NH Chan : The difference between justice and duty

When High Court judge Justice Mohamad Zabidin Mohd Diah rejected Anwar Ibrahim's application to recuse himself, this was his justification: (as quoted by the Star)

"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."

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:

"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."

Strict impartiality essential

Hastings also mentioned in the same book a fine example of what a judge should be - Lord Reading. He regarded the latter as the "best Lord Chief Justice I have ever known".

"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," wrote Hastings in the aforementioned autobiography.

In contrast, if Lord Reading was the yardstick for fairness and impartiality, you could not look but askance at Malaysian judge Mohamad Zabidin who did not even know the difference between fair play and duty.

Karpal Singh (left) 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 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 Karpal'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 grounds 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.

Judicial bias explained

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:

"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."

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."

Too easy to denounce bad judges

Now back to the present subject of discussion.

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 - Karpal 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."

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.

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.

From 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 the opposition won in the next general election, then we could get rid of all the bad apples through Parliament.

article written by NH CHAN who was admitted to the Bar in 1961 and was a lawyer for almost two decades before becoming a High Court judge. He was then elevated to the Court of Appeal before retiring in 2000. He is the author of two books, 'Judging the Judges' (2007) and 'How to Judge the Judges'. Courtesy of Malaysiakini.