Justice must be seen to be done too, say lawyers

PETALING JAYA: In order to disqualify a judge, it must be shown that there is a real danger of bias, says constitutional lawyer Datuk Malik Imtiaz.

In responding to a question by The Star, which sought to clarify the procedure involved in disqualifying a judge, Malik said an application had to be made to the court.

“It is not necessary to show actual bias, apparent bias is also grounds. The rule of law requires not only that justice is done, it must be seen to be done,” he said.

According to Malik, the question is whether there is a real danger that the decisions of a judge might be seen to have been made for reasons outside the case.

“If an application is made, it must be dealt with as a priority,” he said.

Fortify Rights legal director Eric Paulsen said there was “no strict process”, as the judge could recuse himself or herself, or any of the parties – prosecutors or defence lawyers – can raise the issue of a potential conflict of interest.

According to Paulsen, it can also be a more formal application, filed and supported by an affidavit to explain why there is a conflict of interest or potential bias.

“A judge must be, and be seen, to be free to decide honestly and impartially on the basis of the law and the evidence, without external pressure or influence and without fear of interference from anyone,” he added.

Although a judge’s family members had a right to be politically active, he said, judges should recognise that such activities could adversely affect public perception of a judge’s impartiality.

“In any case, before the court in which there could reasonably be such a perception, it would be more prudent if the judge does not sit,” he said.

As for lawyer Andrew Khoo, he explained that the procedure was for counsel for one of the parties to ask for the judge to recuse himself or herself from hearing a case.

“A judge should recuse himself or herself if there is a real risk of bias or conflict of interest, which would raise real questions about his or her impartiality in presiding over a trial.

“The question to be considered here is whether merely having a sibling who is a member of the same political party as the accused person is enough of a link as to cast doubt on the ability of the judge to remain independent and impartial,” said Khoo.

Constitutional law expert Prof Datuk Dr Shad Saleem Faruqi said an adjudicator should be fair, impartial, free from bias and not mired in any conflict of interest situation.

“He is disqualified if he has a close, personal or pecuniary relationship with either party or the party’s lawyers or witnesses, for example, if he has received donations or awards or rewards from one party,” Dr Shad told The Star.

He is also disqualified if he has a financial interest in the outcome of the dispute, or if he has by word of mouth or with past or present conduct, expressed views favouring one party or the other.

According to Dr Shad, the alleged relationship or link that causes suspicion of bias must be sufficiently close, be real, and not too remote.

“However, even if a judge is totally impartial, but appears not to be, recusal is necessary. Justice must satisfy the appearance of justice. Judges must not only be free from bias, they must appear to be so,” he said.

He said that in a case involving a judge who had a brother who held a prominent position in a political party over which an accused person had much influence, it would create a suspicion or appearance of bias.

“Therefore the judge must, as a matter of judicial ethics, recuse himself on his own initiative. This will be the proper thing to do,” he said

However, if the challenged judge did not recuse himself, the prosecutor should apply in writing to ask the judge to withdraw, said Dr Shad.

“The challenged judge will have the discretion to rule on the motion to recuse. Alternatively, the challenged judge may transfer the motion to a disinterested judge.

“The judge’s refusal to recuse himself can be challenged by way of appeal and the appeal court will decide,” he added.