The role of public interest litigation in the quest for democracy in Malaysia
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.
Dr. R. Rueban Balasubramaniam, New Mandala
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.
