Bias, Public Perception and Recusal: Judicial Consistency at LAST?

One certain lesson we learnt at law school was that the law must be certain. The law must apply and be applied across the board fairly. Lawyers should be able to make a good assessment of the case based on the prevailing law, and be able to advise their clients accordingly. Uncertainty in the interpretation and application of the law creates a sense of arbitrariness. When this happens, public confidence in the justice system will plunge.

We are seeing this happen in Malaysia. Ask any good lawyer today, and hear if this is true – Malaysian lawyers are not able to honestly and with certainty advise clients whether the legal arguments to be taken in court will result in the outcome according to the law textbooks or case precedents. And thus, lawyers have to ride our “luck” these days.

Take the question of recusal or disqualification of judges for perceived or actual bias. The question has not always received a consistent answer.

In PP v Mohamed Ezam Mohd Nor [2001] 8 CLJ 558, Abdul Wahab Patail J recused himself because His Lordship’s brother was the head of prosecution and signed the charge against the accused.

Public perception was important here, although the learned Judge said that as a matter of fact, His Lordship would not be biased.

In Mohamed Ezam Mohd Nor & Ors v Ketua Polis Negara [2001] 4 CLJ 701, the Federal Court decided that Augustine Paul J (as His Lordship then was) was correct not to have recused himself because there was no “real danger of bias” for His Lordship to hear the Reformasi habeas corpus applications despite His Lordship having earlier convicted DSAI. In the High Court, Paul J said:

Just as it is improper for a judge to hear a case when there may be a reasonable perception of bias if he hears the case it is equally wrong for him to disqualify himself from hearing a case when there are no such grounds to do so. As a matter of fact it would be a gross dereliction for a judge to disqualify himself when there are no grounds. Accordingly, I dismissed the application.

Public perception wasn’t that important. There was insufficient evidence to establish a real danger of bias on the part of the Judge.

In Bumicrystal Technology v Rowstead Systems Sdn Bhd [2004] 6 CLJ 85, Mohamed Apandi Ali JC (as His Lordship then was) refused to recuse himself even though one of the parties was owned by the PAS-led Government of Kelantan, and His Lordship was previously a legal adviser for UMNO and stood as an UMNO candidate in the General Elections in 1990. (I understand that this decision was subsequently reversed, and the matter heard before another Judge.)

When the learned JC made the decision, public perception didn’t feature prominently. Past political association was not to be a disqualifying facet. No real danger of bias existed.

In the recent Raja Petra Kamaruddin appeal in the Federal Court, the Court too felt that public perception of bias would not disqualify Augustine Paul FCJ.

In the Perak MB suit however, Mohamad Ariff Bin Md. Yusof JC gave greater weight to public perception and recused himself. His Lordship had previously advised PKR and PAS on several matters and stood on a PAS ticket in the General Elections in 2004. While recognising the constitutional oath of a Judge/JC and there being no allegation of partiality, the learned JC nevertheless held in His Lordship’s judgment as follows:

I am of the view that any decision to recuse in the present circumstances is best rooted in first principles of justice. I had highlighted this point on the first mention date. The primary concern must be that justice must manifestly be seen to be done. Not just be done but, I stress manifestly so. The objective fact is my sitting has courted controversy, whether rightly or wrongly. That counsel’s conclusions can be so opposed, although applying the same principles, is an added testimony to this objective fact. This is where the valuable commentary in the authority cited by learned senior counsel for the applicant becomes highly relevant as the proper practice to be followed: “However, where the interest is more than minimal or when his association with a party, witness or counsel might give rise to the appearance of impropriety, of unfairness or bias, he will disqualify himself and not leave the matter dependent upon whether or not the parties will raise objections.”: “Judges on Trial” (supra)

I think that this is a decision we can live with, and little can be said by way of critique. It is well-reasoned.

If only the Judiciary will now be consistent in the application of recusal principles to judicial and prosecutorial disqualifications.

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Life's a sufferance. Lawyering a bore. As Edmund continues various escape techniques to be rid of Lord Bobo’s influence, he crusades with UndiMsia! movers to build strange youth love movements around the country. And so he tweets @edmundbon and practises the black magic art of advocacy at

Posted on 2 March 2009. You can follow any responses to this entry through the RSS 2.0.

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