At a time when the use of spyware is becoming increasingly normalised and the lines between counterterrorism efforts and surveillance technologies are increasingly blurred, it is important to secure human rights before national security through collective action on rights-based approaches to counter-terrorism.

SPEAKER INTRODUCTION

Hello, everyone. My name is Ni Putu Candra Dewi, and I go by Candra. Currently, I serve as a human rights advocacy and campaign associate for Manushya Foundation and a regional feminist intersectional human rights organisation that’s based in Bangkok, Thailand.

That is Ni Putu Candra Dewi, a licensed Indonesian lawyer and social scientist by training, beyond that she is a storyteller. She is Human Rights Advocacy and Campaign Associate for Democracy and Digital Rights for Manushya Foundation, an Asia regional intersectional feminist human rights organisation headquartered in Bangkok. Manushya lead the ASEAN Coalition to #StopDigitalDictatorship that was established in 2020. 

Hi, everyone. My name is Gema Gita Persada or Gema, to be short. I am currently working as a public interest lawyer in a legal aid organisation or a legal aid centre for the press. It’s a legal aid organisation that provides legal aid for journalists and media workers.

That is Gema Gita Persada, Public Interest Lawyer of LBH Pers. LBH Pers is a non-governmental organisation founded in 2003 in Jakarta that focuses on realising a democratic civil society through legal aid efforts and advocacy for press freedom and freedom of expression in Indonesia. 

In this episode, we will talk about unlawful surveillance in Southeast Asia, what can we do about it, and of course, what can the listeners do to help this process.

INTERVIEW

Manushya Foundation

We are here still talking about Pegasus. We’re still discussing the issue of spywares and surveillance and all of those things. But let’s start with Candra first. You’re currently with Manushya Foundation. Can you tell us a bit about your work there and about the Foundation itself?

Okay. In Sanskrit, Manushya means human being. Manushya Foundation was founded in 2017 by our Executive Director, Emilie Palamy Pradichit, with the vision to build a movement of equal human beings. As an intersectional feminist organisation, we wanted to reinforce the power of humans, in particular local communities and women human rights defenders, to fight for human rights, equality and justice.

Even though we were born in 2017, we have changed our tagline from ‘Empowering Communities – Advancing Social Justice’ to ‘#WeAreManushyan ∞ Equal Human Beings’. We are building a movement of humans working from a place of heart, treating each other following our values with equality being a core one.

We also stop using empowerment as we believe that all humans have power. Patriarchy, oppression, neocolonialism, racism, and xenophobia are suppressing people’s power. Thus, our goal is to reinforce the existing power that we all have within.

Our vision is we believe in the infinite powers, infinite positive power of humans in building together the inclusive, just, equal and peaceful societies in Asia where everyone enjoys human rights, leaving no one behind. Meanwhile, our mission is to connect and reinforce the power of local communities across Asia to be at the centre of decisions and policies that affect them.

Communities become agents of change, fighting for their rights and providing solutions to improve their lives and livelihoods. One of Manushya’s focuses is democracy and digital rights, where I currently serve as the advocacy and campaign associate under that portfolio.

Manushya Foundation

Southeast Asia Context

Yeah, and that’s how we connected, right? Because you’re working on democracy and digital rights and a bit of global context there as well. Tell us a bit about that you’re working on.

Yes. Let us zoom into the regional context within Southeast Asia. In Thailand, we can pronounce a case and awareness about the utilisation surrounding the Pegasus malware as a spy was propagated between October 2020 and November 2021. It was primarily targeting the pro-democracy activists in Thailand. The alarm was raised when the activists received an email from Apple in November 2021 notifying them of potential targeting by surveillance directed at their iPhones.

This revelation came to light through an investigation that was conducted by the CitizenLab. This is a Toronto-based digital security think-tank along with two Thailand-based rights groups, iLaw and Digital Reach, which was made public in July 2022.

In the wake of this expose, the Minister of Digital Economy and Society acknowledged that certain departments within the Thai government had indeed employed Pegasus for reasons of national security and combating drug trafficking. We can see here the repercussions of its deployment are an ongoing affair.

The recent developments have captured public interest as a group of anti-citizen made history by jointly filing a lawsuit on 15 November 2022 against the NSO group. Unfortunately, their legal efforts were met with disappointment as a civil court in Bangkok dismissed the lawsuit.

We also can see the development in Indonesia as well. The recent investigative report from the whistleblower group, Indonesia Leaks has garnered significant interest from civil society organisations within the country, including the Southeast Asia Freedom of Expression Network, or known as SAFEnet at the regional level. Manushya also issued a joint solidarity statement addressing the concerning upward trend in our region in Southeast Asia.

Indonesia Leaks

I wanted to highlight this joint statement. The coalition calls on the government of Indonesia and Thailand as well to take immediate action, urging them to chase and ban the use of targeted digital surveillance technologies.

By these findings, we present a timely opportunity to bring attention to the current situation in Indonesia that targets not only pro-democracy activists, but also high profile journalists and political opponents. It sets light on an emerging trend in the utilisation of Pegasus within Southeast Asia. The increasing frequency of its use in the region highlights the importance of being vigilant and raising awareness about potential threats to privacy rights and digital security among Southeast Asians.

Surveillance is a Practice of Human Rights Violations

Yeah. Oh, wow. Thank you. Just wanted to remind the listeners here that this is a series. We’ve talked to Yingcheep, one of the aforementioned activists in Thailand who got infected by Pegasus and received the notification from Apple. We talked to Irene from Citizen Labs. If you want to get more details on that, check out our previous conversations in this Pegasus series as well. Now I would like to ask Gema, because previously in the previous episode of the Pegasus series, we did the conversation in Bahasa Indonesia, but you were mostly talking about the legal aspects of this. What’s fascinating to me here is that now we’re discussing legal aspects from the other side, which is this narrative that Pegasus and surveillance in general is conducted to counter terrorism. It’s always for security, it’s always for safety. Yet, its usages, its practices is, of course, against journalists, activists, and all of those things. What are your thoughts on this?

I can see from how the government is practising that the interest of surveillance is not more than just to spread fear amongst the people, in order to silence us, in order to shrink our space in activism. That is the main goal of all of this in my perspective. This is very dangerous, especially for democracy. Here is why.

The first thing I can see is that people are being surveilled, which definitely could make us feel unsafe. Instead of increasing the ability of practising our critical thinking on how or what the government should have done and stuff, people will tend to fear to spill it out.

Sooner or later, this will lead people to shape a new cycle of thinking which ends to stop criticising the government. People will be used to playing along with everything that might happen. The cycle of check and balances between people and government will be significantly decreased and the term of democracy itself will be left a meaningless label.

The second is that

Under democratic system, the government must comprehend and most importantly, internalise the idea that their priority has to be the rights of the people, the best interest of the people and fulfil every aspect of human rights.

Surveillance is a practice of human rights violations.

Thus, conducting this is a form of violating human rights. If they do so, we can see that their priority is not the best interest of the people, of us. Presumably, it is their own interest in which they consider as the most important thing to be kept or guarded. This is important to highlight that the use of Pegasus has violated the rights of privacy, and threatened the freedom of expression.

I believe in the rights of a safe space for us people, especially those who are actively working or advocating for the rights of the people. So let alone that this practice is a threat to democracy, it is also a setback for a civilised nation.

7 Areas of Concern

That’s interesting because in another conversation we had not on Pegasus we kept on emphasising this idea that the law is actually a narrative. It’s not just the practical usage of the law to pursue people, to indict people and stuff like that, but also it serves to send a message to the public. These narratives about terrorism, while having surveillance making people feel unsafe, which is ironic, but that’s also a purpose that authoritarian governments are really pushing for that really benefits them. In Manushya Foundation, of course, you have your concerns about human rights, which is way up there in your priority list. But also in Indonesia, we have the Constitution of 1945, which guarantees the right to freedom of expression and speech and the right to privacy. We also have the PDP law to ensure privacy and data protection, which is the same in Thailand. That’s the 2017 constitution for the right to freedom of expression and for the right to privacy and data protection, the PDP. What are your thoughts on this, Candra, about how the governments are failing to fulfil these rights? With these actions that they’re doing, they’re actually being counterproductive to these promises that they’re making to the people.

This is what’s been on my mind for a long time. I firmly believe every human rights defender out there also agrees that the protection of freedom of expression and privacy is crucial for upholding human rights and it’s essential for governments, every government, government in Asia and globally to fulfil their international obligations in this regard.

Legal frameworks like the Constitution of Indonesia and along with privacy laws such as PDP or PDPA, provide a foundation for safeguarding these rights. There can be instances where governments may fall short in fulfilling their obligation. My concern and the challenges that I tried to analyse before.

The first one would be the restrictive legislation and regulations. Governments might have laws or regulations that impose restrictions on freedom of expression such as low criminalising defamation, blasphemy, or political dissent. This restriction can be used to silence criticism and limit public discourse. Secondly, surveillance laws and practices that influence privacy rights may be implemented, allowing for unwarranted monitoring of individuals both online and offline.

The second concern is censorship and online freedom, where a government might engage in censorship, particularly in the digital space, by restricting access to certain websites, monitoring online activities, or limiting the use of social media platforms.

This can curtail the free flow of information and freedom of expression that can end up for the media freedom as well. Secondly, the internet shutdowns or restrictions during a political event or protest can also be used to control information flow and limit citizens’ ability to express themselves.

Third, about the political interference and harassment, governments may use legal or extralegal means to target individuals or groups critical of the government. This could include harassment, arbitrary arrest or legal action that’s civil dissent and create a climate of fear.

Then fourth, the lack of independent judiciary. An independent judiciary is crucial for upholding human rights. If the judiciary is not independent, there is a risk that a legal action against an individual exercising their right to freedom of expression might lack fairness and impartiality.

Fifth, the inadequate data protection measures, while privacy laws like PDPA exist, their enforcement and the establishment of robust data protection mechanisms are critical. Inadequate protection of personal data can lead to privacy breach undermining individual trust in the ecosystem.

Then sixth, the selective implementation of laws. This is like cherry-picking. There may be instances where laws protecting freedom of expression and privacy are selectively implemented, creating a lack of consistency and fairness in their application in the country.

Last, lack of transparency and accountability. The government might not be transparent about their action, especially in the context of surveillance or data collection. This lack of accountability mechanisms can make it difficult for individuals to seek redress in cases of rights of violation.

In conclusion, addressing these challenges requires a commitment to the principles of human rights, a strong and independent judiciary, I believe Gema will agree with me, as a public interest lawyer, the transparency of governance and an ongoing dialogue between civil society and government institutions, international scrutiny and advocacy also play a role in holding governments accountable for fulfilling their obligation to protect freedom of expression and privacy.

Intersectional Lens

I would like to hear from Gema next, but maybe I want to hear a bit more about this intersectional approach that you’ve been mentioning with Manushya. Because again, we have a special repertoire, which is very strategic, but also we need an intersectional lens. Can you explain more about this intersectionality, this intersectional approach?

I mentioned that Manushya is an intersectional feminist organisation. Back to the definition of intersectionality itself is a lens through which you can see where power comes and where it intersects. An intersectional lens refers to an approach that recognizes and analyses the intersection of various social categories such as gender, race, class, sexual orientation, and other identity markers.

When we discuss the role of a special reporter in the context of counterterrorism and human rights, applying an intersectional lens means considering how multiple forms of the discrimination and operations might overlap and intersect in the experience of individuals or groups.

In the context of freedom of expression and privacy, adopting an intersectional lens involves understanding that individuals may face discrimination or violation of their rights based on a combination of factors.

I would say a few example, gender and expression, race and privacy, economic status and access to information, LGBT rights and privacy, also disability and access to communication that need to be adopted as intersectional lens and a special reporter can better understand and address the complexity of human rights when he cannot left behind for the sake of a counterterrorism.

It also allows for a more nuanced analysis of how different forms of discrimination and disadvantage intersect and compound then leading to unique challenges for individuals or groups, even for a nation.

Moreover, considering intersectionality in the work of a special repertoire promotes a more inclusive and comprehensive approach to human rights advocacy, it recognizes that individuals do not experience discrimination or violation in isolation.

But within a broader context shaped by the intersection of various social identities, this understanding is crucial for developing policies, recommendations, and intervention that effectively address the diverse and interconnected aspect of human rights violation on this matter about counter terrorism and freedom of expression.

Indonesia’s Police

Thank you, Candra. That was pretty extensive. I do want to bring up the point again that you also mentioned, Gema, there about the need for a strong and independent judiciary with this perspective, with this intersectional perspective. Gema, I would like to hear your thoughts on that specifically, because last time we also spoke about reporting violations to the police and also there’s the law of public information disclosure, which we can actually request the police to disclose specifically in this case, the procurement of Pegasus in Indonesia. But as we know, the police is not an institution that’s famous for their intersectional feminism. What are your thoughts on this? Because how do we deal with the police? How do you think the police will actually respond to this, especially in the context, in all of these conditions that Candra just mentioned?

As a context first, the public information, as we all know, the public information request has been submitted on October 7th by the Indonesian Corruption Watch. The police have to respond at least 14 days after the request is submitted. To the best of my knowledge, the police haven’t given any response yet until this day. Maybe we all can predict that the police will not give any response.

ICW researcher Tibiko Zabar speaking at police headquarters in Jakarta – October 9, 2023 | Photo: ICW

Regarding these specific efforts, we ideally could submit another request or a following request to ask the police to respond. If they still do not respond, then we can continue the process to the Information Commission. It will be like a normal trial, demanding the police to disclose the information we’ve been requested previously.

I personally would predict that the police will act as if nothing has happened, as if they will not answer the request, they will act foolish. Can I say that? Yeah, my prediction is based on some precedents in others advocacy works of ours that related to requesting public information mechanisms. Or even if they do, the response would not necessarily be a fantastic discovery. Yeah, that’s my thoughts on how the police would react.

Counter Terrorism & Surveillance

Yeah. I mean, it is tricky because it’s as if we were not really… Obviously, we can’t rely on the police, but also at the same time, what else can we do? Who else can we rely on? Especially, again, even if the police do respond, it’s difficult to even think that they might address all of these important issues, important intersectional issues, especially because, again, this is not really about the violations, it’s about what the law says. It’s about whether surveillance promotes fear, an atmosphere of fear, or as we all believe, or as they claim, it is actually a measure for counterterrorism. I’d like you to comment on this thing, though, on this blurred line between intrusive surveillance that promotes fear and also the use of technology for counterterrorism, are there legitimate uses, are legitimate contexts where I think we did talk about this last time, but maybe you can touch on this again a little bit, about where surveillance might actually alleviate the fears of society? Or do you think surveillance is bad no matter what? What are your thoughts?

My take on this is that, first thing first, is that the government or any party must tell a clear definition of terrorism. Most of the time, the government uses the terrorism label to those who happen to disrupt the government interest. Then this labelling activity becomes their justification to violate people’s rights.

Government takes advantage of these blurry lines between intrusive surveillance and the use of technology with an unclear definition of terrorism as their justification.

And surely the government also takes advantage of this blurry line to shrunken civic space to silence us down. As I read somewhere the other day, technology is a legit form of human development as well as the acknowledgement of human rights.

It is the politician or a government who made it as a tool to set back the civilised nation to the times where people have no power. And as for the question regarding which time or does the government have a legitimate reason to use this practice is back to the term, they must tell a clear definition of terrorism itself.

It must be measured clearly what terrorism or what criminal that is really threatening the government’s interest, as in also the interest of the people. The fact that we don’t have comprehensive regulations regarding the interceptions, is also an image that the government does not really pay attention to people’s rights.

Counter Terrorism & Political Violence

Yeah, and I think that’s quite key, isn’t it? When you mention government interests and the people’s interests, they’re not necessarily aligned, right? Yeah. I mean, yeah, sure, activists and journalists, they might very well go against government interests if the government is authoritarian or corrupt or otherwise is against the interests of the people, then by all means, we should disrupt government interests, right? Because the issue here is not the interest, it’s the misalignment of government interests and the people’s interests and the fact that there seems to be no effort to actually align these and they just use the term terrorism. As we’re all familiar with in the past or even until the present, some governments are still using the tags like communism and all of those things. There’s a famous red tagging that is still happening in various countries in Southeast Asia. Candra, I know you work a lot on this. Can you tell us more about how this counterterrorism issue has been used to legitimise the control that the governments have over its people?

Terrorism and political violence have long happened in Southeast Asia. Events like the 2002 and 2005 belly bombings, the 2003 and 2009 Jakarta bombings, and the 2004 SuperFerry 14 bombings in Philippines have been into the collective memories and shared trauma of Southeast Asians, both governments and the civil societies.

More recently, with the rise of the Islamic State, we recognized the increased coordination of terrorist groups between Southeast Asia countries. The 2016 Sarinah shooting in Jakarta also demonstrated how terrorism needs to be taken care of. The 2017 Siege of Marawi displayed unmatched levels of destruction if terrorist groups band together.

Critically, the 2018-Surabaya, multi-family suicide bombing, it was the potency of terrorist ideologies in radicalizing entire family units. The recent gun violence on 3 October, which killed three people at Bangkok, Siam Paragon, a public space in Thailand, indicated how the roots and solution for countering this issue must go beyond then strategic studies. Ultimately the trait of true terrorism as a political violence should not be downplayed.

Counter terrorism laws commonly employ the term terrorism without providing clear and precise definition.

I would say I agree with Gema and oftentimes it relies on broad, ambiguous language and it’s rooted in colonialism.

Moreover, this term is frequently associated with terms like violent extremism and radicalisation which is also used without adequate definition. These expansive terminologies create complexities within the regulatory framework and affect legal certainty.

Therefore, I firmly believe and my take on this matter is vital for law enforcement agencies to outline the national definition of terrorism and of violent extremism, radicalisation, and the categories of people that might be subjected to surveillance. Having a clear, fair, and unbiased national definition of terrorism established boundaries of the internal threat.

After establishing the limits of the threat, authorities can highlight persons of interest based on pre-established criteria. There will be no impeding on counterterrorism efforts while avoiding over-stretching into regular citizen, privacy and including us human rights defenders.

Civic Participation

Okay, I’d like to follow up on that by asking do you think the public will or even can play a significant role in the shift in this change. Because, Gema, you did mention earlier about the definition of terrorism, which Candra echoed. But how do we begin to shift this? How do we demand the government, demand authorities to actually create this proper definition of what is actually terrorising society? How do we create this alignment of government interests and public interests just simply in the context of safety, in the context of actual terrorism, which, as you mentioned, Candra, is a real threat, is an actual threat that should not be downplayed. What do you think the public’s role is? How can we bring together the public or even the listeners here to participate in this process, in this demanding a clear definition of terrorism, demanding more proper alignment of government interest and public interest in terms of security and safety, in terms of defining what terrorism is, what counterterrorism is, because obviously we want to be safe, but we don’t want activists and journalists and stuff to get jailed, to get surveilled. What are your thoughts on this civic participation element in this shift, in this change?

Earlier, someone mentioned “law no other than narrative,” if I’m not mistaken. Unfortunately, the narrative on this matter is always that we need to choose one in between. Prioritising counter terrorism means normalising surveillance. But the widespread and systematic targeting of civil society by technology surveillance as weapons has undermined the effectiveness of a counter terrorism effort.

Back in 2016, during the launch of the plan of action to prevent violent extremism, Ban Ki-Moon, the former Secretary General of the United Nations, said a single-minded focus only on security measures and an utter disregard for human rights have often made things worse. Now that is more relevant than ever, including in our region.

Listeners may start to see the world of terrorism now has been weaponizing upon the human rights violation that happened in Palestine. The increased perception that counter terrorism efforts serve as a technology or tools only for the state to control civilians. The best way is to maintain meaningful engagement with society when conducting counter terrorism efforts.

I would speak as a Balinese person who was impacted by the Bali bombings both in 2002 and 2005. I’m the witness of the recovery process that took almost a decade to address both material and immaterial consequences.

Countering terrorism requires more than just surveillance. It involves a comprehensive effort that is deeply rooted in each individual.

This includes a consideration for mental health, fostering kindness, and avoiding stigmatisation of differences, any differences, even seemingly a small action. It can contribute to creating positive change and it’s crucial to start this transformative process in the immediate surrounding the issue.

Regional Solidarity

I fully agree. It is about really reclaiming the narrative then, if I can conclude, about starting to see the word terrorism and how that’s been weaponized about realising that, hey, surveillance and terrorism are like two completely different things. Redressing the damages and the threats faced by terrorism isn’t really just about surveillance. As you mentioned, considering mental health, fostering kindness and avoiding stigmatisation, stuff like that will help us to push further towards this change. I would like to ask Gema then. This is probably, I think this will be the concluding part, concluding conversation of our podcast is what are your thoughts on this specifically? What are your thoughts on the civic participation of how to get the public, how to get the listeners more involved in this shift, in reclaiming this narrative? Then further, what do you hope for after this is done? Of course, we would need to build Southeast Asian solidarity because it is something that’s happening across Southeast Asia. What are the things that need to be initiated, do you think, to actually start fostering this Southeast Asian solidarity? And what are your hopes for it, Gema?

I really wish that the solidarity, as a fellow citizen of a third-world country under the greedy government amongst people in Southeast Asia, could grow in an even broader scope of community, not only for the activists or people who are actively advocating for this issue, but also another community.

It has to be initiated by the activists, I think, and people that I just mentioned before, people who are actively advocating for this issue to man streaming on how dangerous this violation is so more people can be more aware and acknowledge on which and what action we, as people, can take together.

Surely if we succeed to build more solidarity and awareness and acknowledgement, as I mentioned before, it could be easier for us to fight for our rights against the critical government.

Thank you. Again, it comes back to that. We are saying the same tune over and over again in this podcast. But that’s because it’s a tune that’s very important, which is bringing together people across nations and just realising how much we are similar in our struggles that we all need to claim narratives. Threat. We all need to, again, as Candra mentioned, reclaim a perspective of intersectionality. We need to be more critical in terms of what we mean? What does the government mean when they say they’re concerned about safety, they’re concerned about security? What is terrorism? What is counterterrorism? What do we actually want? The fact that we can, again, go back to Candra’s point earlier about we all have power, is just that they are so oppressed. Empowerment, although, Sandra, you hate that word, but giving people back their power to actually make a difference in reclaiming these narratives and building the solidarity, I think that’s very important to counter not only surveillance, but all of these other encroachments against democracy that governments across Southeast Asia are doing. With that, I think we had a really great conversation. Thank you very much for your participation here Candra and Gema.

OUTRO

And that wraps up our discussion with Ni Putu Candra Dewi and Gema Gita Persada.

You can find all of the articles and reports mentioned in this podcast on our show notes at newnaratif.com. You can also listen to this episode and other episodes of our Pegasus Series at KBR Prime’s Ruang Publik podcast, which you can find on kbrprime.id.

Spread the news, share this podcast, or write to us your opinions and questions regarding Pegasus and unlawful surveillance of civilians. You can also find comic explainers and information for discussion events on our website and social media channels. 

My name is Bonnibel Rambatan, and this has been Southeast Asia Dispatches. Brought to you by New Naratif, and produced by Dania Joedo and Malika. I’ll see you around.

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