December 10, 2015
Can there ever be Justice without Ethics and Conscience
by Syed Ahmad Idid
(edited for the purpose of the blog)
Former Judge of the Malaysian High Court, Dato’ Syed Ahmad Idid delivered this speech at the International Conference on “Putting Ethics to Work in Business and Government” at the Pullman Hotel, Kuala Lumpur organised by the Malaysian Anti-Corruption Foundation on December 1o, 2015.
I want to take this opportunity to bring back the good old corruption-free days and when crimes were few. During those times greed and riches played small parts in the lives of society. Ethics ruled human relationships. Families were concerned with their reputation (“mereka berasa malu nak buat salah”) and so took care to avoid committing crimes.
Today the very rich hold power and power seems to save them from criminal prosecutions. They have security guards to protect them and their chosen ones. It does not matter how their wealth was accumulated.
Those without much (and these comprise about 95% of the population) pay respect or “kow-tow” to them (“the filthy rich”) anyway.
Derrick A Bell : “We live in a system that espouses merit, equality and a level playing field but exalts those with wealth, power and celebrity, however gained”.
I am mindful of the theme of this conference: “To put Ethics to work in Business and Government”. The bigger picture is to support our nation by nurturing our young into becoming decent human beings and steadfast crime-fighters.
Against that background I hope to illustrate some colourful truths which should answer the question: Can there be justice without ethics and conscience?
I shall offer statements. I shall leave the discussion of their impact and worth to each of you. I am given to understand that you are well versed in Anti-Corruption, its implications and importance. Furthermore you are here to yet again make a resolution to get rid of corruption, bring in people of integrity and try to integrate justice in the administration by way of infusing ethics and conscience.
Malaysian Anti-Corruption Foundation
Since I confine my presentation to Ethics and Conscience, I like what Aristotle said: “Educating the mind without educating the heart is no education at all”. You will also accept that “education is not only what the teachers teach you but what you learn”. (from my old Ibrahim School Sg. Petani.)
I realise that I need about four to five hours to put across to you the substance of our topic. But in view of the shortage of time, there being several other foreign guest speakers, I shall touch principally on the salient points. I have a paper (for distribution) which provides the authority for my statements, guidance to the articles and books and contact details. There are references in support of our discussion. I hope there will be sufficient copies for most of you.
Let us start with:
Everyone here understands what ethics mean. That is a reasonable assumption.
You may have read JM Pollock’s “Ethical Dilemmas And Decisions in Criminal Justice”. Ethics can change colours from time to time. In the old days, the hosts would receive guests at the entrance. Today guests attend dinners or other functions but are then told to stand up when the hosts arrive.
Was it not Larry Niven who said: “Ethics change with technology”? Can this be true?
I merely mention here the two main theories of ethics: the Utilitarianism or teleological vs the Rules and Duty or Deontology. “Ethical Challenges within Westminster Parliamentary Systems – including focus on Funding of Political Parties” was discussed this morning.
I am pleased to receive four copies of the booklet “Reforms for transparent and accountable political funding in Malaysia” from Datin Azimah Rahim (Chairman of PAGE). I shall pass these to the MACF Organisers for MACC and the library. We, in G25, had prepared it for general release.
“Ethical Challenges within Westminster Parliamentary Systems – including focus on Funding of Political Parties” was discussed this morning. I am pleased to receive four copies of the booklet “Reforms for transparent and accountable political funding in Malaysia” from Datin Azimah Rahim (Chairman of PAGE). I shall pass these to the MACF Organisers for MACC and the library. We, in G25, had prepared it for general release.
There will be “food for thought Dinner” address on “Ethical Corrosion: Our Collective Culpability” . All of us will have to accept our punishment!
Then the conference has two sessions on Integrity (Party Political Reform: Strengthening Integrity Systems and Pinstripe Mafia ). I mention this because integrity, encompassing moral uprightness, is the other dress for ethical people.
Did Warren Buffet say, when choosing persons to work under him, “Look for three things in a person: intelligence, energy and integrity. If they don’t have the last one, don’t even bother with the first two”. For the Banking/Finance sector, we must have people who are educated, industrious and of probity. It goes without saying that in both sets of qualities, ethics are present and none of these people commit crimes.
Jeffrey M Shaman, Director of the Centre for Judicial Conduct, wrote “Judicial Ethics” to publicise the powers of judges in society. You have attended “The Role of the Judiciary in a Democracy” this morning.
Josephson’s Institute of Ethics describe six distinct Core Values as forming Ethics. I believe you know each of those values. That is why you are here today. I do not need to remind you of the absence or lack of ethics on the part of such companies as Shell, Nike, British American Tobacco and other big corporations. In the case of the HSBC, Stuart Gulliver revealed that “several senior people had been removed for “values breaches”. Here, once more, you see Ethics coming in to aid the nurturing of justice for the customers and share-holders.
HSBC’s cases concerning (a) an ex-staff Faciani who revealed tax evading account holders including those thousands in India, and (b) Everett Stern who revealed about Middle Eastern account holders appear to go awry. In (a) Faciani was sentenced to five years while in (b) HSBC had to pay a fine of US$1.92 billion. In both cases the business appeared to have disregarded ethics or some form of remorse.
Another glaring case would be the deadly ignition switch defect in GM. The National Legal and Policy Centre asked: “Will criminal charges bring Justice for GM Victims?” The Centre promotes Ethics in Public Life. It helps us to answer the question “Can there ever be justice without ethics?”
Merriam Webster: “Conscience – that part of the mind that makes you aware of your actions as being either morally right or wrong” or “a feeling that something you have done is morally wrong”. Henry Fielding: “Conscience is the only incorruptible thing about us”.
Mahatma Gandhi: “There is a higher court than courts of justice and that is the Court of Conscience. It supersedes all other courts.” Stokely Carmichael: “There is a higher law than the law of Government. This is the law of conscience”.
“As sober as a judge”.. Justice Howard T Markey said:” Whether pre-schooling in judicial ethics is instituted or some other means is adopted to facilitate the efforts of judges to earn respect, I look forward to the day when the popular expression will be a new and widely recognized truism “As ethical as a Judge”.
Is conscience innate? Or genetically determined or something parents instil in us? The American Philosophical Quarterly decided conscience assists in distinguishing right from wrong.
Muhammad ibn Zakariya Al-Razi argued that there is close relationship between conscience and spiritual integrity.
You will agree that nowadays only very few people have “clear conscience”. You wonder: how can groups of ordinary mortals, say in the Armed Forces or Security, kill innocent people? Where is their conscience? My Lai in Vietnam (March 16, 1968 whole village gunned down), Srebrenica in Kosovo: the Mostly Orthodox Serbs killed more than 7000 unarmed Muslims? The Nazis: Hitler’s activities in 2nd WW. The Communists in China (1949-1987 – 40 million killed); 1975-1999 the Khmer Rouge killed two million in Cambodia. The Tamil Tigers/LTTE evicted and killed Muslims and Christians in the Sri Lanka’s Northern Province in 1990. There was Rwanda 1994 (Hutus killed Tutsis) and DR (Democratic Republic of) Congo where Government and their agencies eliminated those who opposed them.
The only reason I have included this is that conscience and ethics are not confined to the businesses and within money circles. We must extend our “corruption” (this, I am informed, is the main push of our discussions) to include corruption of the spirit, the souls and the minds.
And to end this quickly, you will want to visit the Santa Clara University at their Markula Center for Applied Ethics where they published an article discussing the Milgram Experiment. This experiment found that:” most people will obey external authority over the dictates of conscience”.
I like to think that more people should be taught morality, Godliness and the Life hereafter. They ought to be exposed to discussions that uprightness and ethics are more important than obeying bad orders. Such classes will prick their conscience and will buttress them against the evil intentions that create injustice.
Justice: ( cf: Maqasid Al Shariah)
Many here also understand what justice is and more of you expect what justice should be. Walt Whitman observed that “Great is justice. Justice is not settled by legislation and laws; it is in the soul.”
“For me, justice is the first condition of humanity” so stated Wole Siyingka in his Book “The Man died – Prison Notes (1972)”.
Taking from what Lord Hewart had said, I am inviting you to open your minds far beyond criminal justice. While “justice should not only be done but should manifestly and undoubtedly be seen to be done” is acceptable, I urge all – both custodians of the holy courts and officials administering justice and others including the ordinary folks – to ensure every criminal is appropriately dealt with.
Those who have not committed any offence and suspects against whom the investigators cannot get sufficient evidence should never be charged in the courts . They will ultimately go free, thanks to brave, impartial and independent judges. But that is not the justice our religion and nation want. These innocent souls suffer. In the meantime they have to spend money which they can ill afford on legal defence, their families placed under stress. They are ostracised by people whom they thought were friends and neighbours. Their reputation is sullied and they can never recover. We must never reduce the dignity of any human being.
Why do I add this? Simply because I need you to re-think on the dangers that persons with no conscience and are unethical can suppress justice. They misuse their powers for self or politics. They have no compassion for people: foreigners and citizens. They do not do justice for the country. They bring disgrace to the country.
And there you are … you have answered one part of the question!
I think the topic was meant to be on “Criminal Justice Systems ”. But I like to go on a bit with criminal systems as this gives us an overview of both sides of the divide : the criminals vs the G -men.
We are in this international conference and so we can go back briefly to the bad days when criminals ruled several countries. Let your minds wander to the actions of the Mafia (who controlled everything from street corner drug trade to the highest levels of Government.), the Tongs (principally in North Americas, but not so organised as the Hong Kong triads or the Yakuza in Japan), the Triad Societies . All were into illicit activities for monetary gain. Those carrying on such crimes are also for the cash. To them violence and killings were collateral.
Those keen to do research on the Triad societies (Kongsi Gelap or Dark Partnerships) in Malaya, Sabah and Sarawak can get police papers on these. Most of the gangs have numbers like 04, 08, double 7, 18, 21, 24, 30, 36 and 38 plus Gee Ah Eng, Loh Kuan, Wah Kee, Sio Sam Ong. Sabah has ATAP, Otai and Borneo Red EMP while Sarawak has Ah Ngau, Batu 10, Sibu T, Pintu Merah and Krokop. There are a dozen others.
Among the audience must be Astro viewers who keep track of the activities of “kongsi gelap” (gangsters) whose leaders were invited to work as police inspectors. I refer to the On-Demand movie: Lord of Shanghai.
Secret societies too have a system quite akin to Government bureaucracy and hierarchy. They have their Commanders or Chiefs, their lieutenants, their running-dogs, macai and “Special Branch” to snoop out those who may try to cause trouble to them.
On this scale, it is quite apparent that such a system cannot produce ethical members or anyone with a conscience. With a stroke of the pen, we can assert that their activities cannot deserve mercy. But even here we must maintain our integrity and do what God decrees in our conscience. When these bad hats are produced in courts, we must still ensure they get the justice they deserve.
Why? Simply because we are people who treasure ethics and we have conscience. So we must not go low to their level to strike at them as if we are no longer humans.
I was glad to meet Dr Anis Yusal Yusoff (President & Chief Executive Officer of the Malaysian Institute of Integrity) at the G25-IDEAS Lecture by Dr Razeen Sally and Tan Sri Rebecca Sta Maria (Secretary- General of MITI) on December 3. Dr Anis is knowledgeable on the threat against good governance and injustices.
Detection and Enforcement are essential.
In every criminal justice system, detection of the criminals is first priority. This can come via information or monitoring/enforcement. Criminals kill those who inform on them. Numerous large crimes have been uncovered and the criminals brought to justice. Here we can safely say that the criminals are not ethical and they have no conscience. How could they cheat the people or organisations they were salaried to protect?
But when they are charged, our community or country metes out justice by way of their convictions and punishments. This must be according to the law. Hence enforcement is key to the justice system.
Whistle-blowing is the latest trend in cleaning up corporate crimes and corruption in Government. We can call it “the flavour of the century”. In late 2014, the US Securities and Exchange Commission announced that it paid out an award of between US$30 million and $35 million dollars to an ex-whistle-blower residing overseas. In October 2013 the SEC paid US$14.7 million to one whistle-blower and paid others in millions too.
On November 4, this year (a month ago!) the SEC reduced the amount of whistle-blower award to US$354,000. The policy to pay high awards has not changed. The reduction was due to the whistle-blower’s delay in providing the information. He supplied the information after he had left the firm.
From these instances, we can understand and accept that information against crimes/criminals is top priority and crucial to bring justice in our nation. There must be true political will. The leaders must be ethical, have conscience and believe in Allah(God). We therefore cannot publicise, as occurred in a country of the Evil , where their Police “cracks down on whistle-blowers”. If that occurs, then that country is going down the drain. The True Ulama (Religious) Leaders can add that “the ways to hell include injuring both justice and those who are ethical. Others who are involved in corruption and judges who fail to give sound judgments will go down too”.
Those in positions of power actually hold heavy responsibilities. They are expected to perform their duties in the best traditions of (Integrity) Ethics and in accordance with the urgings of their true conscience.
A thought or view. (Using the mind or the eyes?)
We are filled with “anti-this” and “anti-that”. You know of anti-body and anti-pods or something that is exact opposite. We hear of anti-War and yet war rages on. We now have anti-terrorism. Terrorism continues. We have anti-piracy and piracy (at sea and on land) go on almost daily. So I think we should institute a body which can be effective .The body must be told what exactly we want it to achieve . We can call it the National Commission (to) Eradicate /Eliminate Corruption (in short: NCEC or MCEC if you insist on Malaysia!).
What is the loud and true answer?
There can be justice for victims of fraud and those who suffer by the hands of criminals if those who enforce the law and are entrusted to keep the citizens safe and secure are genuinely persons of integrity, are clearly ethical and possess conscience beyond doubts. They bring the criminals and the corrupt to justice.
Management gurus teach us Vision, Mission and (my own addition) Incision . And our Mission must not just be “anti-“. We must achieve something concrete and discernible to the public – not just “neutralise” but must eliminate or eradicate corruption. That, I put it to you, will surely place our nation on a higher moral or ethical plane.
Can there ever be justice without ethics and conscience? Many will say “No.” A few , meekly, will say “yes, maybe.” Can you live in a country devoid of ethics and conscience?