Pro bono, Public Interest, Strategic Litigation
You may have encountered those words above at some point or other. Or if you haven’t, well, you are going to learn something new today. This essay ruminates in unscholarly fashion what these words mean and how they relate to each other in the Malaysian context. The first word is litigation. That means a court case. Someone has sued another in court. Now they are litigating their dispute. There are legal proceedings going on. Pro bono simply means without charge. So pro bono litigation means litigation that is done without having to pay legal fees. This is a lawyer’s client’s fantasy. But such fantasies are rightly reserved for only for the most deserving of causes and people. Just because one side is having it pro bono does not mean the other side is. In fact, that is usually the case. If both sides are doing it pro bono, we had better take a closer look at the dispute in question! This is because pro bono cases often are criminal cases or cases where the plaintiffs are going up against the might of government authorities or people or companies with impressive financial and political clout; and the plaintiffs have none of that. Pro bono would be appropriate for people such as Indira Gandhi. She was a kindergarten teacher with barely enough for family. Her former husband converted to Islam and kidnapped their youngest child from her. He purported to convert three of his children’s religion from Hindu to Islam so he could enforce a Syariah custody court order he obtained against her. There was no way Indira Gandhi could navigate the complex legal issues on her own for her claims. Hers was a deserving case because of her impecuniosity and the injustice of her situation. Public interest litigation are court cases that are of interest to the public. It may be due to the facts or personalities of the case or the influence the decision would have an impact on society, business, or communities. An example of the former is the criminal case of Dato’ Seri Najib Razak. There are no novel legal issues about the case. But it is of public interest because he was the former prime minister of our country and charged with criminal breaches of trust. An example of the latter would be the recent Federal Court decision of Crystal Crown Hotel & Resort Sdn Bhd v National Union of Hotel, Bar & Restaurant Workers Peninsular Malaysia [2021] 4 CLJ 775 which decided firstly, hotels cannot pay their staff below the minimum wage. Secondly, hotels cannot use the service charge collected to pay the staffs’ wages, because the service charges were already due to the employees anyway. In doing so, the Federal Court made employment terms fairer for hotel employees who were being imposed with unfair terms by their employers. The mainstream, alternate media, and even social media have an influence in determining what is of interest to the public. Whatever goes ‘viral’ also could be said to be of interest to the public; after all, that’s why it circulated so widely. An example of this was when Datuk Tan and his bodyguard were prosecuted for threatening a couple when they asked him to lower his voice in a restaurant. If it were not for the intense public interest in attracted, it is likely no action would have been taken. Sometimes, a case can be said to be of public interest even though the public does not know about it or cannot appreciate because it has no relevance to their daily life. Such cases are thought so because the decision has a benefit to the wider public or a certain segment of society and its benefits are not confined to the litigant. An example of this is the Federal Court decision of Alma Nudo Atenza v PP [2019] 5 CLJ 780. It decided imposing double presumption for drug offences was unconstitutional. That was an incredibly important decision for the long term because if double presumptions were lawful, such a mechanism could potentially be imposed for all criminal offences. In such a situation, all that would be required to prove a case would be an arrest and minimal proof. The primary thing about public interest cases is that it is not necessarily determined by the legal issues engaged, but often significantly influenced by publicity, personalities (be it litigant or the lawyers or both), and other media or social avenues. Strategic litigation is about effecting change. That change may be in law, in mindset, in culture, a situation, and so on. An example of strategic litigation effecting change directly through the courts is the Federal Court decision of Indira Gandhi Mutho v Pengarah Jabatan Agama Islam Perak & Ors And Other Appeals [2018] 3 CLJ 145. Here it was finally resolved that both parents had to consent to their child changing his or her religion. In coming to that point the court would have to consider fresh arguments, revisiting earlier decisions, deliberating over per incuriam (incorrect) decisions, developing better raison d’etre (reasoning) and the like. That was one instance of success. But just because one loses in court does not mean the strategic litigation is unsuccessful. An example of losing the case and yet ultimately achieving change is the case of the transgender Muhammad Juzaili. In her case, she challenged the constitutional validity of section 66 of the Syariah Criminal (Negeri Sembilan) Enactment 1992 (“SCNSE92”). That made it a Syariah criminal offence for a man to dress as a woman. Other States had a similar provision but with an added requirement that the offender behaved immorally in a public area. That added requirement made the offence in the other States comply with the Federal Constitution. We lost in the High Court but won on appeal in the Court of Appeal. We lost in the Federal Court. I can only describe the latter decision as a profound lapse in the understanding and application of trite constitutional law: see State
