Public interest litigation, as a unique experience, gives voice to the voiceless, the weak and the marginalised.
– Kapil Sibal, Senior Indian lawyer
Social media is inundated with opinions concerning the fibs, faults, fads and foibles of the Madani government not limited to irreverent footwear, Palestinian refugees, halal certifications, involvement in Taliban education, Royal pardons, DNAA, and the appointment of an allegedly tainted person as a “state” governor.
“Law, as I conceive it, is social auditor and this audit function can be put into action when someone with real public interest ignites the jurisdiction,” said the great Indian jurist Krishna Iyer, speaking for the Indian Supreme Court in Fertilizer Corporation Kamgar Union v Union of India AIR 1981 SC 344.
That someone could be anybody, not necessarily a society, corporation, NGO, a partnership, or religious organisation whose rights are about to be affected because of an imminent danger of government overreach.
Public interest litigation (PIL) is the use of the law to address public grievances, advance human rights and equality, and promote good governance. And this is where the Malaysian Bar is statutorily bound to take up the cudgels on behalf of a grieving party.
Section 42(1)(a) of the Legal Profession Act 1976 (Act 166) commands the Malaysian Bar is to “uphold the cause of justice without regard to its own interests or that of its members, uninfluenced by fear or favour”. A noble calling that does not call for martyrdom.
Between 1980 and 2003, reportedly, there were thirteen Malaysian PIL adjudicated cases. All were unsuccessful owing to the restrictive stranglehold applied to ‘standing to sue’ (locus standi), as ruled in Government of Malaysia v. Lim Kit Siang [1988] 2 MLJ 12.
The years 1980-2003 were turbulent years for a judiciary targeted by an irascible Executive who believed in “putting the judiciary in its place”. Then 1988 brought the fiery lava out of the Executive and legislative volcano when the Lord President and two Supreme Court judges were unceremoniously sacked.
The scars are still visible. Fortuitously, standing to sue has undergone reconstruction, if not rehabilitation. It was brilliantly articulated by a full coram of nine Justices of the Federal Court in 2022 in the Nik Elin Zurina case.
Chief Justice Tengku Maimun Tuan Mat ruled on the applicability of a new test for locus standi that cremated the restrictive approach adopted in Lim Kit Siang in 1988. Quoting Taman Rimba as the new norm for a “broad and liberal test”, it should open doors for PIL.
Active and meaningful PIL is evidence and proof of a matured society willing to fearlessly participate in shaping government policies. It is, admittedly, the patriotic duty of every citizen to contribute in this endeavour.
Many constitutional misinterpretations and misapplications await judicial remedies. David Wong Dak Wah J (as he then was), corrected, instructed, and directed in Robert Linggi v Government of Malaysia [2011] 7 CLJ 373, that “when there is a challenge concerning any dismantling of the supreme law of the country, litigation should be encouraged”.
Robert Linggi therefore stands for the proposition that where there is a right, there shall be a remedy (ubi jus ibi remedium). Unfortunately, a favourable judgment against the government meets the ogre of zero enforcement.
Successful PIL despite the outrageous lack of enforcement can be egg on the face of the Madani government. The public needs the fillip by the Malaysian Bar if it’s ripe and ready, willing and able to live up to section 42(1)(a) of the LPA 1976.
The other problem Malaysians face is the malaise of “elective dictatorship” as expounded by Lord Hailsham when he lamented that Parliament is answerable to Downing Street. There was a time, 1981-2003 to be specific, when our judiciary was required to pay homage to the Executive.
Some proactive thync different intellectuals believe that the entire Bar and Bench should have resigned when the 1988 judicial putsch was in full swing. As we approach 2025, it is fervently hoped that we are not resigned to hopelessness.
Social media seldom encourages and motivates PIL. The Malaysian Bar must make necessary moves and measures to rid the Legal Profession Act 1976 of section 112(1) which unconscionably says that “no-win-no-fees” is prohibited. It insults section 42(1)(a) to the core.
Admittedly, the judiciary is the “least dangerous branch of government as it carries no purse nor wields any sword”. That hammered the final nail into the coffin of the utter dependence of the judiciary upon the other two organs of state. The doctrine of the separation of powers should not be relegated, or regulated, as a distant whisper, if not a whimper.
Another question is whether our Legal Aid will welcome and encourage PIL. Surely the voices of the weak, poor and marginalised need protection and preservation in the supreme law of Malaysia.
Recent reports say eight Malaysians have filed a RM60 million class action lawsuit against PMX, the World Health Organisation, and 23 others over alleged health complications and deaths caused by Covid-19 vaccination.
That class action lawsuit has brought and wrought a huge sigh of relief to potential PIL advocates. Prayerfully, the apex court will firmly speak for the voiceless, weak, marginalised, and ill-informed public.
It seems PIL is the only effective pill to force down Madani government’s throat. PIL has the potential to entrench, energise and embolden the judiciary’s independence once again.
The views expressed here are those of the columnist and do not necessarily represent the views of Sarawak Tribune.
