Edmund Burke: Conservative at heart


May 22, 2015

Phnom Penh

Edmund Burke: Conservative at Heart

http://www.prospectmagazine.co.uk/opinions/a-c-grayling-edmund-burke-jesse-norman

Commentary by AC Grayling

AC GraylingConservatives in the United States began a post-mortem on their defeat with predictable calls for a return to the first principles and basic tenets of their political faith. High on the rhetorical list was a demand to revisit (or as some pointed out, to visit) the ideas of the man whom some call the father, others the patron saint, of conservatism: Edmund Burke.

What makes this 18th century Irishman, a Whig sympathetic to American independence, the patron saint of conservatism? Was he a political conservative before the French Revolution and its excesses? How does one square his tender sympathy for the Queen of France with his support for rebellion against the King of England?

Some of the answers to these questions are found in Edmund Burke: Philosopher, Politician, Prophet (William Collins, £20), a lively new biography by the Conservative MP Jesse Norman, Policy Advisor to David Cameron. The book is not a comprehensive academic work, but rather an affectionate account of the life and thought of one of Norman’s heroes. “Edmund Burke is both the greatest and most underrated political thinker of the past 300 years,” says Norman in the book’s opening sentence, setting the tone for what follows. Norman seeks to defend Burke from the familiar charges that he is inconsistent, irrelevant and reactionary. His Burke is the man who “forged modern politics” by establishing the principles of the party system and setting out the case for representative democracy. He highlights Burke’s arguments in favour of religious tolerance, his criticisms of liberal individualism, and his hatred of the injustices perpetrated by the British in America, Ireland and India.

In his bid to claim this 18th century figure as a light for our own century, Norman sometimes overstretches, as when he describes Burke as “the earliest postmodern political thinker.” But Norman’s biography is an engaging attempt to show how the intellectual debates of the 18th century can be deployed in today’s politics.

Burke was a conservative in his bones, and this means that it was not the sanguinary aspects of the revolution in France that made him one. Both of the great revolutions that occurred in his time prompted conservative responses in him, and similar ones. To see how, consider his outlook.

For Burke, the great opposition in political attitudes is that between respect for tradition and Burke by J Normanespousal of metaphysical abstractions. He was in favour of the first and emphatically opposed to the second. His thinking went as follows. Revolutionaries are motivated by the thought that reason can change and improve both people and institutions. But the problems generated by abstracting and idealising uses of reason are such that it would be better for people to rely on tradition, in which is deposited the accumulated experience of the past—“the general bank and capital of nations and of ages” as Burke put it.

Reason leads people to postulate principles of morality and politics which, because they are a priori idealisations, are disconnected from historical realities and their particularities. Principles only have their life and meaning in context, in relation to each other and the facts on the ground—and any attempt to thwart the course of history and its traditions by means of fancy new notions is “sophistical” and “delusive” and will lead to disaster.

On these grounds Burke dismissed the idea of equality between people, urged the importance of belief in a god, argued that the meaning to be found in life comes from such belief together with tradition and folklore, and committed himself to the somewhat Jungian idea of a collective mind, which is marinated in the old wisdom, beliefs and ways of living that traditions bring down to us.

He was, therefore, a Counter-Enlightenment figure, and in invoking the geist that informs tradition he was a political Romantic before the letter. The Enlightenment saw reason—in the form of scientific method applied to society and morality—as the liberator of humanity from the hegemonies alike of crowns and churches, those profiteers from beliefs about how sacrosanct we must think tradition to be. This is why Burke rejected that core Enlightenment thought. For him the nation is to be modelled on the family: social relations are or should be as close as blood relationships, and the forms and principles of political life should be like the “little platoons” of family, church and community, which pass down the traditions which alone, he claimed, give us meaning. One therefore sees why Burke attracts not only moderate British Conservatives such as Jesse Norman, but also the modern American right: God, family, tradition, and—in line with Burke’s “little platoon” notion (could it be stretched to cover gun possession?)—“little government,” too.

Too many people today know so little history and have such little awareness of the influence of ideas on its realities that they fail to gather the full implications of invoking names and theories given heroic status by the passage of time. Burke opposed the tendencies of political thought that gave us democracy, regimes of human rights, collective provision of such fundamental social goods as education and healthcare, which together help to promote social justice and to protect the weak against the strong; that is the respect in which he was a conservative.

Islam needs reform says French Muslim Philosopher Abdennour Bidar


January 12, 2015

In Open Letter To Muslim World, French Muslim Philosopher Says Islam Has Given Birth To Monsters, Needs Reform

http://www.memri.org/report/en/0/0/0/0/0/0/8206.htm

In an essay published October 3, 2014 in the French newspaper Marianne, French Muslim Philosopher Abdennour Bidar, author of  Self Islam: A Personal History of Islam (Seuil, 2006); Islam without Submission: Muslim Existentialism (Albin Michel, 2008), and A History of Humanism in the West (Armand Colin, 2014), wrote that Muslims cannot make do with denouncing and repudiating terrorist barbarism, but must acknowledge that its roots lie within Muslim society, and especially within the Islam that is prevalent in the Arab world today.

He points out that Islam, like all religions, has throughout its history been a source of much good, wisdom and enlightenment, but that today’s mainstream Islam rejects the freedom and flexibility that are advocated by the Koran and instead promotes rigidity and regression that ultimately give rise to terrorism. The Muslim world, he concludes, must therefore reform itself, and especially its education systems, based on principles of freedom of religion and thought, equality, and respect for the other.

abdennour-bidarFrench Muslim Philosopher

The following are translated excerpts from his essay:

“I See That You Are Losing Yourself And Your Dignity, And Wasting Your Time, In Your Refusal To Recognize That This Monster Is Born Of You”

“Dear Muslim world: I am one of your estranged sons, who views you from without and from afar – from France, where so many of your children live today. I look at you with the harsh eyes of a philosopher, nourished from infancy on tasawwuf (Sufism) and Western thought. I therefore look at you from my position of barzakh, from an isthmus between the two seas of the East and the West.

“And what do I see? What do I see better than others, precisely because I see you from afar, from a distance? I see you in a state of misery and suffering that saddens me to no end, but which makes my philosopher’s judgment even harsher, because I see you in the process of birthing a monster that presumes to call itself the Islamic State, and which some prefer to call by a demon’s name – Da’esh. But worst of all is that I see that you are losing yourself and your dignity, and wasting your time, in your refusal to recognize that this monster is born of you: of your irresoluteness, your contradictions, your being torn between past and present, and your perpetual inability to find your place in human civilization.

“What do you [Muslims] say when faced with this monster? You shout, ‘That’s not me!’ ‘That’s not Islam!’ You reject [the possibility] that this monster’s crimes are committed in your name. You rebel against the monster’s hijacking of your identity, and of course you are right to do so. It is essential that you proclaim to the world, loud and clear, that Islam condemns barbarity. But this is absolutely not enough! For you are taking refuge in your self-defense reflex, without realizing it, and above all without undertaking any self-criticism. You become indignant and are satisfied with that – but you are missing a historical opportunity to question yourself. Instead of taking responsibility for yourself, you accuse others, [saying]: ‘You Westerners, and all you enemies of Islam, stop associating us with this monster! Terrorism is not Islam! The true Islam, the good Islam, doesn’t mean war, it means peace!'”

“The Root Of This Evil That Today Steals Your Face Is Within Yourself; The Monster Emerged From Within You”

Oh my dear Muslim world, I hear the cry of rebellion rising within you, and I understand it. Yes, you are right: Like every one of the great sacred inspirations in the world, Islam has, throughout its history, created beauty, justice, meaning and good, and it has [been a source of] powerful enlightenment for humans on the mysterious path of existence… Here in the West, I fight, in all my books, [to make sure that] this wisdom of Islam and of all religions is not forgotten or despised. But because of my distance [from the Muslim world], I can see what you cannot… and this inspires me to ask: Why has this monster stolen your face? Why has this despicable monster chosen your face and not another? The truth is that behind this monster hides a huge problem, one you do not seem ready to confront. Yet in the end you will have to find the courage [to do so]...

“Where do the crimes of this so-called ‘Islamic State’ come from? I’ll tell you, my friend, and it will not make you happy, but it is my duty as a philosopher [to tell you]. The root of this evil that today steals your face is within yourself; the monster emerged from within you. And other monsters, some even worse, will emerge as well, as long as you refuse to acknowledge your sickness and to finally tackle the root of this evil!

“Even Western intellectuals have difficulty seeing this. For the most part they have forgotten the power of religion – for good and for evil, over life and over death – to the extent that they tell me, ‘No, the problem of the Muslim world is not Islam, not the religion, but rather politics, history, economics, etc.’ They completely forget that religion may be the core of the reactor of human civilization, and that tomorrow the future of humanity will depend not only on a resolution to the financial crisis, but also, and much more essentially, on a resolution to the unprecedented spiritual crisis that is affecting all of mankind.”

“I See In You, Oh Muslim World, Great Forces Ready To Rise Up And Contribute To This Global Effort To Find A Spiritual Life For The 21st Century”

“Will we be able to come together, across the world, and face this fundamental challenge? The spiritual nature of man abhors a vacuum, and if it finds nothing new with which to fill the vacuum, tomorrow it will fill it with religions that are less and less adapted to the present, and which, like Islam today, will [also] begin producing monsters.

“I see in you, oh Muslim world, great forces ready to rise up and contribute to this global effort to find a spiritual life for the 21st century. Despite the severity of your sickness, you have within you a great multitude of men and women who are willing to reform Islam, to reinvent its genius beyond its historical forms, and to be part of the total renewal of the relationship that mankind once had with its gods. It is to all those who dream together of a spiritual revolution, both Muslims and non-Muslims, that I have addressed my books, and to whom I offer, with my philosopher’s words, confidence in that which their hope glimpses.”

“Forward-Looking Muslims Understand All Too Well That Al-Qaeda, Jabhat Al-Nusra, AQIM, And The Islamic State Are Only The Most Visible Symptoms Of An Immense Diseased Body”

“But these Muslim men and women who look to the future are not yet sufficiently numerous, nor is their word sufficiently powerful. All of them, whose clarity and courage I welcome, have plainly seen that it is the Muslim world’s general state of profound sickness that explains the birth of terrorist monsters with names like Al-Qaeda, Jabhat Al-Nusra, AQIM, and Islamic State. They understand all too well that these are only the most visible symptoms of an immense diseased body, whose chronic maladies include the inability to establish sustainable democracies that recognize freedom of conscience vis-à-vis religious dogmas as a moral and political right; chronic difficulties in improving women’s status…;  the inability to sufficiently free political power from its control by religious authority; and the inability to promote respectful, tolerant and genuine recognition of religious pluralism and religious minorities.”

“Could All This Be The Fault Of The West? How Much Precious Time Will You Lose, Dear Muslim World, With This Stupid Accusation[?]”

“Could all this be the fault of the West? How much precious time will you lose, dear Muslim world, with this stupid accusation that you yourself no longer believe, and behind which you hide so that you can continue to lie to yourself?

“Particularly since the eighteenth century – it’s past time you acknowledged it – you have been unable to meet the challenge of the West. You have childishly and embarrassingly sought refuge in the past, with the obscurantist Wahhabism regression that continues to wreak havoc almost everywhere within your borders – the Wahhabism that you spread from your holy places in Saudi Arabia like a cancer originating from your very heart. In other ways, you emulated the worst [aspects] of the West – with nationalism and a modernism that caricatures modernity. I refer here especially to the technological development, so inconsistent with the religious archaism, that makes your fabulously wealthy Gulf ‘elite’ mere willing victims of the global disease – the worship of the god Money.

“What is admirable about you today, my friend? What do you still have that is worthy of the respect of the peoples and civilizations of the world? Where are your wise men? Have you still wisdom to offer the world? Where are your great men? Who is your Mandela, your Gandhi, your Aung San Suu Kyi? Where are your great thinkers whose books should be read worldwide, as they were when Arab or Persian mathematicians and philosophers were spoken of from India to Spain? You are actually so weakened behind [the mask of] self-confidence that you always display… You have no idea who you are or where you want to go, and it makes you as unhappy as you are aggressive… You persist in not listening to those who call on you to change by finally freeing yourself from the dominion that you have granted to religion over all [aspects of] life.

“You chose to define Islam as a moral, political, and social religion that must rule as a tyrant in the state as well as in civilian life, in the street and in the home, and in every man’s conscience. You chose to believe that Islam means ‘submission’ and to impose that belief – while the Koran itself declares that ‘there is no compulsion in religion’… You have made [the Koran’s] cry for freedom into the reign of coercion. How can a civilization so betray its own sacred text? I say that, in Islamic civilization, the time has come to institute this spiritual freedom – the most sublime and difficult of all [freedoms] – in place of all the laws invented by generations of theologians!”

“Numerous Voices That You Refuse To Hear Are Rising Today In The Ummah To Denounce This Authoritarian Religion That Cannot Be Questioned”

“Numerous voices that you refuse to hear are rising today in the ummah [Islamic nation] to denounce this authoritarian religion that cannot be questioned… Many believers have so internalized the culture of submission to tradition and to the ‘masters of religion’ (imams, muftis, sheikhs etc.) that they don’t understand us when we talk to them about spiritual freedom or personal choice vis-à-vis the ‘pillars’ of Islam. This is a ‘red line’ for them – so sacred to them that they dare not allow their own conscience to question it. And there are so many families in which this confusion between spirituality and servitude is implanted from such an early age, and in which spiritual education is so meager, that nothing concerning religion may be discussed.”

“But this [taboo] is clearly not imposed by the terrorism of some crazy fanatics… No, this problem is infinitely deeper. But who is willing to hear this? In the Muslim world, there is only silence regarding this matter; in the Western media, they listen only to all those terrorism experts who increase the general myopia day by day. Do not delude yourself, my friend, by pretending that by eliminating Islamist terrorism we will settle all of Islam’s problems. Because what I have described here – a tyrannical, dogmatic, literalist, formalistic, macho, conservative, and regressive religion – is too often the mainstream Islam, the everyday Islam, which suffers and causes suffering to too many consciences, the irrelevant Islam of the past, the Islam that is distorted by all those who manipulate it politically, the Islam that always ends up strangling the various Arab Springs and the voice of the young people who are demanding something else. So when will you finally bring about this revolution in society and conscience that will make spirituality rhyme with liberty?

“Of course, there are pockets of spiritual freedom in your great territory: families that hand down [to their children] an Islam of tolerance, personal choice and spiritual depth. There are places where Islam still gives the best of itself: a culture of sharing, honor, pursuit of knowledge, and spirituality in search of the sacred place where man and the ultimate reality called Allah meet. In the land of Islam, and in Muslim communities worldwide, there are strong and free consciences. But they are condemned to exercise their freedom without the recognition of real rights, facing the peril of community control or sometimes even of the religious police. Never has the right to say ‘I choose my Islam’ or ‘I have my own relationship with Islam’ been recognized by the ‘official Islam’ of the dignitaries, who fight to impose [the view] that ‘the doctrine of Islam is unique’ and that ‘obeying the pillars of Islam is the only right path…’

“This denial of the right to freedom of religion is one of the roots of the evil from which you suffer, oh my dear Muslim world; it is one of those dark wombs in which, in recent years, monsters have grown, and from whence they leap out at the frightened faces of the whole world. For this iron religion imposes excruciating violence upon all your societies; it too closely confines your daughters and your sons in the cage of good and evil, the lawful (halal) and the illicit (haram), chosen by none but imposed on all. It traps the wills, it conditions the mind, it prevents or hinders every personal life choice. In too many of your countries, you still tie together religion with violence – against women, against ‘bad’ believers, against Christians and other minorities, against thinkers and free spirits and against rebels – so that religion and violence ultimately blend within the most unbalanced and vulnerable of your own sons – in the monstrous form of jihad.”

“You Must Begin By Reforming Education… Based On Universal Principles”

“So, I beg of you, don’t pretend to be amazed that demons such as the so-called ‘Islamic State’ have taken your face. Monsters and demons steal only those faces that are already distorted by too much grimacing. And if you want to know how to refrain from bringing forth such monsters, I will tell you. It’s simple yet difficult: You must begin by reforming the education you give your children, in its entirety, in all your schools and all your places of knowledge and power. You must reform them according to [the following] universal principles – even if you are not the only one violating or disregarding [these principles]: freedom of conscience, democracy, tolerance, civil rights for [those of] all worldviews and beliefs, gender equality, women’s emancipation from all male guardianship, and a culture of reflection and criticism of the religion in universities, literature, and the media. You cannot go back, and you can do no less than this. For it is only by doing so that you will no longer give birth to such monsters. If you do not do so, you will soon be devastated by [these monsters’] destructive power.

“Dear Muslim world: I am but a philosopher, and as usual some will call the philosopher a heretic. Yet I seek only to let the light shine forth once again – indeed, the name that you have given me commands me to do so: Abdennour, Servant of the Light. If I did not believe in you, I would not have been so harsh in this essay. As we say in French, ‘He who loves well, punishes well’ – and those who today are not tough enough with you, who want to make you a victim, are doing you no favors. I believe in you. I believe in your contribution to build the future of our planet, to create a world that is both humane and spiritual!

Salaam, peace be upon you.”

 

 

Ha-Joon Chang: “Economics can never be a science in the way that physics is”.


December 28, 2014

Economics: The User’s Guide by Ha-Joon Chang

Ha-Joon Chang: “Economics can never be a science in the way that physics is”.

http://www.theguardian.com/books/2014/may/29/economics-the-users-guide-ha-joon-chang-review

Reviewed by Zoe Williams

User's Guide on EconomicsIt is a mark of where we are in our political discourse that even to say “neoclassical economics is not the only school” seems radical. This is where Ha-Joon Chang starts, in a book that is more sober and less effervescent than his bestselling 23 Things They Don’t Tell You About Capitalism, but is just as page-turning.

Since no single economic theory has beaten the others, it follows, Chang writes, that there is no objective truth on which every economist is agreed. Economics can never be a science in the way that physics is; it cannot reach a consensus on its fundamental questions, let alone what the answers are. This isn’t some extended hand wringing, a trashing of his discipline dressed up as a mea culpa. Chang isn’t looking for a formula: fundamentally, he argues, economics is politics. As such, we shouldn’t be thinking in terms of an ideal answer – the discussion should never close.

If there is a sense in which economics has “failed”, Chang argues, it is not because it should have “predicted” the crash and the disasters of the last seven years, nor for those Krugmanian reasons that range the state against the market, regulation against self-interest, cooperation against moral hazard. Rather, we are witnessing a failure of plurality. Our current landscape has been created by the acceptance of a few core principles – the individual as perfectly selfish, perfectly rational, able to create perfect markets by acting in her own interests; we have ignored plausible competing theories and have suffered for it.

But first, go back to Adam Smith’s pin, the implement from which he derived his theories of productivity, division of labour, transition costs (money wasted by workers moving from one place to another) – the fundamentals he explored in order to write An Inquiry into the Nature and Causes of the Wealth of Nations, published in 1776.

Since that time, production has changed, capital has changed, capitalists have changed, workers have changed, markets have changed; even Smith isn’t quite the efficiency-driven automaton his neoclassical disciples make him out to be: he worried about what would happen to the human spirit if you just sat making the same bit of a pin for your entire working life. But Chang doesn’t try to dragoon the fathers of the free market into arguments for its opposite. Rather, he opens with the point that all thinkers are of their time, and to apply their ideas “fruitfully, we require a good knowledge of the technological and institutional forces that characterise the particular markets, industries and countries that we are trying to analyse with the help of the theory”. This is the first body blow to economics as a science; never mind the competing theories, each theory has more complexity in its incipience than its followers will usually allow because they are following it as part of a wider political purpose.
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The chapter “How Have We Got Here?” rattles through centuries, Ha-Joon Changdividing the history of the developed world into different eras: the industrial revolution, High Noon (1870 to 1913), the Turmoil (1914 to 1945), the Golden Age (1945 to 1973), the Interregnum (1973 to 1979), then 1980 to the present. This is a fascinating, hurtling explanation of everything, taking in growth (painfully slow for the first few centuries); the conditions for successful free trade (and what free actually means – usually “raked towards the strongest”); the inevitability of some kind of first world war (since the growth of the period preceding it was based on imperialism, not production); and what the Great Depression did for thought and for policy.

What did high unemployment mean? What are the Bretton Woods institutions, and why were they founded? What are the successes of free trade and the free market, and what are their limitations? Why is liberal such a confusing word? What actually happened to the Soviet countries at the end of the regime? From the small hillock of the unpacked acronym to the mighty glacier of some accepted evil such as protectionism, from the things you didn’t realise you didn’t know to the things you would never be seen dead admitting you didn’t understand … Chang maps the territory legibly, but more: he turns it into terrain that you enjoy exploring.

I think his favourite section is “Let a Hundred Flowers Bloom” – to judge, anyway, from his endearing pick’n’mix approach, in which he describes the nine key schools of thought, then makes up fresh labels, which you can use, if you wish, to describe yourself. The author’s references from culture proliferate: perhaps the best example is when he tries to explain, later, that the market isn’t logical, any more than is any other human behaviour, and that the things we can trade on the open market (carbon usage) and can’t (people, organs) come from beliefs, impulses and feelings that are deeper than money. “So politics is creating, shaping and reshaping markets before any transaction can begin. It is like the ‘Deeper Magic’ that had existed before the dawn of time, which is known to Aslan (the lion) but not to the White Witch in The Lion, the Witch and the Wardrobe.” This is a man, I thought, who doesn’t let up with the economics even when he is reading a bedtime story. I bet he could come up with some pretty good stuff on tax havens from Harry Potter.

Those nine schools are Austrian, Behaviourist, Classical, Developmentalist, Institutionalist, Keynesian, Marxist, Neoclassical and Schumpeterian. At the end of the chapter, he devises a handy chart; if you like your economy divided into classes, and think its most important domain is production, yet at the same time think the world is complex and uncertain and economies change through technological innovation (rather than, say, exchange or consumption or production), then you are a Marxist/Keynesian/Schumpeterian (you may have Behaviourist properties: I know I do).

His ideal is that we recognise that none of these ideas is sacred, but nor is any worthless; hence the insistence that you can pick and choose from each, which may look like fun acronymising to the layperson but is, one would imagine, quite heretical, both to economists (many of whom are so used to accepting the neoclassical way) and to an academic framework that generally searches for a purity of ideas, rather than the muddy acceptance that everybody is right sometimes.

I found some ideas rang out immediately, and knocked around my head for days; one of the flaws in neoclassical economics is that they see everyone as a consumer (occasionally we might be a buyer or seller). Other schools put the onus on our identities as workers and put the spotlight on what an economy produces. The modern understanding of economies as giant shops and people as just wallets is so empty. As modish as it is to look for answers beyond numbers – in yoga or whatever – it is also a profound relief to find economic explanations and hypotheses that reject the human-as-consumer, too. Besides, you don’t hear often enough the fact that for many work is not merely a pain (or a disutility) but a cornerstone of their lives: not just skilled work, all work. Other ideas – why government transfers are counted out of GDP, what proportion of corporate profits is invested in research and development – will only leave their outline in my head, and I’ll be looking up the details for ever.

You could use it as a primer, a reference book, a brief history; it is all these things, but isn’t contained by them. It reflects the urgent generosity of a thinker whose depth of understanding is matched by a desire to see us all understand. Ha-Joon Chang is himself the walking disproof of the neoclassical individual, the perfectly rational, perfectly selfish consumer; his wealth is in his knowledge, perceptiveness, insight and vision. And he can’t give it away fast enough. It flies off him like the seeds of a dandelion.

Thinking Malaysian Muslims Needed, says Dr. A.Farouk Musa


October 26, 2014

Thinking Malaysian Muslims Needed, says IRF’s Dr. A. Farouk Musa

by Elizabeth Zachariah@www.themalaysianinsider.com

Seen as one of the brighter prospects in the Muslim world, Malaysia is now at the crossroads of either being a progressive Islamic country or regressing into a world where clerics rule without any question.

An unprecedented “touch-a-dog” day over the weekend seemed to have touched off more than a bark in a country of 30 million where three out of five are Muslims. Liberal and progressive Muslims voices are being drowned out even as Prime Minister Datuk Seri Najib Razak talks about moderation.

dr-ahmad-farouk-and-din-mericanOne such voice is the founder of the Islamic Renaissance Front (IRF) group, Dr Ahmad Farouk Musa, who was never perturbed with the criticism thrown at him nor the numerous police reports lodged against him.

But when he began receiving threatening emails from unknown people, the vocal activist considered throwing in the towel once and for all – mostly out of concern for his family – whom he guards closely, never discussing them with journalists.

His “sin” was his struggle to see a progressive Islam in Malaysia, but this did not go down well with certain quarters.

“They were trying to intimidate me, to stop me from expressing my views.This wasAzmi Sharom after I spoke at two forums on the hudud issue earlier this year. I began thinking it was not worth it as I was afraid for my family,” he told The Malaysian Insider. However, after confiding his fears in a friend – Law Professor Dr Azmi Sharom, who was recently charged with sedition– Dr Farouk changed his mind.

“He (Azmi) told me not to give up, to fight on. He said I was their voice and that I could not give up.”

Banning other voices

Months later, the academic cardiothoracic surgeon found himself at the receiving end of more brickbats and flak after inviting Indonesian Muslim scholar Dr Ulil Abshar Abdalla for a roundtable discussion in Kuala Lumpur.

Ulil-Abshar-AbdhalaUlil, well known for his liberal views, was barred from entering Malaysia after the Immigration Department put him on its blacklist, with the Home Minister claiming that the former would “mislead Muslims in the country if he is allowed to spread his brand of liberalism here”.

The Malaysian Islamic Development Department (JAKIM) also said forum should be stopped as it would contravene the teachings of the Shafie school of Islam and “threaten the faith of Muslims in Malaysia”.

Critics, including Dr Farouk, slammed Putrajaya over Ulil’s ban, saying the government was showing its “fundamentalist” stripes and insulting the intelligence of Malaysian Muslims.

However, last week, Ulil appeared to defy the ban on his teachings after he addressed an audience of about 100 people in Kuala Lumpur at the 3rd International Conference on Human Rights and Peace and Conflict in Southeast Asia, via Skype.

“That was a slap in the government’s face. In this age of technology, it is impossible for you to prevent ideas from being disseminated,” Dr Farouk said, adding that the idea of using Skype came from his friend, Azmi.

“Although I expected some resistance from the government over the forum, I did not expect that it would be to the extent of banning Ulil from entering Malaysia.”

This, the 51-year-old said, was Putrajaya’s way of stamping out the spread of progressive ideas on Islam to control the people, especially Muslims.

“They ban certain books written in Malay that were translated from English. Only the Malay books are banned. Why? Banning them from reading such literature which promotes progressive ideas is because they want to control how people should think.

“Nowadays when you listen or read the Friday sermons by JAKIM (Department of Islamic Development Malaysia), it seems as if they are trying to vilify certain terminologies, such as liberalism, democracy and secularism. According to them, these are dirty words and if a Muslim speaks about it, they are bad.

“If liberal means you are fighting against injustice, inequality, then I am a liberal,” he said, quoting a Tunisian activist.

“It is not to detach yourself from religion or religious values but to ensure that you will fight for the oppressed, the minorities and justice.”

Islamic Renaissance

It is with this determination that Dr Farouk, who is currently attached with Monash University, decided to set up the IRF in 2007 while working in Australia but only officially launched it two years later when he returned to the country after his stint Down Under.

Ten months after launching the IRF, Dr Farouk was struck with meningitis and was hospitalised for six months, spending two months in a coma. “And that is why I am now in a wheelchair. After that, it took me a while to get back to my work in IRF,” he added.

Dr Farouk had earlier moved to Kuala Lumpur in 2002 from Kota Baru and began working at the National Heart Institute (IJN) which was when he and some friends co-founded the Muslim Professionals Forum (MPF).

“I used to be a lecturer in Universiti Sains Malaysia in Kota Baru, Kelantan. My friends were telling me that my place was in KL, where I can actually share my ideas and thoughts, which, they said, were far ahead.

“And in Kelantan, if you are an ustaz, anything you say will be considered the Biblical truth. But if you are not, people are more sceptical of the ideas you promote.”

He left the MPF three years later after the issue of Lina Joy, the woman who had converted to Christianity from Islam, had cropped up and left him and his friends in odds over the matter.

“It seemed that they (his friends) predominantly decided to go against Lina for leaving the faith and I was against the idea, as I believed that there must be freedom of conscience. As the Quran says, ‘there shall be no coercion on religion’, meaning that you cannot force other people to embrace your faith as much as you cannot prevent a believer from leaving his faith.”

Critical thinking required

Asad The Message of the QuranThe idea of IRF, he said, was to rejuvenate the spirit and understanding of Islam, which was based on “The Message of the Quran” by Muhammad Asad, an Austrian Jew who converted to Islam in 1926.

“To me, this commentary is the most important work in the modern Islamic world. Asad MHe (Asad) was influenced by Muhammad Abduh (an Egyptian reformer and key founding figure of Islamic Modernism). Their thinking was so modern and that is what we need now in Malaysia.” He said that the country was in dire need of critical thinking, noting that the dogmatic way of thinking here has led to Malaysia lagging behind other societies in the world.

“If you look at our tagline, it reads ‘for people who think’. So thinking is the most important part that we are trying to promote. And this is what is lacking in Malaysian society. What we need now also is to ensure that there is justice, good governance, economic equality, transparency and accountability. These are the values we should strive for, not the ideal of Islamism where we set up an Islamic state for the state to impose upon its citizens.” – October 21, 2014.

Inspirations from Raja Aziz Addruse: Morality and the Rule of Law


October 3, 2014

Inspirations from Raja Aziz Addruse: Morality and the Rule of Law

Third Raja Aziz Addruse Memorial Lecture

International Malaysia Law Conference 2014

 by

Tunku Zain Al-‘Abidin ibni Tuanku Muhriz

 September 24, 2014

Royale Chulan Kuala Lumpur

Introduction

I’m not a lawyer.  Thank God.   So how is it that I am able to speak after the Chief Justices of Malaysia and Hong Kong in one of the main events of this conference?

When Christopher and Brendan met me some months ago to invite me to deliver this lecture, I was stunned.  I asked them why they would invite me, and they said they wanted someone younger, a change from the typical luminary, and a civil society perspective.  Furthermore Aunty Catherine had already approved.  With that final bullet, I could hardly say no.

And so today I’m delivering the longest lecture of my life in front of an intimidating audience.  However I see many people from outside the legal profession in the audience, which gives me an excuse to omit ostentatious legalese.

Raja AzizMalaysia’s Champion of The Rule of Law

To most of you, Raja Aziz Addruse was an éminence grise.  His curriculum vitae would take up most of the lecture, but he is rightly best known for three things: for being elected thrice to the presidency of the Bar Council; for founding the country’s first human rights NGO; and for dealing with profound constitutional issues either through his cases, writing or speeches.

To me, Raja Aziz was first a family friend.  I saw him at open houses and dinners throughout my childhood, when I knew him as Uncle Aziz, with no inkling of the role he played in our nation’s democracy.  When researching Malaysian politics and law as a teenager I kept seeing this name “Raja Aziz Addruse”, and eventually I realised this was Uncle Aziz.  I capitalised on this by interviewing him for my dissertation on social stratification in Malaysia.  On the proliferation of Datukships he said: “You don’t need a title to ‘be someone’.  There are many people without titles who are doing alright.  But there are many people just flout their titles to get somewhere.  In the end they don’t get very far.”[1]

This was very pertinent because in his lifetime he rejected at least four Datukships.  According to his daughter Raja Azrine, “as he had rejected it for the first time, it was not proper for him to receive further offers.”[2]  Yet there was no one more genuinely qualified for such recognition.

Still, while many people are entirely worthy of honours – like those in this room, hopefully – there is little confidence in the system.  Some analyse post-nominals to identify which award from which state has been bestowed to judge accordingly, but this is a sad reversal of the original intent of the system: that there may be shame in accepting honours.  As I will show in my lecture today, Raja Aziz did not need decorations to affirm his integrity, honour and morality: he had those in abundance, transmitted to the world by his gentlemanly decorum.

Of course there are greater things to worry about than our honours system, though that is indicative of a more general state of affairs.  Anecdotal evidence and opinion polls point to a lack of confidence in national institutions: the executive, legislative and judicial bodies at federal and state level, the electoral system, the police, and even the heads of state.  Check and balance institutions are derided in social media as being compromised by certain interests instead of constraining them, and among the chattering classes there is no shortage of cynicism to describe the health of our democracy.

In assessing how we got to such a state, we need to revisit our constitutional setup and the intentions of its architects: for it is our Constitution that largely defines the functions of these institutions and sets the rules of engagement between them.  Before we do that, it is prudent to consider some constitutional principles.

Constitutionalism

As every student of constitutional law knows, AV Dicey presented the orthodox perspective of constitutional law in the United Kingdom – that the sovereignty of Parliament was the prime constitutional principle: parliament can make or unmake any law whatever, and even the judiciary is subject to Parliament.  This view has since been challenged: one noteworthy case was R (Jackson) v Attorney General in 2005, where the judges’ obiter comments suggested that the rule of law trumped parliamentary sovereignty. 

But what do we mean by ‘the rule of law’?  In his widely acclaimed book on the subject, Lord Bingham identified eight features of the rule of law: accessibility of the law, law not discretion, equality before the law, the exercise of power, human rights, dispute resolution, a fair trial, and the rule of law in the international order.[3]

Friedrich August von Hayek believed that the central role of the state should be to maintain the rule of law, with as little arbitrary intervention as possible.[4] By contrast, Ronald Dworkin criticised the view that the rule of law embodied any formal qualities in law that could be determined by the application of a rule.  Rather, he regarded law as having inherent moral content and as itself a branch of moral philosophy. [5]

Jeffrey Jowell observed that Dworkin was seeking a general theory of law, while Dicey was seeking “a general principle of how power should be deployed by a government in a democracy”, though undeniably the questions are linked.  On parliamentary supremacy, he has said that “it may take some time, provocative legislation, and considerable judicial courage for the courts to assert the primacy of the Rule of Law over parliamentary sovereignty, but it is no longer self-evident that a legislature in a modern democracy should be able with impunity to violate the strictures of the Rule of Law.”[6]

Continuing on this note, Trevor Allan has argued that “the core of the liberal ideal of a government of laws requires that the general laws of the state contain some aspect of serving the common good. He writes: “No one can be expected to acknowledge any legal rule, as imposing a genuine legal obligation, unless it is accompanied by the claim that his obedience serves a common good.”[7]  The rule of law offers the individual not merely a series of laws to obey, but a justification for doing so.

Clearly, constitutional law is a deep topic, full of nuance, complexity and controversy.  The example of the UK illustrates the active debate that surrounds it.  We must note, however, that the Malaysian and the British legal systems differ in that we have a single written formal constitution.

Intuitively, one may feel this would help in clarifying this issue, but this is barely the case as disputes surround how written constitutions should be interpreted, as in the United States.  Recently President Obama was criticised by for making a “decisive break in the American constitutional tradition” by not seeking congressional consent when declaring war against the Islamic State of Iraq and Syria; instead, “the president is acting on the proposition that the commander in chief has unilateral authority to declare war.”[8]

So how do we balance the supremacy of the constitution with the sovereignty of parliament and the ideal of rule of law?  At the heart of this debate lies more fundamental questions about the very nature of law.  Is law, as HLA Hart would argue, merely something that is passed by the proper channels?  Or, as Lon Fuller would argue, is the law’s purpose to provide order and clarity?  Does legislation that fails to fulfil these criteria not deserve to be regarded as law?

To explore how we ought to define the law in Malaysia, it is crucial to place the law in its proper context.  The law does not operate in a vacuum, but functions within and interacts with society.  In this way the law both shapes and is shaped by society and is part of a broader societal framework.  The law should reflect society’s ideals and values, clarifying them and providing order to societal morality.

Here we come up against another issue: morality is personal but the law must be universal.  Given society is not uniform, but a collection of individuals each holding on to different beliefs, what shape should the law take in order to best secure the interests – and morality – of society as whole, rather than just a handful of interest groups?  Even if a nation’s founding fathers were at one time universally accepted as reflecting the nation’s moral norms, to what extent do we accept that those norms can change over time?

Many open-ended questions have been put forward, and we are in danger of moving from constitutional law to jurisprudence.  But asking these difficult questions is a necessary part of nation-building, and Raja Aziz played a large part in helping to answer them

Raja Aziz’s views

It is clear that Raja Aziz did not favour Dicey’s view, and he opposed the 1988 amendments that moved Malaysia closer to that position, writing: “The fundamental principle which applies under a written constitution is that it is the Constitution itself, and not Parliament, which is supreme… To remove from the High Courts the judicial power of the Federation, which had since Merdeka Day been vested in them, and to have Parliament instead confer upon the High Courts their jurisdiction and power cannot be conducive to the maintenance of an independent judiciary.”[9]

He favoured the interpretation of the Indian courts in Kesavananda v The State of Kerala in which fundamental rights provided by the constitution formed part of its basic structure and could not be abrogated, and lamented that the Malaysian courts in Loh Kooi Choon v Government of Malaysia as well as the Singaporean courts in Teo Soh Lung v Minister for Home Affairs rejected this argument.  “On this view,” he argued, “the fundamental rights, though said to be guaranteed by the Constitution, are illusory.  They form part of the Constitution only for so long as the Government deigns to let them remain.”[10] When asked in 2007 what the Constitution meant to him, Raja Aziz replied “it means nothing to me at the moment, because it can be changed at any time.”[11]

These words are ominous when the basic structure of our Constitution is under threat today with regards jurisdiction of courts, religious issues and the relationship between Peninsular Malaysia and Sabah and Sarawak.  Even more dangerously, there are those who have deliberately reinterpreted basic premises of our Constitution, citing key articles out of context as justification.  Raja Aziz, as a staunch defender of the Constitution as it was understood by those who drafted and adopted it, would be appalled.

His unwavering defence of the Merdeka principles led the current President of the Malaysian Bar, in paying tribute to his predecessor, to say: “Ungku was undoubtedly a legal luminary and a doyen of the Bar.  His unequivocal commitment to a strong and independent Bar and the independence of the judiciary – two essential elements of the rule of law – is legendary.”[12]Inevitably, Raja Aziz also commented extensively on other issues as and when they became topical.

On the independence of parliamentarians, he wrote: “No backbencher can afford to be independent if he depends on his parliamentary allowances for his existence.  Certainly he is not qualified to be one if he does not have the courage of his own convictions.”[13]

On freedom of speech, he opined: “A free press is one of the checks and balances necessary to secure the continued development of democracy,” and after mentioning the Printing Presses and Publications Act, the Official Secrets Act and the Sedition Act he went on to say: “Part of the obstacles to press freedom has been due to the reluctance of the courts to limit the scope of the restrictions which can be imposed on freedom of speech.  That has resulted in a wide discretion being left to the Public Prosecutor.” [14]  “In defamation cases, the courts have not shown concern at the adverse effect the substantial damages they have award to claimants… They seem to have misunderstood their role in a democratic society, which is to preserve and protect the constitutional rights of individuals.”[15]

On the 1993 constitutional amendments to remove the legal immunity of the Rulers, he warned: “The amendments will arm the Executive with the power to subjugate the Rulers through threats of prosecution for any offences, however minor.  The Rulers will be at the mercy of the Executive… The power to prosecute is a powerful weapon which, in the hands of the ruthless, can be abused to great advantage – not by prosecuting the alleged offender but by withholding prosecution in return for his cooperation.”[16]

On the mandatory nature of the death penalty, during his 1976-78 term as President of the Malaysian Bar, he “led the Bar Council to oppose legislation where judges must impose the mandatory death sentence for various offences without allowing them the opportunity to choose other alternative forms of punishment.”[17]

On police killings in the late 1990s, he wrote: “That the police have a right to self-defence and the requisite use of firearms in the course of apprehending suspects and preventing the commission of crimes is accepted.   What has, however, given cause for concern is whether in performing those duties the police have too willingly abandoned all principles of self-restraint when it comes to using firearms.  The alarming increase in the number of suspected criminal fatalities bespeaks the possibility of a police force that has forgotten the two crucial principles that define all legal and justified use of force – proportionality and discrimination.”[18]

On apostasy, in an article about a follower of the Sky Kingdom sect, he said: “[Kamariah Ali’s] long and futile legal struggle highlights the need to seriously address the constitutional issue of the right of Muslims to freedom of religion… The civil courts have the jurisdiction to interpret the Constitution and protect fundamental liberties, including the right to freedom of religion under Article 11.”[19]

On conversion of children to Islam by one spouse, he similarly “was critical of the court’s refusal to make decisions.”[20]

On the police reaction to the first Walk for Justice in 2007, he wrote: “Police officers turned up at the Bar Council office a few days after the Walk to question three of the Council’s office bearers against whom a complaint had apparently been made.  When requested to do so, the police officers were not able to provide details of the complaint or of the first information report.  They behaved as if the country was a police state.”[21]

On detention without trial, in 1976 after the government tabled an amendment to the Federal Constitution which would withdraw from persons arrested, detained or place under restricted residence, their rights to counsel amongst other things, he issued a Protest Note with the following: “One basic difference distinguishes those who are loyal to this country from those who are bent on over-throwing it; and that is, that the former have respect for the law.  But harsh and unjust laws cannot command respect willingly; and a law which treats persons who may have committed ordinary crimes in the same way as it does communist terrorists cannot be good law.  What distinguishes our system of government from that advocated by our adversaries is the fundamental human rights protected by the Constitution.”[22]

Mr Lim Chee Wee as President of the Malaysian Bar used that quote at the Dedication and Naming Ceremony of the Raja Aziz Addruse Auditorium three years ago.  In that speech Mr Lim also said that “Ungku would have welcomed the Malaysia Day speech made by our Prime Minister on 16 September 2011, on abolishing the ISA and other detention without trial laws.  He would also have scrutinised with a keen eye the actual words in which these promised reforms are eventually couched.”  If Raja Aziz were alive today, I’m sure he would pen an eloquent denunciation of the recent invocations of the Sedition Act.

Raja Aziz had a long-held distaste for the Sedition Act, and felt that the decision of the Indian Supreme Court in Kedar Nath v State of Bihar, in which the court recognised a duty “of drawing a clear line of demarcation between the ambit of a citizen’s fundamental rights guaranteed [by the Constitution] and the power of the legislature to impose reasonable restrictions on that guaranteed right in the interest of, inter alia, security of the State and public order”, was superior to the Malaysian High Court’s argument that “it is impossible to spell out any requirement of the intention to incite violence, tumult or public disorder in order to constitute sedition under the Sedition Act.”  Here, Raja Aziz cited the United States Supreme Court in Ricco v Biggs: “The preservation and protection of the individual’s constitutional rights are within the inherent duty and power of the courts, which the legislature can neither control or abolish.”  He went on to say that “the removal from the citizens of one of their fundamental rights cannot possibly be to promote the growth of the nation.”[23]

Dato’ Cyrus Das speaking in 2011 recalled how Raja Aziz “led the Bar team in the sedition case against Dato’ Param Cumaraswamy, then Vice-President of the Bar, arguing that the offence of sedition was a relic of British colonialism and did not sit well with the guarantees of liberty and free speech conferred by the modern Malaysian Constitution. Raja Aziz argued convincingly that the term ‘seditious tendency’ could not be applied elastically to cover every criticism of government that comes close to home.  The acquittal of Dato’ Param was applauded domestically and internationally as a vindication of free speech in Malaysia.”[24]

On so many issues, I found repeatedly that I agreed with Raja Aziz, even though sometimes that concord came from a completely different direction.

IDEAS

My background was in what lawyers like to denigrate as the “fluffy” social sciences centred on public policy and political philosophy.  Through this process I concluded that Malaysia was modelled largely on what would be termed in the UK as classical liberal lines: Bapa Merdeka spoke consistently of liberty and justice, and his speeches and articles are replete with calls for the protection of individual freedoms, for strong check and balance institutions, for government to keep out of business, and his famous maxim that a free, sovereign nation is better happy than mighty.

In London I found two Malaysians who agreed with me and we established a think tank to promote these values and commensurately advocate policy change.  This became the Institute for Democracy and Economic Affairs, which I am happy to say today flourishes under a dedicated team that promotes market-based solutions to public policy problems guided by the principles of rule of law, limited government, individual liberty and free markets.

When I returned to Malaysia one of the first events we organised was a seminar on the rule of law, and I asked Raja Aziz to speak.  He graciously agreed, and more generally when we met over meals with my parents, conversations would turn to what IDEAS was doing and what I was writing about.  He disagreed with me sometimes – a point he would make explicit when he wrote his foreword to my first collection of articles.[25]

We were on the same page when it came to political freedom, but he was less enthusiastic about IDEAS’ views on economic freedom.   Still I think he was glad that we had set up this think tank, and thought us a worthy participant in the NGO space that was pioneered by HAKAM, which he founded with Param Cumaraswamy, Tun Hussein Onn and Tunku Abdul Rahman in 1989.

Raja Aziz showed me that there is no issue beyond debate.  He proved that even the most incendiary topics could be calmly but comprehensively explored.  Today there are those who feel that certain institutions should never be questioned, and would advocate an authoritarian show of force and use the Sedition Act if citizens question certain decisions.  But such tactics are hardly conducive to fostering affection for the very institutions that they are purportedly trying to defend.  History has given us ample evidence of the terrors that can arise once governments adopt such logic.  Conversely, confidence in institutions can be engendered by demonstrating that they serve the people, and equally importantly, by showing how they evolved over time in our particular socio-political milieu.

History

When I talk to young Malaysians about the history of democracy in this country I start by citing the agreement between Demang Lebar Daun and Sang Sapurba, which established a contract between the ruler and the ruled, as well as the Batu Bersurat Terengganu of 1303, which required the ruler to act in accordance with a higher power.  The next few centuries see a rich tradition of law-making, especially in Malacca and Kedah, as the increasingly prosperous sultanates demanded that citizens and traders enjoyed security, justice and low taxes.  The federation of Negeri Sembilan shows us that traditional institutions from Pagar Ruyong – the matrilineal clan structure, decentralised governance and adat courts – could be adapted to fit a new geography.  The Johor Constitution of 1895 and the Terengganu Constitution of 1911 show us that rulers were aware of the importance of separation of powers and limits to the authority of institutions.

While the Reid Commission looked to the Westminster model in the writing of our Constitution, there is no doubt that history played its part: the Rulers and political leaders involved in the Merdeka negotiations would not have accepted a paradigm that was alien to what the people were used to – after all, that lay at the crux of the rejection of the Malayan Union.   In a sense, the 1948 Federation of Malaya settlement, the 1957 Merdeka Agreement and the 1963 Formation of Malaysia were echoes of the 1773 Federation of Negeri Sembilan: different institutions with different histories fusing together in an attempt at create modern sovereign states in the Westphalian system.

Unfortunately, this is not the way Malaysian history is presently taught to schoolchildren, where key events are often not placed in the proper context.  In the worst case, important events are cherry-picked and distorted in order to satisfy present-day political objectives.  While every country has its national myths and legends, not all governments permit academic scrutiny of these myths and legends.  This is why I have constantly argued for the need to liberate the teaching of history from political control.

The post-war period is particularly sensitive. The Malaysian Left continuously complains that their contributions to independence are omitted from official accounts.  But the role of the Malay Rulers too is relegated in favour of the myth that a single political party championed and won Merdeka.  Sustaining this narrative necessitates the creation of another myth: namely, that institutions have, over the last sixty years, remained static and monolithic – as if the political successors of Dato’ Onn Ja’afar and Tunku Abdul Rahman are by default their ideological successors.  Accordingly, internal party factionalism is conveniently forgotten.

Also forgotten is past leaders’ attitudes towards authoritarian legislation in particular conditions.  When confronted on the possible abuse of the Internal Security Act designed to combat communist terrorists, Tun Dr Ismail Abdul Rahman famously replied that “Abuse of the Act can be prevented by vigilant public opinion via elections, a free press and above all the Parliament.”[26]  Imagine that!

The confidence Malaysians have in these institutions is weak partly because of this deficient grasp of history, but is aided and abetted by deliberate distortion by political leaders, often through collaborative academics.

 Today

This has drastic consequences.  When institutions have been compromised by personal or party interests, it becomes difficult even for ethical individuals to rectify the situation.  There are several figures who once enjoyed good public reputations in the NGO or corporate world, but lost credibility simply by becoming cabinet ministers.  The prevalent view is that individuals will be corrupted by the system, instead of the system being cleansed by individuals.  This in turn deters many citizens from wanting to contribute, and the cycle of institutional destruction spirals downward.

Ulterior motives are assumed where there are good intentions, and damaging aspersions are cast.  In the worst case scenario, dejected individuals come to the conclusion that “since others are going to think I am corrupt anyway, I may as well be corrupt.”  It helps that politicians have amassed tools of patronage to reorient loose moral compasses:  I have seen how admirable people who succeeded in competitive international environments nonetheless succumb to extra inducements.  It also helps that accomplices in the traditional and new media will happily concoct fictions their paymasters direct.

When you place this in a political environment that routinely employs the vocabulary of race and religion, there is even more polarisation.  Retired politicians and civil servants tell me how, once upon a time, political leaders on opposing sides were able to socialise with one another.  They may have disagreed ideologically but they did not doubt each other’s sincerity.  Today, simply supporting a different party leads to accusations of treason.

In such an atmosphere, what hope is there for rule of law and morality?  How do we break the cycle of institutional destruction?  Party hacks will naturally say that only if their side gains a comfortable majority at the next election will there be real change.  Yet, as we have seen in recent political shenanigans on both sides, that is unmitigated fantasy.

Rather, we need to cajole political forces into a consensus, to re-forge a shared understanding of the Constitution, the rule of law, and the separation of powers.  Here, aspects of Tun Abdullah Badawi’s administration are instructive.  During his premiership there was an opening up of democratic space that allowed organisations like IDEAS to prosper, strengthening the role of civil society.  His acceptance of the 2008 general election results while others bayed for blood proved that peaceful transitions are possible.  His decision to form a Royal Commission of Inquiry into police reform produced a valuable proposal for an Independent Police Complaints and Misconduct Commission, even if it wasn’t fully implemented.  His attempt to reform the judiciary, accompanied by a statement of regret about the 1988 constitutional crisis, was a step in the right direction in recalibrating the relationship between judiciary, executive and public.

So there are things that morally courageous Prime Ministers can do to realise Tunku Abdul Rahman’s vision of “a sovereign democratic and independent State founded upon the principles of liberty and justice.”[27]  But where moral courage might be absent, it is up to civil society to show that the pillars of the Rukunegara can be upheld without the insincere hectoring of the state

I know that the Malaysian Bar, through its various committees, have strong relationships with NGOs too.  You’re in a unique position, being a creature of statute rather than subject to the Registrar of Societies.  But recently even the Bar has been made a scapegoat for incompetence elsewhere: the leaking of an early draft of the National Harmony Bill, for example, was laid at your feet even though political machinations drove it.  The future of that legislation is uncertain, since the Sedition Act has been lately invoked despite a promise to repeal it.

It is important to bear in mind that the motivations of those on either side of the Sedition Act focus on quite different aspects.  Those who want to repeal the Act – like the 701 members of the Malaysian Bar who voted last Friday to march peacefully against it – are outraged by the recent spate of arrests.  Here, Raja Aziz’s point about the elasticity of the definition of ‘seditious tendency’ is prescient.

On the other side, there are those who want to keep the Act out of a genuine fear that racial and religious slurs will be spread to incite violence.  Here I think the majority of members of the Bar would sympathise.  That is why it is vital that a completed draft of the National Harmony Bill be presented to Parliament as soon as possible, so that both sides might be assuaged.  This view is well articulated by Dato’ Saifuddin Abdullah, the former deputy minister for higher education and now CEO of the Global Movements of the Moderates Foundation.

Though he has shown moral courage, there needs to be more.  In such times we miss Raja Aziz.  His moral courage, leadership and reasoned voice of calm would pierce through the turbulence to educate us all.

Conclusion

Thus far I have tried to demonstrate my inspirations from Raja Aziz.  Here are some others:

Tun Dzaiddin Abdullah, who was his partner at Rithauddeen and Aziz, and presently Chairman of IDEAS’ Council, wrote: “He couldn’t care less about politics but was focused on the law.  He would only take a case if there was a legal issue, not for political reasons.  The law was closest to his heart.”[28]  Indeed, Raja Aziz representing Syed Husin Ali, Dato’ Seri Anwar Ibrahim or Chin Peng does not in itself, as apparatchiks on both sides might wish to promote, mean he endorsed their politics or ideologies.

Introducing the inaugural Raja Aziz Addruse Memorial Lecture, Mr Christopher Leong said: “‘To act without fear’ is not to have no fear; it is to have the ability to overcome fear or to act in spite of it.  The cause of justice demands this of the Members of the Malaysian Bar, and Ungku exemplified it: there is no advocate I know who has conducted and carried himself truer to this core principle of the Bar.”[29] 

Mr Lim Chee Wee spoke of the personal legacy that Ungku left to Malaysian lawyers: “There can only be one Raja Aziz Addruse.  That his professional brethren recognised this is attested to by the number of lawyers whose reaction to a crisis is to ask themselves, ‘what would Ungku have done?’…  He would have taken an unwaveringly moral stand, couched in terms at once certain and polite, and he would have maintained this approach against all challenges, in the face of all adversities, without thought of personal consequence.”

Dato’ Cyrus Das said of Raja Aziz: “Principles like the rule of law and the independence of the judiciary were to him not mere clichés or fancy words to be uttered at the appropriate time and to be forgotten when it becomes inconvenient.  Raja Aziz believed in these values.  He was acutely aware from the Tunku’s time that Malaysia was a developing democracy and that a proper balance had to be struck between executive authority and individual rights.  He saw the Malaysian Constitution as providing for this equilibrium and that the role of the judiciary was to maintain this balance.   By his cases he strove valiantly to argue for this principle anxious that the judiciary should not be seen by the public to be a mere extension of government.”[30]

And Dato’ Param Cumaraswamy said: “His eminence in advocacy before the Courts and the respect he commanded from the Judges earned him a reputation, and he was in demand in the profession as lead counsel…  When Lord President Tun Mohd Suffian first introduced the appointment of temporary judicial commissioners to clear then backlog of cases in the High Court, Raja Aziz was one of the few appointed. But he refused any permanent judicial appointment. He felt that only through practice of the law could he contribute effectively to the advancement of the cause of justice through respect for the rule of law and human rights…  He gave voice to the voiceless, taking on their causes on pro-bono briefs before the courts to assist those who could not afford access to the courts… His relentless and committed pursuit of justice through the rule of law was noted by the International Commission of Jurists, [and] Raja Aziz was elected as a Commissioner in 2006.”[31] 

Raja Aziz was more than just a great constitutional lawyer: he was a national hero.  I hope that through the efforts of the Malaysian Bar, and especially through this lecture series, his legacy will not go the way of so many other Malaysian heroes: forgotten and unappreciated. 

Perhaps we can take comfort in the fact that, despite the 1988 amendments, there remains a contestation between the supremacy of Parliament and that of the Constitution: that judicial review may survive despite ouster clauses, that separation of powers is inherent to our democracy, that the basic structure doctrine should apply.  Like many of you, I pray that the battle that Raja Aziz fought throughout his legal career can still be won – but only if the Malaysian judiciary successfully asserts its independence, and wins respect from the people.

By way of conclusion I would like to thank my parents, through whom I first got to know Uncle Aziz, and who have supported me as I have navigated precariously through the nexus of Malaysian civil society and politics.Dato’ Dominic Puthucheary, Dato’ Malik Imtiaz Sarwar and Vinayak Sri Ram for giving valuable feedback on early drafts of this lecture.

IDEAS’ intern Jian Eu for gathering materials and drafting a section of this lecture. The Bar Council, especially Christopher Leong and Brendan Siva for inviting me to deliver this lecture, Chin Oy Sim for sending me rare resources on Raja Aziz, and Anne Andrew for assisting with invitations.And Aunty Catherine for her trust in me.

If anything I have said does not befit the stature of the Raja Aziz Addruse Memorial Lecture, then I apologise.  If I have misrepresented the opinions of others, then please correct me.  If I have committed sedition, then God help us all – though I can count on 701 members of the Malaysian Bar to assist.

One of the fascinating nuggets I learnt in the course of preparing for this lecture was Raja Aziz’s role, as Deputy Parliamentary Draftsman, in one piece of legislation that never saw the light of day: the Malay Surnames Act.  In an interview he revealed: “[Tunku Abdul Rahman] thought that having surnames would enable Malays to trace their lineage much more easily and they would no longer need to use bin or binti… I thought that it was a very good thing and I adopted Addruse.”

While Raja Aziz rejected all offers of Dato’, he certainly lived up to the style of “Yang Mulia”.  But it is the name “Addruse” that we must ensure endures as an inspiration of steadfast morality.  I ask you now to spend a moment to remember him in your thoughts and prayers.

_________

[1]Tunku ’Abidin Muhriz, Transcript of interview with Raja Aziz Addruse, 23 December 2002

[2] Quoted in ‘Bar auditorium renamed after Raja Aziz Addruse’, Malaysiakini, 30 October 2011

[3] T Bingham, The Rule of Law (2010)

[4] F Hayek, The Road to Serfdom (1944)

[5] R Dworkin, A Matter of Principle (1985) and Laws Empire (1986)

[6] J Jowell, D Oliver (eds) The Changing Constitution (2011)

[7] TRS Allan, ‘The Rule of law as the rule of reason: consent and constitutionalism’, Law Quarterly Review, 1999

[8] Bruce Ackerman, ‘Obama’s Betrayal of the Constitution’, New York Times, 11 September 2014

[9] Raja Aziz Addruse, ‘Fundamental Rights and the Rule of Law: Their Protection by Judges’

[10] Ibid.

[11] Roger Tan, ‘A gentleman who believed in honesty and fair play’, The Star, 13 July 2011

[12] Christopher Leong, Speech at the presentation of the inaugural Malaysian Bar Lifetime Achievement Award, 10 March 2012

[13] Raja Aziz Addruse, ‘Does our Constitution provide for adequate representation for opposing and varied interests in Parliament?’, The Malayan Law Journal, April 1976

[14] Raja Aziz Addruse, ‘Journalists, Press Freedom and the Law’, 10 May 2002

[15] Raja Aziz Addruse, ‘Human Rights and the Fundamental Liberties under the Federal Constitution’, Pahang Bar Annual Lecture 2000

[16] Quoted in Professor Mark Gillen, ‘The Malay Rulers Loss of Immunity’, 1994

[17] ‘Bar auditorium named after Raja Aziz Addruse’, Malaysiakini, 30 October 2011

[18] Raja Aziz Addruse, ‘Police cannot assume the roles of judges’, New Straits Times, 11 April 1998

[19] Raja Aziz Addruse, ‘Let’s have certainty in this law’, New Straits Times, 27 April 2008

[20] Ding Jo-Ann, ‘Remembering Raja Aziz Addruse’, The Nut Graph, 12 December 2011

[21] Raja Aziz Addruse, ‘The Constitution: What it means to me’, New Straits Times, 27 April 2008

[22] Quoted in Lim Chee Wee, Speech at the Dedication and Naming Ceremony of the Raja Aziz Addruse Auditorium, Bar Council, 29 October 2011

[23] All quoted in Raja Aziz Addruse, ‘Fundamental Rights and the Rule of Law: Their Protection by Judges’

[24] Cyrus Das, Speech at the Dedication and Naming Ceremony of the Raja Aziz Addruse Auditorium, Bar Council, 29 October 2011

[25] Tunku ’Abidin Muhriz, Abiding Times (2011)

[26] Quoted in Ooi Kee Beng, The Reluctant Politician (2006)

[27] Tunku Abdul Rahman, Proclamation of Independence, 31 August 1957

[28] ‘Raja Aziz a quiet man of principles’, New Straits Times, 13 July 2011

[29] Christopher Leong, Opening Remarks at the Inaugural Raja Aziz Addruse Memorial Lecture, 29 October 2011

[30] Dato’ Cyrus Das, Speech at the Dedication and Naming Ceremony of the Raja Aziz Addruse Auditorium, 29 October 2011

[31] Dato’ Param Cumaraswamy, ‘Raja Aziz Addruse – At the forefront of advocacy’, Aliran, 7 September 2011

 

 

 

 

Symmetrical characters, parallel fates


August 19, 2014

Symmetrical characters, parallel fates

COMMENT by Terence Netto@www.malaysiakini.com

Men of destiny seek proof of their greatness by exercising a license to go too far, and as the fear grows that destiny may have played a terrible joke on them, they double and redouble the stakes on the wheel of fortune. In this way they destroy themselves.-Terence Netto

hype_najib1Now that the cat has sprung out of the bag and is dashing about among a wider public, the only news would be if anyone has died of shock from the revelation that Dr Mahathir Mohamad has withdrawn support for Prime Minister Najib Abdul Razak.

After months of premonitory sniping at the Premier by his satraps, notably A Kadir Jasin and Zainuddin Maidin, the man himself has come out in the open with a formal declaration of hostilities. There is no more cogent example of déjà vu nor self-parody than the producer himself reiterating he is about to re-start a familiar business – the demolition of a sitting PM.

A fortuitous benefit of this incipient extravaganza – to the federal opposition, Pakatan Rakyat – has been the confirmation that their self-destructive shenanigans in Selangor have furnished the opportunity to the premier demolisher of incumbent PMs to fix on this as the most opportune time for the unleashing of his decanal decapitation of national head honchos, not to mention a few deputies as well.

The wonder is that anyone at all, at this advanced juncture of their career trajectories, could be surprised at how the two protagonists, one of the drama about to start and the other of an already running one in Selangor, confirm a truism of classical Greece – that character is fate.

Character here is taken to mean the way in which a person confronts the things that happen to him, a number of which may come about as a consequence of his characteristic behavior. Fate is the sum of the decisive things that happen to a person, whether as a result of his characteristic behavior, or fortuitously, at the behest of some transcendent power.

That the characters of Mahathir and Anwar Ibrahim have fed off each other is by now a staple of Malaysia’s modern history. Malaysians are beginning to realise that the one’s career could not have been possible without the other and vice versa.

Truly, the reformasi movement would not have been catalyzed into something urgent and insistent without what Mahathir did to Anwar in September 1998 and how the latter reacted to the events.

Before September 1998, the movement was an inchoate yearning; after Anwar’s jailing and obloquy, reform became a national agenda. Mahathir would not have been able to prolong his tenancy of the PM’s office – 22 long years – without Anwar’s lieutenancy for 16 years of that tenure.

Certainly, the accretion of power to the office of the PM and UMNO President could not have taken place without Anwar’s tacit support, as heir presumptive to Mahathir.

The long running drama of their interaction since they first met in 1971 and their influence on the life of this nation over the last four decades is so pivotal that our history itself becomes confused with their own biographies which goes to illustrate historian Thomas Carlyle’s theory that humanity advances by means of these demi-gods or ‘heroes’.

Succumbing to the danger of self parody

But as the philosopher Ralph Waldo Emerson cautioned: “Every hero becomes a bore at last”: the two are presently in danger of inducing a yawn in arenas they once bestrode as giants. If it happens it would be due to their succumbing to the danger of self-parody each is tempted to flirt with, Mahathir more so.

Tun Dr. MahathirMen of destiny seek proof of their greatness by exercising a license to go too far, and as the fear grows that destiny may have played a terrible joke on them, they double and redouble the stakes on the wheel of fortune. In this way they destroy themselves.

By claiming at the commencement of his unseat Najib campaign, after the fashion of Brutus, that it is not because he loves his leaders less but that he loves the people and country more, Mahathir is parodying what Anuar Musa, then a young delegate from Kelantan to the UMNO general assembly in 1983, who quoted from the Shakespearean play Julius Caesar the words Brutus used before stabbing Caesar. The Roman emperor was surprised that a friend like Brutus could be part of squad of assassins with regicide in mind.

Anuar cited the quotation in the course of rhetorical flights faintly critical of Mahathir’s leadership of UMNO. Mahathir’s response was characteristically brusque. “Brutus stabbed Caesar” he reminded the UMNO delegates. In other words, back-stabbers are back-stabbers, their lofty motives notwithstanding.

If Mahathir unseats Najib, the wheel would have come full circle in his career: he began his ascent to the top of the greasy pole by destroying one UMNO President (Tunku Abdul Rahman) and is set to end his career by destroying the son of the man (Abdul Razak Hussein) who gave him the chance to rise after a display of Oedipal rage against the Tunku.

If PKR allows Anwar to convert the party into his personal fiefdom, his thrust to the top of the totem pole that began with his rebellion against nepotism, cronyism and corruption in 1998 would flirt with what could well be a fatal contradiction. Not for the first time in history would pivotal allies-turned-adversaries have symmetrical characters/parallel fates.