JUDGE IN HIS OWN CAUSE

A depiction of Bao Zheng, the cultural symbol of justice in Chinese folklore who was known for his uprightness, including the act of sentencing his own uncle! Source: shorturl.at/wxBF1

Introduction

Assume you had a conflict with your neighbour. You brought the case to court. You thought you had a strong case. You believed you would win the case. However, you soon discover that the judge hearing the case is your former love rival. What would your reaction be?

The scenario described above is entirely fictitious. Any resemblance to real-life events or people is purely coincidental. Indeed, judicial impartiality is a critical component of justice. We frequently expect our judges to be, above all, impartial arbiters who resolve disputes according to the law without the influence of bias or prejudice. Yet, it is also important to note that judges, much like the rest of us, are individuals shaped by different cultural, economic, and personal experiences. They may participate in extrajudicial activities that influence their opinions. They may have strong feelings about legal issues on which they must decide. They may have feelings for the lawyers, parties, or witnesses who appear in front of them. Accordingly, can we confidently claim that a judge will be able to maintain his impartiality, free of fear or favour, in deciding every case he hears?

Codes of Ethics

In this context, the Judges' Code of Ethics 2009 and the Judicial Officers' Code of Ethics 2019 prohibit a judge or judicial officer from impropriety and the appearance of impropriety in all judicial activities.[1] This includes the following:

1. to allow any relationship to influence his judicial conduct or judgment;

2. to lend the prestige of his judicial office to advance his or others’ private interest; and

3. to convey or permit others to convey the impression to any person that they are in a special position to influence him.

Accordingly, there is a presumption that a judge who has already been sworn to administer justice will act impartially.[2] Yet, absolute neutrality is, sadly, a chimaera.[3] That might be seen in a Utopian or Kantian society, but in reality, the aspiration remains just that: an aspiration. This, nevertheless, does not prevent us from working to reduce bias and prejudice in our legal system. We are not advocating for absolute neutrality; rather, we expect that the judges maintain the highest level of impartiality that is mortally possible. In the famous words of Lord Hewart CJ (as His Lordship then was),[4]

"…not only must Justice be done; it must also be seen to be done…"

To that end, if the judges believe they may have a conflict of interest, or that they might be biased, they should recuse themselves from hearing the case. Such a non-participation is referred to as a "recusal".

Recusal

When a recusal is sought, the judge must deal with it immediately by assessing which circumstances will disqualify him. Thus, a recusal can be viewed as such: you tell the judge, "My Lord, we submit that it is in the interest of justice that My Lord recuse from hearing this case." And the same judge will decide whether or not recusal is necessary. The pertinent question here is, when can a judge be recused?

It should be noted that a recusal can occur on the judge's own motion even before any objection is raised by either party. Typically, this happens in an “automatically disqualifying” situation, such as when the dispute before the judge involves a member of his family or someone close to the Lordship. In fact, Section 7(2) of the Judges' Code of Ethics 2009 and Section 6 of the Judicial Officers' Code of Ethics 2019 prohibit a judge or judicial officer from participating in the determination of a case in which any member of the judge's family represents a litigant or is otherwise associated with the case.

At the risk of sounding trite, a judge may be disqualified from sitting as a judge for one of two grounds. First, there is a direct or pecuniary interest in the subject matter. The term "pecuniary" here refers to money. In R v Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No 2),[5] a judge was disqualified from presiding over the appeal because His Lordship was the director of a charity closely connected to a party to the said appeal and sharing the latter's objects. This is an example of direct or pecuniary interest.

The second ground to recuse a judge is the bias in favour of or against one side. This is something more subjective than the first ground, and it is frequently at the heart of a dispute.

Bias

It should also be noted that, to recuse a judge, one only needs to show that there is a real danger of bias. There is no need to prove the actual existence of bias. On page 668 of Regina v Gough,[6] Lord Goff stated:

“…In my opinion, if, in the circumstances of the case (as ascertained by the court), it appears that there was a real likelihood, in the sense of a real possibility, of bias on the part of a justice or other member of an inferior tribunal, justice requires that the decision should not be allowed to stand…”

This summed up the essence of the "real danger of bias" test. This test was first seen in Malaysia in Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasama-Sama Serbaguna Sungai Gelugor dengan tanggungan,[7] and it was later confirmed in Mohamed Ezam bin Mohd Nor & Ors v Ketua Polis Negara[8] and Dato' Tan Heng Chew v Tan Kim Hor.[9]

It is also trite that a test of “real danger of bias” is not the same as a test of “danger of bias” or “danger of real bias.” The latter two appear to impose a lower standard for recusing a judge by requiring ANY possibility of bias or real bias. In fact, the correct test of “real danger of bias” requires a higher threshold.[10] Thus, supposition or speculation is insufficient to infer the real possibility of bias; there must be circumstances that would lead a reasonable person to believe that the tribunal would or did unfairly favour one side over the other.

Real Danger of Bias

Several cases can be used to help visualise the position here. Malaysian courts have ruled that the following circumstances do not constitute a real danger of bias:

1. where the judge and counsel were previously partners in a law firm: see Glomac Resources Sdn Bhd v Majlis Agama Islam Wilayah Persekutuan & Anor;[11]

2. where a person previously criticised the now-presiding judge and the judge did not respond or cited the person for contempt: see Menteri Hal Ehwal Dalam Negeri v Raja Petra bin Raja Kamarudin;[12]

3. where a judge had previously heard the litigant's case, but the facts of that case differed from the facts of the present case: see Menteri Hal Ehwal Dalam Negeri v Raja Petra bin Raja Kamarudin;[13] and

4. where a judge had advised the defendant to reconsider proceeding with its counterclaim: see Residence Hotel and Resorts Sdn Bhd v Seri Pacific Corp Sdn Bhd.[14]

The situations described above are by no means exhaustive. And they are by no means intended to be conclusive. In fact, each case should be decided on its own facts.[15] The ultimate litmus test remains whether a reasonable and fair-minded person sitting in court with all relevant facts would have reason to suspect that a fair trial would be impossible.[16]

In this context, a recusal application must not be allowed too readily.[17] It is irrational to demand that the judge recuse himself when the Lordship's relationship with the litigants, counsel, or witnesses is trivial or negligible. Perhaps the world isn't so big after all. Malaysia is a small country. The fraternity is a small circle. The judges may know, or even befriend, the practitioners who appear in court. Those who worked at the AGC before being appointed to the bench are a good example. Is it a must for them to recuse themselves every time they see an old colleague? Doesn't that sound ridiculous? Unless there are other indications of bias, a judge's friendship or previous working experience should not be considered sufficient grounds to recuse him or her. Otherwise, we may not have enough judges to hear the cases!

Conclusion

In conclusion, natural justice requires that the judge be recused from the proceedings if there is a substantial conflict of interest or real danger of bias. Recusal does not in itself imply that the judge in question is biased. Enough to say, reasonable people might believe His Lordship did. In light of this, a judge should notify parties of any relationship that may give rise to bias as soon as that relationship is noticed.

Furthermore, while it is critical that justice be seen to be done, it is also critical that judges discharge their duties to sit without succumbing too easily to suggestions of bias. Otherwise, it will encourage parties to believe that by seeking the disqualification of a judge, their case will be heard by someone who is thought to be more likely to rule in their favour. Any cavalier filing of a recusal application on superfluous or flimsy grounds should be considered as bordering on contempt of court.

Disclaimer:

This article does not and is not intended to constitute legal advice; instead, all information, content, and materials available in this article are for general informational purposes only. The author makes no representation as to the correctness or completeness of any information contained in this article, and the author shall not be liable for any errors or omissions contained in this article. The author assumes no liability for any losses, injuries, or damages resulting from the viewing or use of any information contained in this article.

[1] Section 6(2) of the Judges' Code of Ethics 2009 and Section 4 of the Judicial Officers' Code of Ethics 2019. The Judges' Code of Ethics 2009 governs judges, whereas the Judicial Officers' Code of Ethics 2019 governs judicial officers such as Sessions Court Judges, Magistrates, and presiding Registrars. [2] Hock Hua Bank (Sabah) Bhd v Yong Liuk Thin & Ors [1995] 2 MLJ 213, CA. [3] South African Commercial Catering Workers Union v. Irvin & Johnson Ltd. [2000] 3 SA705, CC. [4] R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256, DC. [5] [1999] 1 All ER 577, HL. [6] [1993] AC 646, CA. [7] [1999] 3 MLJ 1, FC. [8] [2002] 1 MLJ 321, FC. [9] [2006] 2 MLJ 293, FC. [10] Public Prosecutor v Tengku Adnan bin Tengku Mansor [2020] 5 MLJ 220, FC. [11] [2016] 9 MLJ 584, HC. [12] [2009] 4 MLJ 484, FC. [13] ibid. [14] [2014] 10 MLJ 413, HC. [15] Residence Hotel and Resorts Sdn Bhd v Seri Pacific Corp Sdn Bhd [2014] 10 MLJ 413, HC. [16] Wong Kie Chie & Ors v Kathryn Ma Wai Fong (as the personal representative, executrix and trustee of the estate of the late Wong Kie Nai) & Anor and other appeals [2017] 3 MLJ 350, CA. [17] Deleum Primera Sdn Bhd v Mazrin bin Ramli & Ors [2021] MLJU 484, HC.