Third Raja Aziz Addruse Memorial Lecture
International Malaysia Law Conference 2014
Delivered by Tunku Zain Al–'Abidin ibni Tuanku Muhriz
24 September 2014
Royale Chulan Kuala Lumpur
Mengadap Paduka Ayahanda Duli Yang Maha Mulia Yang di–Pertuan Besar Negeri Sembilan
Paduka Bonda Duli Yang Maha Mulia Tunku Ampuan Besar Negeri Sembilan
Ampon Tuanku beribu–beribu ampon, sembah patek mohon di–ampon.
Patek ingin merafak sembah menjunjong kaseh di atas perkenan Tuanku berdua menchemar duli berangkat hadir ke Kuliah Peringatan Raja Aziz Addruse yang ka–tiga pada petang ini. Tuanku telah berangkat hadir ke kuliah pertama dan ka–dua, dan patek yakin Tuanku akan berangkat hadir ke kuliah ka–tiga tidak kira siapa juga yang menyampaikan–nya.
Patek dengan segala hormat dan ta’zim–nya memohon izin limpah perkenan Duli Tuanku untok menurus–kan uchapan kapada tetamu yang hadir.
Mrs Catherine Addruse
Yang Amat Arif the Chief Justice of Malaysia
The Honourable Chief Justice of the Court of Final Appeal of Hong Kong
Yang Amat Arif the Chief Judge of Sabah and Sarawak
Yang Arif Judges of the Federal Court, Court of Appeal and High Court
The Honourable Sansern Kraichitti, Former Chief Justice of Thailand
Yang Berhormat Senators, MPs and ADUNs
Your Excellencies High Commissioners and Ambassadors
Yang Mulia Tunkus
Yang Amat Berbahagia Toh Puan Umasundari Sambanthan
Yang Amat Berbahagia Toh Puan Aishah Ong
Yang Berbahagia Tan Sris, Puan Sris, Dato’s and Datins
Mr Christopher Leong, President of the Malaysian Bar
Mr Brendan Navin Siva, Chair of the IMLC Organising Committee
Members of the Bar
Friends, distinguished guests
Assalamu’alaikum warahmatullahi wabarakatuh and good afternoon
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.
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.
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 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.
4. 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.
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.
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.
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.
Ladies and gentlemen, 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, Datuk 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.”
Ladies and gentlemen, 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. Al–Fatihah.
Thank you very much.
Sekian sahaja uchapan patek. Ampon Tuanku.
Wabillahi taufiq walhidayah.
Wassalamu'alaikum warahmatullahi wabarakatuh.
1Tunku ’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’
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