Strategic Litigation and Human Rights

I first came across the term strategic litigation when my boss forwarded us an event registration link via email. He wrote, sign up and the firm will pay.

I checked the link. There, it stated that the training is fully sponsored by the organizer, the Malaysian Centre for Constitutionalism and Human Rights (“MCCHR”). So, I had no idea what my boss meant when he said that the firm will pay. (But I later realized that he IS part of MCCHR, so maybe that's what he meant.)


Anyway, I went ahead and signed up. I had no expectation or knowledge about what will happen. In the beginning, I even thought that strategic litigation meant selective prosecution. I later found out how wrong I was.

Among others, the following was what I had learned in the training that spanned over 4 days:

  1. What strategic litigation is;
  2. What internet freedom is and how it relates to the freedom of speech and expression under Article 10 of our Federal Constitution;
  3. The relevance of international human rights standards in the Malaysian context;
  4. The restrictions to freedom of speech and expression under Article 10 of the Constitution and the common legislations regarding this;
  5. How strategic litigation can be used to advance internet freedom in Malaysia; and
  6. How to effectively make use of strategic litigation.

So, what exactly strategic litigation is?

Briefly, from my limited understanding, strategic litigation can be explained through the diagram below:


It is a combination of in-court advocacy and out-of-court advocacy, with the main purpose to bring about changes in the law by legislating new laws.

As legal practitioners, we are already used to utilizing in-court advocacy in order to bring about any changes in the existing state of laws. If a law goes against the constitution, we can challenge it in court and strike it down. Meanwhile, the public, in particular, activists and NGOs will usually advocate for changes through public advocacy. For example, Bersih through its mass protest to demand clean and fair elections.

However, changes can be more practical and effective if we combined these components together, which is the whole idea of strategic litigation.

Further, strategic litigation is closely related to human rights as it is the most useful tool or method in ensuring that violations of human rights will stop and to guarantee better protection of human rights in that society.

In Malaysia, strategic litigation cases have been on the rise. For example, the lawsuits/campaigns involving UNDI18 and Family Frontiers Malaysia. The former relates to the right to vote for youths while the latter is about the equal citizenship right for Malaysian females giving birth to children outside of Malaysia. In these instances, parties not only stop at fighting for their rights in the courtrooms, but they also utilized out-of-court methods such as campaigning for their causes on various platforms of social media, demonstrating, organizing talks and films to spread the messages. Through their efforts, the causes of their fights were also made aware to more people in society. Ultimately, they will be the reason for better protection of our human rights.

Now, how does this relate to internet freedom?

Well, as mentioned, strategic litigation is closely related to human rights. This brings us to the discussion of our rights offline and online. Are there any differences? What are they, what are the level of protection and restrictions and etc?

In the digital space, the main human rights issue concerns freedom of expression and opinion. Flowing from this big umbrella of freedom of expression and opinion are the right to impart, to seek and receive information, and to access the information. Of course, there are others like the right to privacy.

In this aspect, I am sure that Malaysian are already familiar with the many restrictions imposed by our laws on our freedom of expression and opinion. We have to constantly be careful in expressing our opinions. In a way, all of us are potential criminals. Whatever we expressed online will always be subjected to laws such as the Sedition Act 1948 and the Communications and Multimedia Act 1998. Political satire and any dissenting opinions towards the authorities are especially not acceptable. But, with the clear selective prosecution being practiced currently, how far can the authorities go to restrict us in exercising our inherent human rights? Is it right to silence dissenting opinions? And if it is not, what are the problems, and what changes do we want?

Anyway, that was among the points I had gotten from the training. I was glad to be receiving the information, exchanging ideas with fellow participants, and understand more about these matters. After learning about this, I do hope that I will be part of the people who will be able to contribute to any strategic litigation matters.

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