The mobilization of Indians in Malaysia: the role of the law in ethno-cultural minority mobilization

This thesis investigates the role of the law and rights in the mobilization of Indians in Malaysia between 1890 and 2013 using a theoretical framework based on insights from sociolegal and legal mobilization theories that links three crucial elements in the legal mobilization of ethno-cultural minority groups, namely the formation of a collective as well as a mobilizing identity of the minority group, the construction of group grievances arising from exclusion of the minority group from certain legal rights, and the use of political rights in a mobilization strategy that includes civil disobedience and strategic litigation. The hypothesis that law and rights matters in minority mobilization in an illiberal polity was explored by comparing two instances of Indian mobilization in Malaysia – the 1941 Klang Strikes in colonial Malaya and the 2007 HINDRAF rally in contemporary post-colonial Malaysia – as well as by comparing these cases to a long period between 1957 and 1989 when no Indian mobilization occurred in Malaysia despite the accumulation of Indian grievances. By comparing these three distinct phases, the thesis finds that the existence of Indian grievances alone is not sufficient to propel mobilization. The thesis shows that type of grievances played a crucial role in mobilizing the Indians. While the Indian Tamil plantation labourers had suffered persistent and severe socio-economic grievances since colonial times, these grievances, were not sufficient to propel mass Indian mobilization. However, the growth of ethno-religious grievances from the mid-2000s onwards deeply affected the Indian Hindu community across classes and accelerated the collective mobilization of the Indian community as a whole despite its internal fragmentation, culminating in the 2007 HINDRAF rally. A second factor important in 2000s mobilization is the role of the mobilizers, especially the cooperation between activist lawyers and Indian activists who played a part in organizing, first a civil disobedience strategy by framing grievances as political rights and second through strategic litigation by using the law as a site of contention in order to claim legal rights. The importance of mobilizers was also seen during the colonial phase where activist lawyers and journalists mobilized the Indian Tamil plantation labour, leading to the 1941 Klang Strikes. However, despite the presence of cross-class ethno-religious grievances in the 1970s and 1980s, the Indians did not mobilize due to the constraints placed on Indian activists by the illiberal political climate and repressive laws in Malaysia during this period. Although activist lawyers used the courts as a site of resistance against the discriminatory practices of the Malaysian state, strategic litigation was more valuable as part of the civil disobedience strategies of these Indian activists in garnering international publicity and harnessing Indian fervour. While legal rights were not entertained by the Malaysian judiciary, political rights (especially the right to equality) and moral rights (the principles of human rights law) were successfully utilized to frame grievances and mobilize the community when rights framing sufficiently encompassed the ethno-cultural as well as the legal dimension of the grievances experienced by the Indians as a whole and revealed Indians as a non-rights bearing group.