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

  1. Pingback: Remember, Review & Reclaim: My Pupillage Memories Of The Perak Crisis In Court | LoyarBurok

  2. I enjoyed your post – would you like to write some original content for my site. I’ll be in touch.

  3. Precendential Transi

    High Court judge Zabidin Diah made the correct decicion today. Justice is done!

  4. Precendential Transi

    Mohamad Ariff JC made a very good decision. But, the application by the defence team in asking for recusal of Yusoff Zainal Abideen from leading the prosecution team in Anwar Ibrahim's case was totally ridiculous! Such application should not have been made at all!

  5. Dear Mr (Ms?) Hawk,

    JC Ariff Yusof has a duty under the law to declare the facts which he declared and to ask the parties whether they would like him to recuse or otherwise. What he did was in accordance with established legal principles in respect of apparent bias and recusal (among others, the principles laid down in the Locobail and Pinochet cases). The disclosure made by him is required under the law and that was what he did. That was far from being a dereliction of his duity. In fact, it is commendable and should be the yardstick for judicial integrity in Malaysia and elsewhere.

    On a different issue, JC Ariff had no choice other than to recuse himself. There was, in his judgement – and I agree with him – a real danger of bias in the form an apparent bias. If you must know, when there is a real danger of bias, a Judge MUST recuse himself even though both parties do not ask him to do so. This is because under the law, apparent bias cannot be waived by the parties.

    The oft repeated phrase "justice must not only be done but must also manifestly be seen to be done" demands such action.

  6. M V Nathan

    Mr Bon I am with you on this score. These days I honestly think I am "riding" my luck these days. The law is so uncertain and the quality of certain judges have been down right "lacking"!

    Some days I just dread going to court mate !

  7. Mohamad Ariff JC had at the outset offered to recuse himself and proceeded to inform parties that he had acted previously for both Pas and Bn.

    I would have thought that for a judge to recuse himself, one or both parties must make an application for the judge to do so for fear of likelihood of bias. And if the judge subsequently recused himself on such an application, everybody would have understood it.

    Assuming that neither party had objected to him hearing the case, notwithstanding his past associations with either party, why then should he offered to recuse himself? It would be seen as a dereliction of judicial duty.

    The case assumes great importance because Perak is in a complete mess because of the takeover and the Government could not function. Pending the settlement of the suit, the least he could do is to maintain the status quo pre- the takeover by issuing an interim injunction.

    In a parliamentary democracy, the actual ruler is the electorate, and the electorate's supremacy is manifested in the State Constitution. Apart from this written constitutional supremacy, we have next a Legislative supremacy which can amend the constitution albeit with a 2/3 majority. Therefore the electorate's interest should be taken into primary consideration in this confusing state of affairs.

    We really need tough minded judges who could make decisions, however unfavorable it may seem to either party, based purely on facts and law without regard to other extraneous factors.