Truth responsibility

In my Theory R hypothesis, while truth and its revelation define the first R, the second R is all about responsibility and the human ability to assume full accountability for such self-governance. Someone once called this ‘one’s ability to respond’ or ‘response-ability’.

But what really do we respond to?  My answer would be, ‘truth.’ Michael Polanyi calls it personal knowledge of truth; it is the personal experience of a truth matter. Once known, one chooses to stand with conviction for such a truth, regardless of consequences. It provides moral audacity for truth seeking!

There is currently a debate sparked by former Chief Justice Mohd Dzaiddin Abdullah (left) over the issue of how and why the judiciary became impotent after the 1988 crisis when the chief justice then was sacked. I am glad that we can all review the subject now while many of the player-actors are still alive. May truth of the matter therefore become revealed.

Our former chief justice blamed our infamous PM for the mess, but constitutional lawyer Abdul Aziz Bari has qualified that the judges themselves were equally to blame “because it is for the judges to do something to rectify the problems and weaknesses of the constitution”, sometimes called ‘judicial activism’.

To me the issues arise directly and pointedly from our human ideals of authority, responsibility and accountability. What or where is our ultimate source of power, from which originates all this authority and power? If one believes it is from the Almighty, then there should really be no need for any human fear in dealing with truth matters of the constitution, or to seek the rule of law on earth. Eternity will also equally judge each of us for the same.

In fact, Article 3 of our federal constitution reads that it is the ‘supreme law’ of the federation. And, who else is given the authority and responsibility to review and interpret this, other than the judges? The legislature of the day can make amendments, when necessary with requisite authority and due process but without an internal discordance. The integrity of the federal constitution cannot be compromised, as a whole.

What then is the primary basis of all such reading and interpretation of the law?  It is all constrained within this ‘document of destiny,’ as Prof Shad Saleem Faruqi (left) calls it. One is free, presumably, to refer to other legal opinions and even seek spiritual guidance before coming to such a conclusion. Mostly however, one relies on reasonable logic, relevant precedence, and one’s own clear conscience on the matter.

Therefore, all such truth seeking by judges regarding the impotence of the judiciary should be driven by their conviction and desire for the truth of the matter within such a debate. One must therefore assume full responsibility and not blame others. Any judgment is always an effort at truth-approximation, and never the absolute truth of a matter.

Question of authority

While it is true that, in any large system, there are many layers of decision making and many and different forms of influence, my question to our judges is, are they are really constrained by any factor other than their own conscience and legal training? To me, there really and truly is no more absolute power than that of judge’s allowance to reason and make a case for any judgment. And, on this matter, our constitution is a unique and particular kind of a document that defines our destiny.

Therefore, all judgments of conscience-seeking decision making also move the authorship from one of ‘ownership of the decision’ to one of ‘stewardship’ of the same. The reason is simple. There will always be another judge and another case which may seek to review one’s decision, if it is not really the whole truth of that matter yet.  

That is also why it is called a judgment, is it not? No judgment is absolutely right or wrong, as we are daily reminded by watching a game of football. It is nevertheless the absolute right of a referee to make that call; and it is accepted as the ‘approximate truth of the matter in that given time and space’, often without the aid of technology.

The difference between authority and responsibility is therefore this. Firstly, there are two kinds of authority; moral and legal. Legal authority allows the incumbent designated for the role to act in volition on matters under their jurisdiction. It is always their judgment. It is usually some kind of delegated power, authorised by legislation. Moral authority usually has its foundation in spiritual knowledge of truth or wisdom. Her truth is defined in eternity.

For example, Christians believe that Jesus had moral authority on earth, when he walked the earth. But, the more important question is whether he had legal authority over the earth. And, it is rather obvious he had none. Otherwise he would not have been put to death by the Roman authorities under the claim of the jurisprudence of Jewish law. But, for keen observers, it is also evident that he had some kind of moral and spiritual authority in the world, from the way he dealt with the spiritual and natural worlds.

Now, premised upon this notion of moral and legal authority, did Dr Mahathir Mohamad have legal authority to instruct judges to do his bidding? Even Article 121, as amended, did not give such authority, as the constitution was designed with the principle of separation of powers as sacrosanct, to begin with. Did he then have moral authority to ‘guide’ decision making? I suppose he would, if he could.

Now, how could he have done that with, for example, a judge like Mohd Suffian Hashim? Could any prime minister for that matter? I am sure we have judges today of the same calibre and conviction who will not move under anybody’s bidding!

Maybe the more important question is why the judicial system was so ‘bastardised’ with the VK Lingam case and the full effects of the report of royal commission of inquiry. My simple answer is that some judges in Malaysia appear to be influenced by matters other than legal conscience and opinion. Obviously, some could be purchased much like Judas Iscariot was!

Yet others, I suspect, were influenced by the fear of the negative consequences of their unpopular action, as was the Roman governor. That is debilitating fear which can overcome most humans at some points of important decision making. History records many such actions.

In conclusion then, in my humble view, there are obviously judges who were ‘influenced by the system’ whether by monies or by simple fear, such that they did not follow their conscience when it mattered the most. But their curse is that they will carry this guilt and awareness to their graves.

My Professor, Amitai Etzioni, a sociologist and economist wrote a book entitled ‘The Moral Dimension: Towards a New Economics’. In it he defines the difference between power and influence: power refers to one who uses authority and laws to influence; the moral uses other human factors of influence.

I propose that Mahathir did not do the former but may surely be guilty of the latter. May God guide Malaysia out of this judicial impotency!