Another Day, Another Doomed Strategic Litigation

Rayner Yeo takes us on a short educational trip into the world of strategic litigation cases using a recent banned book example.

The date was 6 August, 2012. It was Nuzul Al-Quran holiday for some states, including Selangor, the state in which I am currently working. How did I spend this precious holiday? Well, I decided that the best way was to go to the other states where it was not a public holiday, and watch people there work their asses off and be glad that I was not working on that day. Yeah, I know that is mean. But guess who those unfortunate fellas were? LoyarBurokkers la, of course. Otherwise I would not want to write about the experience in a LoyarBurok blawg, would I?

6 August 2012 was the day of hearing for the appeal of Arumugam a/l Kalimuthu vs. the Minister of Internal Security, Deputy Minister of Internal Security as well as the Government of Malaysia in the Court of Appeal. The appellant, Arumugam, is the author of a banned book, titled ‘Mac 8’. Guess what the book is about? Okay, some of you may think that it is a book about the political tsunami in 2008. No, it is not. The book was published and banned in 2006, way before that watershed election. A book about International Women’s Day, perhaps? I know it may be exciting to imagine a male having written about this subject, but no, this is not the case either. A book about Samy Vellu? No, no, no. While it is true that the Datuk was born on that date, this book was not titled as such because of it. Neither was it titled so because he was defeated in an election on that same date four years before.

Will they lift the ban? | Source: http://bit.ly/QqMqyt

Having said that, although this book is not specifically about the former Malaysian Indian Congress President, it does have something to do with the Indian community in Malaysia. It is about the Indian-Malay ethnic clashes in Kampung Medan that occurred from 4 to 8 March, 2001. The title ‘Mac 8’ may give off the impression that it was published in Malay but it it was actually done so in Tamil. ‘Mac 8’ is simply the translation of the book title in Malay.

Anyway, on 12 February, 2010, Arumugam’s application for the judicial review of the book ban was dismissed by the High Court. Now, the Court of Appeal would rule whether to uphold or overturn the High Court’s decision. The case was scheduled to be heard at 9.00 am in the morning along with two other cases. I arrived at 9.30 am and was relieved that the Court was hearing the first case. Hearing for the ‘Mac 8’ case started about 11.00 am, and I was again relieved that it was not the last case heard as otherwise, I would have to spend my entire holiday in Court.

For the uninformed, this case was part of the MCCHR’s (Malaysian Centre for Constitutionalism and Human Rights) effort in strategic litigation. What is strategic litigation? Everyone knows litigation means taking cases to Court. But how about strategic litigation? Based on my understanding after attending workshops about strategic litigation by the MCCHR for the media (by the way, I am not a lawyer or member of the media; I just attended these things out of curiosity), strategic litigation means initiating change in society by taking relevant cases to Court. A recent example would be the Bersih 2.0 case challenging the Home Minister’s decision that Bersih 2.0 is an illegal organisation. Another example is the UKM 4 case challenging the constitutionality of Section 15(5)(a) of the Universities and University Colleges Act 1971 (UUCA).Those two cases are examples of strategic litigation.

In Malaysia, the socio-political climate of the country suggests that most of these sorts of litigations will not succeed. However, winning the case is only part of the picture. A strategic litigation (or rather, a series of strategic litigations) can still bring change in society even though those cases are not won in Court. This can happen due to public discussion and publicity generated by those cases. In the longer term, this will change the climate of society and, hopefully, a change of attitude that will bring substantial change in legislation as well. Of course, if the case succeeds, it is a bonus.

Big Brother trumps Small Fry | Source: http://bit.ly/U3bgKL

Back to the ‘Mac 8’ case. The lawyers of the MCCHR centred their arguments on two grounds: 1) Illegality – The order to ban the book was signed by the Deputy Minister of Internal Security instead of the Minister of Internal Security. It was argued that only the Minister has the power to ban the book and 2) Irrationality – The Deputy Minister did not read the book before he banned it. He admitted this during the hearing in the High Court. Granted, it was in Tamil. But the Minister could still order a translation of the book. Instead, the first request for translation took place after the case was brought to Court. It was his subordinates that evaluated the book and decided that it needed to be banned.

In case anyone is not familiar with the Ministry of Internal Security, the now-defunct ministry was part of the Ministry of Home Affairs. After the 2004 election, Tun Abdullah (then Prime Minister) created the Ministry of Internal Security. Tun Abdullah himself assumed the portfolio on top of his other roles as Prime Minister and First Finance Minister. After the election in 2008, the ministry was re-absorbed into the Ministry of Home Affairs. With so many portfolios in his hand, it is understandable that the Minister delegated some of his duties to his deputy. However, the main question here was whether the Deputy Minister of Internal Security, Datuk Foo Ah Kiow, had the power to ban the book on behalf of the Minister. The lawyers argued passionately that the Deputy Minister of Internal Security acted beyond his power by signing the order to ban ‘Mac 8’. The wording of the law also clearly required that the Minister be personally satisfied that the book was prejudicial to public order, or likely to be prejudicial to public order, instead of relying on his officials.

Up until this point, some of you readers may be asking why the lawyers did not challenge the Ministry’s finding that the book was a threat to public order, but relied instead on the technicality of the ban order. If the entire point of the argument is that the ban order did not follow the required procedure, it wouldn’t matter if the judges accept the argument and lift the ban, right? Because the Ministry could later re-ban the book by ‘getting it right’?

I put this question to Edmund Bon, one of the lawyers on the case, during lunch break. He explained that it was difficult to challenge the Minister’s discretionary power under the Printing Presses and Publications Act 1984 (PPPA) except to say that the test applied was wrong in that the Minister did not show evidence that there were actual acts of violence or imminent public security threats. As the judges would most probably defer to the Minister that the book was a threat to public order (though the lawyers think not), going for technicalities was the next best option. He told me he was not expecting to win the case, and if they did, it would be a bonus. I already knew from the workshops that most of the strategic litigation cases would not be won. But hearing this from a lawyer just before the judges delivered their judgement made my heart sink a little bit.

The hearing resumed after the lunch break. As predicted, the judges decided to uphold the High Court’s judgement. I am saddened by the judgement because my holiday was not sacrificed for a historic and landmark Court decision but another typical, failed lawsuit against the government. Okay, that is a joke. I actually really appreciate having had the chance to watch for myself, how these strategic litigation cases work in reality. Our country is in an era of change, and we need to be part of the momentum. I take my hat off to those LoyarBurokkers who are willing to fight to bring change in society. I hope their efforts will not be in vain. In this case, however, it was just another day, another doomed strategic litigation.

(Featured image accompanying article on main page courtesy of Michael Thirnbeck, source: http://bit.ly/U3e8Y7)

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Rayner Yeo is a busybody that likes to annoy other people with his wicked sense of humour. He can be found at facebook.com/rayner.yeo and Twitter @RaynerYeo

Posted on 17 October 2012. You can follow any responses to this entry through the RSS 2.0.

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2 Responses to Another Day, Another Doomed Strategic Litigation

  1. Peter Noorlander

    As you say, by taking these cases, bit by bit, little by little, you're raising the profile of the issues and pushing the legal envelope. Run it in tandem with other forms of advocacy, international pressure, and one day – in the not too distant future, I predict – judges will agree with your arguments. This is how it has worked in many other countries and that's how it will go here.

    Peter Noorlander – http://www.mediadefence.org

  2. Pepper Lim

    Nice!