Last week, I participated by video as a speaker for a few sessions relating to strategic litigation for lawyers and activists in Sarawak. In the closing session, after we opened the floor to questions, I was asked:
“How do you stay motivated to keep going on with the cases?”
This is a question all of us that do public interest litigation or strategic litigation will wrestle with at some point. As much as we savour the work – the fact-gathering, the drafting, the crafting of the arguments, the submission in court – that quality does not detract from the fact that it is difficult, challenging and stressful work. Often, I feel as if our abilities, energy and emotions are taxed far greater for our pro bono strategic litigation work than they are for our paid commercial or corporate work.
It is not hard to understand why this is so. The strategic litigation work my colleagues and I do have to do with our client’s fundamental or personal rights, which are denied to them. There is much effort required because we are trying to change the status quo. Huge amounts of effort inevitably go into that. What is more, an infringement of those rights is not just a legal matter, it is a deeply personal matter that goes to one’s identity and sense of self.
For example, in my cases that relate to freedom of thought, conscience and religion, human beings are denied the ability to profess and practice their faith as they wish to simply because of political agendas and bureaucratic processes. This happens even though the law clearly prohibits such denials. This is a traumatic personal experience and highly emotive one for the person being denied the right to profess their true beliefs. It is a negation of their authenticity and a demand to be something they are not – a fraud. These considerations are absent in a monetary debt claim.
Aside from the nature of the work, the other thing about strategic interest or public interest litigation that brought us down was the constant losses. When we started, we lost often. Heck, we lost all the time. Whether it was the main suit or an application, we lost. Whether it was seriously opposed or not, as most often was the case, we lost. Crafted our argument out of trite law? We lost. Unassailable facts? We lost. Even when we had facts and the law lined up for us, we lost. If there was one lottery ticket issued for the lottery, and we owned it, we would still lose.
Losing like that takes its toll. It is disorienting, depressing and demotivating.
It is disorienting because it is not as if we are stupid or uneducated. I would like to think my friends and me that are involved in strategic and public interest litigation are reasonably intelligent, learned, nuanced, sophisticated and skilled lawyers. We are not in the habit of putting forward moonshot arguments. We take great pains to ensure our arguments are closely reasoned and strongly supported by sound authority and credible facts. And yet, we lose. We lose to vastly inferior, insensible arguments, or to reasoning that looks to get away with rather than resolve.
Those were the bad old days. We did not lose because the law or the facts were not with us. We lost because our client wasn’t supposed to win. It is not as if there was any personal animosity against our client. Our client could not be allowed to win because of what it meant to the status quo. The status quo does not like change even if it is for the better. Change upsets present vested interests. Change means no longer business as usual. Change means the dismantling of present vested interests.
This is why the status quo persists. Many are invested in its perpetuation. This is why motivation is an important thing to have in doing strategic litigation work.
This is how I would answer the question today:
“I trace my motivation from Edmund Burke’s famous quote, The only thing necessary for the triumph of evil is for good men to do nothing. Now, I do not believe myself a good man. I have no illusions of myself as one. I think of myself as a flawed, incomplete, and traumatized man. But one who will not let that get in the way of preventing evil from triumphing. I cannot do everything. In fact, I don’t think I can do very much. There are people far more powerful, richer, more influential and connected than me. But the little I can do, I will do. And the little I can do, I will do my best by it. It’s not even about me winning. I have lost and will lose some more. It’s about not letting evil win.”
“I stay motivated because this is not about the fight for my rights or your rights. It is the battle to make this place better for those that come after us. My children, your children, our children, their children. Our planet. It must be better for them. I wish and want for them the freedoms we did not have, the good we could not savour, the autonomy we lacked, and the beauty that comes from being good to one another that we lost.”
“And most important for staying motivated and sane through it all is to find and be in the company of the like-minded and like-hearted. These are very important people to have on our journey to keep doing the things we do. They counsel us, they nourish us and they inspire us. I know if it weren’t for their generous and warm company, counsel and spirit, I would be the poorer for it and would not perhaps have lasted as long as I have. I am grateful for them.”