Determining an issue of bias


JUSTICE should not only be done but manifestly and undoubtedly seen to be done. Justice, which is an end in itself, is the ultimate aim of any proceeding, administration and decision-making.

Regardless of religion, ideology or legal system, justice is the common objective of all people.

The pursuit of justice especially in law and administration led to the development of the principles of natural justice.

These principles evolved in the English legal system and were entrenched into the Malaysian legal system.

The rules of natural justice are the minimum standards of fair decision-making imposed on persons or bodies acting in a judicial capacity.

One of the main aims of the rules of natural justice is to ensure that the decision-making body adopts a procedure which is fair to all parties.

In other words, the principle seeks to achieve justice by preventing the decision from being tainted with the allegation of miscarriage of justice on procedural grounds.

In common law, the principle of natural justice revolves around two maxims, the right to be heard and the rule against bias.

These two rules, which are separate concepts governed by separate considerations, are further derived from two Latin phrases, audi alteram partem (no order should be made without hearing the other side) and nemo judex in causa sua (a man should not be a judge in his own case).

The above phrases basically refer to impartiality and fairness, which have to be enforced extensively not only in the courts of law and other quasi-judicial tribunals but also in domestic inquiries and administrative proceedings.

In relation to the rule against bias, it is important to note that justice should not only be done but manifestly and undoubtedly seen to be done.

The principles governing the doctrine of bias revolve around the Latin maxim nemo debet esse judex in causa propria sua, which means “no one ought to be a judge in his own cause”.

A person selected to conduct an inquiry should have an open mind and be neither biased against the defendant nor one who has prejudged the issues.

An adjudicator selected to adjudicate on a case must have no pecuniary or proprietary interest in the outcome of the proceeding. He must be indifferent between the parties.

If a member of a tribunal is “subject to bias” in favour of or against any party to a dispute, or is in such a position that bias must be assumed to exist, he ought not to take part in the decision or sit on the tribunal.

The principle also requires that the adjudicator must not be reasonably suspected, or show a real likelihood, of bias.

In the event that a hearing taking place or a decision being reached breaches the rules of natural justice, the person charged may seek a review of the hearing and/or decision.

The appropriate test for determining an issue of apparent bias is whether a fair-minded and informed observer, having considered the relevant facts, would conclude that there was a real possibility that the tribunal was biased.

It often becomes necessary to consider whether there is reasonable ground for assuming the possibility of bias and whether it is likely to produce in the minds of the litigants or the public at large a reasonable doubt about the fairness of the administration of justice. It would always be a question of fact to be decided in each case.

PROFESSOR DATUK SERI DR ASHGAR ALI ALI MOHAMED

Ahmad Ibrahim Kulliyyah of Laws

International Islamic University Malaysia