Bias, and Why It Is So Easy to Expose a Judge for Incompetence

The headline in The Star, Friday 19 February 2010 declares:

“I won’t step down, says Judge”

“Anwar’s application to disqualify him rejected”

KUALA LUMPUR: High Court judge Justice Mohamad Zabidin Mohd Diah yesterday rejected Opposition Leader, Datuk Seri Anwar Ibrahim’s application to recuse himself from further hearing the sodomy trial.

“If I recuse myself in such circumstances, it will mean I am running away from my responsibility as a judge. A judge who has taken an oath of office should not evade from carrying out the duty which has been entrusted upon him.” he said.

He said the facts must show a reasonable man would think there was a possibility the judge would make his decision not based on the evidence adduced in court but on other considerations.

What utter nonsense is this judge talking about? He is confusing the duty of a judge with what is judicial bias. The epitome of justice is the fair trial, and the duty of the judge is to do justice according to law. These are the twin pillars of justice – the fair trial, and the duty to apply the law of the land as it is. These are separate entities. Together, they are what the rule of law is all about.

For there to be a fair trial the judge must be fair-minded himself and in a court of law he must exude an appearance of impartiality – for justice must not only be done, it must be seen to be done. In his Autobiography Patrick Hastings (one of the great advocates of his day before and shortly after WW2) wrote, p 134: “There is one essential feature in every trial that is only too frequently forgotten. In the interest of the community the one matter of importance is that all parties should be satisfied that they have had a fair and impartial trial.”

I wrote in the Preface to the First Edition of my book on judging the judges:

So often, we have heard the judges, and this also includes the highest rank amongst them, scoff at the people who criticized them for being unfair or corrupt or biased by saying that the complaints against them were the rants of the losing party. For the judges to regard the complaints against them with derision is, to my mind, a poor excuse for judicial incompetence. The aim of the book is to remind the judges that the community in which they serve expects them to dispense justice so that no litigant would leave the court in which they preside dissatisfied with the conduct of his trial. The one matter of importance is that all the parties, even the losing party, should be satisfied that they have had a fair and impartial trial.

An outstanding example of what a judge should be was Lord Reading; see Patrick Hastings’ Autobiography, p 134:

Lord Reading was by far the best Lord Chief Justice I have ever known. True, he had every possible advantage. A magnificent appearance and a beautiful voice were perhaps the least of his judicial attributes. His real claim to recognition during the period of his office as head of the King’s Bench Division lay in his inflexible determination that no litigant should leave his court dissatisfied with the conduct of his trial. No one has ever left Lord Reading’s Court who could raise one word of complaint against the presiding judge. His courtesy, his strict impartiality, above all his obvious determination that fair play as English men and women understand it should be maintained from beginning to end left an undoubted mark upon the Courts during his period of office, and on which I sincerely hope will never be effaced.

In contrast, you can measure with Lord Reading as the yardstick for fairness and impartiality against the inane Malaysian judge Mohamad Zabidin Mohd Diah who did not even know the difference between fair play and duty, and, that these are two separate attributes of being a judge.

I have gleaned the following remarks from Malaysiakini, the Internet news portal:

Lawyers representing the Opposition Leader had since last week complained over the unfair coverage by the local media.

They had sought the judge’s recusal over an alleged bias in dismissing Anwar’s application to cite or caution Utusan Malaysia over its unfair coverage.

This was followed by this headline from Malaysiakini:

“Anwar files appeal over judge’s non-recusal.”

Feb 19 – Anwar Ibrahim today filed a notice of appeal against a court’s refusal of his application to recuse trial judge Mohamad Zabidin Mohd Diah from hearing his sodomy trial.

…

Yesterday, in dismissing the opposition leader’s recusal application, Mohamad Zabidin ruled that there was no reason for him to recuse himself from continuing to preside over the case, saying that if he were to do that, it would be tantamount to running away from his responsibility.

He said a judge was bound by his oath and should not run away from responsibilities entrusted upon him.

The judge set March 25 for mention of the sodomy trial, pending the disposal of the appeal.”

A previous headline in Malaysiakini reads:

“Refuses to cite Utusan for contempt”

On Feb 8, Anwar filed the application on the grounds of bias after Mohamad Zabidin refused to entertain requests by Anwar’s lead counsel Karpal Singh to cite Utusan Malaysia for contempt. Anwar, 63, who is PKR advisor and member of parliament for Permatang Pauh, is charged with sodomising Mohd Saiful Bukhari Azlan, his former aide, at Unit 11-5-1 of the Desa Damansara Condominium in Jalan Setiakasih, Bukit Damansara, between 3.01pm and 4.30pm on June 26, 2008.

The sodomy trial started on Feb 3 and the defence was to have cross-examined Mohd Saiful when Karpal made the application for recusal.

In such a situation, what should a fair-minded judge do? As the late Sir Patrick Hastings KC observed in his Autobiography, p 134: “There is one essential feature in every trial that is only too frequently forgotten. In the interest of the community the one matter of importance is that all parties should be satisfied that they have had a fair and impartial trial.”

Mr Karpal Singh had sought the judge’s disqualification over an alleged bias in dismissing Anwar’s application to cite or caution Utusan Malaysia over its unfair coverage of the trial. Surely that is not too hard a request? The least any judge would have done is to caution Utusan Malaysia over its unfair coverage of the trial. Otherwise, one party would be dissatisfied that they have had a fair and impartial trial.

Instead this judge gave short shrift to Mr Karpal Singh’s application. Not only did he refuse to disqualify himself, he gave the wrong reason for it. He said the facts must show a reasonable man would think there was a possibility the judge would make his decision not based on the evidence adduced in court but on other considerations. But what has the evidence got to do with the question of judicial bias?

The fact that the judge knows next to nothing about judicial bias, as in this case, is a ground for setting aside the conviction had the judge found Anwar Ibrahim guilty at the end of the trial. This is because he had never considered whether there was a real likelihood or danger of bias. This issue was never considered because this judge did not know the law on judicial bias.

The best explanation of the law on judicial bias is that given by Lord Denning MR in Metropolitan Properties Co (FGC) Ltd v Lannon [1969] I QB 577. An extract of the speech can also be found in The Discipline of Law, p 86:

I ought also to speak of the disqualification of a person from sitting. If a disqualified person takes part in a decision, it is a nullity and void. The point came up for decision in Metropolitan Properties Co (FGC) Ltd v Lannon. Mr Lannon was the Chairman of a Rent Assessment Committee. He was a solicitor. One day the Freshwater Company made an application to his Committee. He sat on it. But it was discovered that his father had a case pending against that Company. On that ground he was disqualified. I said:

“A man may be disqualified from sitting in a judicial capacity on one of two grounds. First, a ‘direct pecuniary interest’ in the subject matter. Second, ‘bias’ in favour of one side or against the other.

…

So far as bias is concerned, it was acknowledged that there was no actual bias on the part of Mr Lannon, and no want of good faith. But it was said that there was, albeit unconscious, a real likelihood [use “danger” – our Federal Court prefers the word “danger” rather than “likelihood”. They think they know English better than Lord Denning.] of bias. This is a matter on which the law is not altogether clear: but I start with the oft-repeated saying of Lord Hewart CJ in R v Sussex Justices, ex parte McCarthy: “It is not merely of some importance, but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

But to show that there was a real likelihood or danger of bias, there must be circumstances from which a reasonable person would think it likely or probable that the tribunal would, or did, favour one side unfairly at the expense of the other. This is how Lord Denning explains it in The Discipline of Law, at p 87:

Surmise or conjecture is not enough. There must be circumstances from which a reasonable man would think it likely or probable, that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The court will not enquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: “The judge is biased.”

Applying these principles, I ask myself: Ought Mr John Lannon to have sat? I think not. If he was himself a tenant in difference with his landlord about the rent of his flat, he clearly ought not to sit on a case against the selfsame landlord, also about the rent of a flat, albeit another flat. In this case he was not a tenant, but the son of a tenant. But that makes no difference.

With that short explanation Lord Denning has, in a few short paragraphs, explained to us the law on judicial bias.

Now back to the present subject of discussion. Utusan Malaysia is an UMNO newspaper; it is essentially a pro-government paper. Anwar Ibrahim applied to the judge to cite Utusan Malaysia for contempt or to caution Utusan Malaysia over its unfair coverage of his trial. The judge refused the request by Anwar Ibrahim.

Karpal Singh then applied for the judge to disqualify himself for bias. These are the circumstances from which a reasonable man would think it likely or probable that the judge would, or did, favour the UMNO backed government unfairly at the expense of the accused Anwar Ibrahim who is the leader of the opposition.

In such a situation the court will not enquire whether the judge did, in fact, favour the prosecution unfairly against the accused Anwar Ibrahim. Suffice it that reasonable people might think the judge did. The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking, “This judge is biased”.

Applying these principles, it does not matter whether the judge did, in fact, favour one side unfairly against the accused, Anwar Ibrahim. It is sufficient if reasonable people think the judge did side with a pro-government newspaper by not moving against it – Mr Karpal Singh would have been satisfied with a rebuke and apology. Yet, the judge turned down such a simple request. The fact that the newspaper is not government-owned makes no difference. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: “The judge is biased.”

Why I say it is so easy to expose our judges for incompetence – but this can only happen in Malaysia.

It is so easy in this country to denounce a judge as a bad judge. This case is a classic example. The judge did not know the law on judicial bias while the rest of us ordinary people, who have been apprised of the law by this article, know what judicial bias means. We could easily say, as right-minded people would say, “This judge is biased”. Otherwise, the judge should have ticked off Utusan Malaysia. Had the judge done that, there would not then be an application by Mr Karpal Singh for the judge to disqualify himself.

But only in this country can one find incompetent judges. You don’t find mediocre judges in Singapore or elsewhere in a common law country. It is not possible to fault a Singaporean judge for incompetence because he knows the law. The moral of this unsavoury episode is this: if you appoint mediocre lawyers to the Bench you will get substandard judges. The solution to this problem is a simple one. Appoint judges from the cream of the legal profession and you will not find me assailing the judges for incompetence simply because I will not be able to do so. It is only when we have fools on the bench that I can point out that what they have decided is not the law.

At the present time and judging by what we have experienced so far from the Perak takeover cases, the quality of most of our judges is suspect. In the meantime what should we do with so many bad apples in the barrel? If only there could be a change in government in the next general elections with the opposition winning by a landslide. Then we could get rid of all the bad apples by Act of Parliament.