The role of public interest litigation

– Dr. R. Rueban Balasubramaniam
The Malaysian Insider
August 19, 2013

After the recent general election, Malaysian democrats have again been frustrated. Once more, the United Malay National Organization (“UMNO”) emerged victorious, though many believe this was the most fraudulent election in Malaysia’s political history. Now, democrats are redoubling their efforts to reveal such fraud and to seek electoral reform at least with an eye to winning the next election.

Democrats take solace in the fact that UMNO is on very vulnerable political terrain; it cannot compete fairly within upon a democratic playing field, but they should not just exert political pressure on UMNO. They can use another strategy: public interest litigation designed to embarrass UMNO’s ethnocratic political program, a program rooted in an authoritarian and discriminatory principle of Malay political dominance. Through such litigation, democrats can cast further doubt on UMNO’s claim to exercise legitimate political rule.

At present, Malaysia has no tradition of public interest litigation. This, despite the existence of a supreme written Constitution that contains a bill of rights and provisions that protect important group interests within a rubric of legal equality and provisions that express the principles of the separation of powers and federalism, which guard against the excessive concentration of power in any single organ of government. It is plain that the constitutional framework imposes legal discipline upon political power in a way that is hostile to authoritarian rule that is readily amenable to public interest litigation.

Yet, no tradition of such litigation has emerged because the long-standing UMNO government has attempted to prevent citizens and judges from developing such a tradition. In the 1980s, after concerned citizens went to court to ask judges to check state authoritarianism by reference to constitutional norms, the government, led by Dr. Mahathir Mohammad, UMNO’s most well-known ethnocrat and the country’s longest serving Prime Minister, put an end to this practice. It sacked judges and amended the Constitution to limit judicial review. And, allegedly, the government rigged judicial appointments to produce a compliant judiciary.

Bracketing the question whether or not the courts are now well placed to develop a tradition of public interest litigation, it first bears noting that the conditions are right to revive public interest litigation. UMNO is weak. It no longer has a supermajority in Parliament and cannot amend the Constitution to suit politically expedient goals. Nor can it afford to appear to meddle in judicial affairs. Perhaps most significant is that UMNO lacks competent leadership. This is the result Dr. Mahathir’s long reign as UMNO head. Fearing challenge from within UMNO, he did not groom an adequate leadership structure within the party, so when he retired in 2003, he left it without the intellectual wherewithal to survive.

Right now, in a well-worn strategy, UMNO also seems keen to invoke the Constitution in its favour, precisely because it is politically weak. In the 1980s, the government argued that there is a “sacrosanct social contract” between Malaysia’s Founding Fathers in the Constitution, entrenching a legal-political principle of “Malay Dominance.” This argument inverts the doctrine of constitutional supremacy, which usually applies to impose hard legal limits on state power to protect citizens. UMNO relies on the doctrine to impose hard legal limits on popular politics to immunize the ethnocratic paradigm from political challenge under the guise of constitutionalism. It uses the doctrine to entrench an authoritarian state power over citizens.

Unfortunately, democrats have not developed an adequate response to this stance. Some lawyers and academics have sought to debunk the ethnocratic reading of the Constitution but they have only made a negative case. They have not set out a detailed constitutional vision for society that begins in an interpretation of abstract values of political morality like democracy, legality, and social stability and explain how these yield middle level principles that fit and justify the Constitution’s text, structure, and history, ultimately culminating in practical claims about what the Constitution requires.

In short, democrats need a theory of the Constitution capable of offering guidance for political deliberation, debate, and judgment suited to a pluralistic society like Malaysia.

Any such theory is likely to show how the Constitution enacts a “constitutional democracy,” not dictatorship. The cooperative efforts of thinkers, lawyers, judges, and citizens will be needed to build such a theory. But the principal laboratory for the construction of such a theory is the courts. There, conscientious lawyers and judges can apply and refine a coherent constitutional theory in the context of specific constitutional problems.

This is where the strategy of using public interest litigation will be crucial. The very recent Malaysian High Court judgment in Indira Gandhi on the constitutional validity of unilateral conversions of children by a Muslim parent shows how this strategy might work. In an impeccably reasoned judgment, Lee J articulates middle level principles to interpret constitutional text, structure, and history and then applies that interpretation to the issues before the court. While he does not set out a deeper theory of the Constitution, he alludes to such a theory in a postscript, noting that one has to read the Constitution as creating a framework of social cooperation predicated upon equality and tolerance intended for a pluralistic society. It is also worth noting that he expressly encourages public interest litigation as a way to develop this vision of the Constitution.

Lee J’s judgment foreshadows the sort of strategy for democrats I suggest here and reveals the power of that strategy. In this case, his arguments require the government to respond with a constitutional argument that lays bare its deeper theoretical assumptions about the Constitution, assumptions which will then be subject to legal testing that is apt to reveal that UMNO’s view of the Constitution is legally mistaken and politically unpalatable in a plural society. Public awareness of these problems is then likely to generate significant political pressure on the government to either accept meaningful democratic reform or eventually to exit.

Lee J’s decision shows that judicial independence is not dead in Malaysia and that courts can advance democracy via public interest litigation. – New Mandala, August 19, 2013.

* Dr. R. Rueban Balasubramaniam is Associate Professor of Law and Legal Studies, Carleton University, Canada. He is also the principal founder of The Juristmalaya Initiative for the Rule of Law (www.juristmalaya.com) and is among the speakers at the Roundtable on Malaysia: Political Constestation Beyond GE13 and the Malaysia-Singapore Update 2013.