Why do strategic litigation? The same reason why people sing in a band and go to war – to meet girls and boys, depending on their predilection.
Thank you for joining us, whether you’re a young or senior member of the legal fraternity who have seen it all and inhaled some. A warm welcome too, to engaged members of the public, bloggers, and media.
I wish to touch briefly on the growing importance of strategic litigation, and urge everyone to join us in this enterprise, especially our young lawyers just embarking on their careers.
A big tent for all citizens
Strategic litigation is everybody’s business. As Malaysians, we each have a stake in our Federal Constitution. It sets out our fundamental rights and obligations, and the roles of the royalty, executive, legislative, judiciary, and other key federal and state institutions that govern our lives.
Strategic litigation is a powerful tool to defend individuals from unjust laws, regulations, and authorities when they overstep the boundaries drawn by the Constitution. The individuals who most need this tool are also the most powerless and voiceless in our society.
The Malaysian, threatened with jail for expressing his views.
The mother, whose child is taken away by her ex-husband.
The student, punished by his university for organising a peaceful assembly.
The woman, whose employment is terminated because she is pregnant.
The Orang Asli, who has had his land taken away from him unfairly and without fair compensation.
This conference and the gathering of so many of you here today is a culmination of years of effort on the part of the Bar Council, in particular, its Human Rights and Constitutional Law Committees, and the Malaysian Centre for Constitutionalism and Human Rights (MCCHR), to educate and engage citizens on the Constitution.
The MCCHR supports strategic litigation. It is also a physical realisation of the Loyarburok “blawg”, whose primary goal is to promote awareness and discourse among citizens on their constitutional rights and the legal aspects of current issues of the day. What started out for fun in early 2006 and aimed at disrupting the climate of censorship back then has grown into a vibrant community. First, a blawg by Fahri Azzat, Amer Hamzah, Shanmuga Kanesalingam, Edward Saw, Sharmila Sekaran, and me; then, small groups, to a one-day workshop, to a camp at the instigation of New Sin Yew and Khaizan Sharizad Binti Ab Razak; and now a conference.
I applaud the long line of Bar Council presidents, leaders, and members for their support throughout. And I thank the MCCHR’s Long Seh Lih, Lim Ka Ea, Mazni Ibrahim, Khairil Zhafri, Liyana Bakh, and their teams and my fellow Loyarburokkers, for organising and managing this conference: Arina Ong, Honey Tan, Syahredzan Johan, Khaizan Sharizad, Rachel Tan, Mark Pius, Shugan Raman, Declan Loke, Thomas Chin, Pang Jo Fan, Emily Chong, Jerry Cheong, Rajsurian Pillai, Dinesh Muthal, Shatrani Yogi, Daniel Teoh, Tee Chee Xiang, Yohini Nair, Woon King Chai, Satha Selvan, Faizal Bin Mahat, and Najwa Syazwani. Many of those whom I named are products of our Strategic Litigation camps and you will be seeing them more often in our courts. Our next crazy goal would be to build a school for strategic litigators as part of this ecosystem.
I also want to acknowledge the role of legal experts — academics and judges, who serve to inform public discourse with their learned commentary and judgments on our Constitution. They help to reassure the public that our Constitution is perfectly compatible with key tenets of all religions and human rights, and in fact draws inspiration from them.
Mainstream and online media, and non-governmental organisations and bloggers — left, right, and centre, should also be recognised for calling attention to issues with broad legal implications. It is a misperception that only “liberals” – whatever that term might mean – are involved in strategic litigation. Instead, I urge everyone to join this conversation. The one ground rule is that we agree that the Constitution is the supreme law of the land. If parties believe it has to be amended, they may lobby for this through democratic and constitutional mechanisms using the liberties granted to us.
What keeps us going in strategic litigation is our belief in the possibility of progressive judgments by members of the judiciary. I am particularly pleased to note the presence of Tan Sri Ahmad Bin Haji Maarop and Dato’ Balia Yusof Bin Haji Wahi today. The judiciary is the Bar’s partner in delivering justice without fear or favour. An understanding approach to the plight of litigants in difficult rights cases is needed. Where necessary and appropriate, it is the duty of the Bar to defend the judiciary, for judges by the nature of their office cannot publicly respond to critiques of their decisions.
I am further encouraged to see the active participation of our retired judges – Dato’ Mohd Hishamudin Mohd Yunus, Dato’ Mohamad Ariff Bin Md Yusof, and Dato’ Mah Weng Kwai – at this conference. They have made great strides in showing how the law can speak truth to power. Importantly, their judgments have given us hope. Whether the judiciary is growing more open to strategic litigation and hearing out our arguments, is still left unanswered. But an increasingly engaged and informed public will hopefully accelerate this trend.
Strategic litigation cannot operate purely within the legal realm, because its causes and outcomes are a distillation of the dynamic conversation that society is having with itself. Among this constellation of players, lawyers are central. No lawyer, no case. Many considerations discourage lawyers from taking it up. They range from concerns about the demand on their already hectic schedule, to financial trade-offs, to the assumption that strategic litigation requires them to become activists and get embroiled in partisan politics.
My advice is this:
• Only a lawyer can do this. Anyone can rant about the state of our country on Facebook and Twitter, but very few of us are privileged and qualified to do something about it. Lawyers are obliged by the Constitution to uphold justice – we are meant for this! As a start, you will be nurtured and guided by the more experienced lawyers in a strategic litigation team. When you are ready to take on cases yourself, you would still be able to approach any one of us for advice. We are a strong support group that you can count on.
• Professional development and exposure. As a pupil involved in public interest cases, I was quickly exposed to tradecraft and complex cases that a lawyer of seven years may otherwise only be starting to handle. You will have a huge impact in terms of changing laws and policies, and improving the lives of countless citizens. It is more meaningful than any other legal work.
• Personal fulfilment. It keeps you honest – you get to come down from the rarefied air of the so-called legal eagles, and get your hands dirty at ground zero. Till today, I find myself to be still learning and excited about the work. You will develop self-awareness and independence. You are less likely to have the typical mid-life crisis, where at 45 or 50, you wake up one day and ask what the meaning and purpose of your life is, especially if you already have a sports car.
• Level and type of commitment. This is up to you, and you should treat a strategic litigation case as one among others in your portfolio of regular cases. It is also up to you, whether you want to focus solely on lawyering, and leave the public advocacy and media engagement to others, or if you relish the profile and opportunity to do it all. Lawyers who do strategic litigation come in all stripes – some in t-shirts and slippers, others in three-piece suits and pocket squares.
• Importance of a support network. In a space of a few years, the Bar and the MCCHR have been able to train no less than 80 activist lawyers and graduate them in the tools of strategic litigation. We will find this network growing larger with you on board. If you are committed to doing strategic litigation, be sure to look for firms known to be supportive of such work. Your family and friends will come round, sooner or later.
• Tending the fire. It is tempting to say, “let other lawyers do this, I’ll cheer them on at the side”. Wrong! Each of you brings to the table your unique talents and perspective. It is the solemn duty of my generation who are slightly older now to pass on our experience and the mantle to you.
Role of strategic litigation in nation-building
Engaging in strategic litigation is an act of faith and love for our country. Our cases not only help the litigants or victims, but society at large. They also change public perception and increase awareness of how a developed and civilised country should behave.
Because it is almost impossible to discern what is the truth in public matters these days, it is tempting to navigate ourselves by reacting to most issues based on partisan loyalties. This has cast its shadow on strategic litigation cases too, which are often portrayed as against the Barisan Nasional government, and even against religion. This may appear so because of the current players in power, and those outside. However, in countries like the US and the UK, cases are brought up, whether the government is run by the Republicans or Conservatives, or their adversaries. Rather than being on the defensive, religious groups are often just as activist as those fighting for other civil liberties.
Strategic litigation had a vital role in the abolition of slavery and ending racial segregation, and no one today cares which party was in government then. Similarly, cases concerning police enforcement and race issues continue to be brought up in the US courts, regardless of the party in power.
The truth is, strategic litigation arises out of necessity, rather than any partisan agenda. It is often pitched by the media as a slugfest between liberals and the government because it makes a good story. But the start and end point is always the victim, who can find no other recourse, and who in turn represents countless victims before and after him/her, who would continue to suffer if a law or the way it is enforced, were allowed to remain. On the other hand, the state is entrusted with vast powers and resources, to govern the nation while upholding human rights. Given this unequal power dynamic, it is no surprise that every government in the world is the biggest violator of rights, whichever party or coalition is in power.
Some of those who had argued that there was nothing wrong with detention without trial woke up recently with the discomforting discovery that it can be used on one of their own. And while political rights are often highlighted, individual rights also encompass economic and social rights, e.g. the right to health and education services. Surely these are not partisan matters and are worth fighting for.
We have a shared interest in a robust justice system and law enforcement, which treats all equally and humanely. This is the prize: to build a just society where each individual can live with dignity and without fear. Federal and state governments are led by political parties and players, who come and go. Let us go behind John Rawls’ veil of ignorance. If we sympathised with the Muslim minorities in Myanmar or France, we must continue to uphold the rights of religious minorities here. Human rights values are not new to our nation, our independence was won partly on grounds of the basic right to self-determination and freedom, and our Constitution has been inspired by both faith and universal human rights.
Strategic litigation is seldom achieved with one case, and often builds on previous unsuccessful cases. Win or lose, it is about upholding the principle of effective access to justice. So it is always a win, because you are contributing to Malaysia’s nation-building. Amidst the overwhelming pessimism today, I’ve always remained optimistic. I’ve always believed in the inherent goodness of every human being. We are now in the birth pangs of a truly democratic system. In this period of transition and uncertainty, is also the time for Malaysians to set aside our differences, recognise that the government cannot solve all our problems, and that we need to gotong-royong again. We can once again be a confident, cosmopolitan, and outward-looking nation, imbued with a zeal for progress and development, acceptance of people of different creeds, and for lending a hand to those less fortunate.
Call to action
Let us each put out a hand, lend an ear, and gently engage those who hold different views, but with equal sincerity and passion as us. Fear, insecurity, and isolation only serve to harden us, into holding on to our position and discouraging us from opening up.
Finally, I urge our lawyers to sign up at the MCCHR booth outside, to get involved in strategic litigation. Help spread the word and get your colleagues to join you too.
Keep on knocking, with us. One day, the doors will open.
Thank you for being part of this community.
Closing remarks by Edmund at the Malaysian Centre for Constitutionalism and Human Rights-Bar Council Strategic Litigation Conference, 3 October 2015, Parkroyal, Kuala Lumpur. This speech was published by LoyarBurok, archived here.