LAST month, a former prime minister was sentenced to jail after exhausting all his legal avenues for appeal.

In the run-up to the final verdict, a PR campaign of sorts was conducted by supporters of Najib Razak, questioning the impartiality of the sentencing judge at the court of first instance.

The reason this judge was singled out is uncertain, but his association with a financing institution related to 1MDB, some time ago, was called into play.

Later this accusation of bias came to include Chief Justice Tengku Maimun Tuan Mat herself, forcing Her Ladyship to ask those criticising to better acquaint themselves with the legal process before commenting. 

Indeed, law is a complicated subject matter where things are not always what it seems to be.

A trial is a tedious process of submission of documents and technical hearings, hearing within hearings and debates based on semantics, and points of law are sometimes as important to determine the context of facts, rather than the facts itself.  

What the public is exposed to, in the form of media reports and coffee-shop gossip, is a condensed, watered down, often misleading end-stage conclusion of a story that takes weeks, months or years of deliberation before that ending was made. 

The technicality of terms, the sheer variety of decision-making tools and techniques used, the prohibitions and conditions to be fulfilled before deciding if those tools can or cannot be deployed (called tests and bars, respectively) makes understanding those decisions, a separate skill set, one a common man, or in legal slang, the “man on the Clapham Omnibus”, unable to understand. 

To compound this problem, the legal profession and the judicial office both impose unbending restrictions on themselves on explaining these issues, either by law, or tradition.

These barriers have effectively restricted proper discussion of these topics, outside legal platforms such as through obiter dictum or a formal written discussion in the informal part of the judgment, by one judge on another case in the same or separate jurisdiction through academic discussions on points of law in faculties, or in parliament committees that try to weave interpretive text to help judges interpret the laws that they enact.  

Yet the desire to comment on these things are understandable.  

Everyone is born with the innate nature to see justice done, that is the very basis of natural law.

But what the public may not understand is that, these trite laws, interpreting laws and even sentencing, are not decided solely by one judge, even if he or she sits alone in passing that judgment. Judges are bound by many things – including laws, political discussions around laws, previous judgments of parallel courts, judgments from superior courts, and to a lesser degree, judgments from outside jurisdictions and academic opinion.   

To deviate from these, the judges would need to justify their reasonings in the ratio decidendi part of their judgments.  

So, what constitutes bias in the courts and when should judges recuse themselves from hearing a case? 

The legal reasoning resides in the legal maxim “nemo judex in causa sua” or no one should be a judge in their own cause.

There are two types – actual and apparent. Actual bias infers that the judge had or will have profit of some sort from the person or company he or she is passing judgment on.

Apparent bias is harder to prove and more circumstantial in nature.

Both forms of bias raise doubt on the second leg of the judicial bias test set forth by Lord Hewart CJ in R v Sussex Justices. – September 14, 2022.

* Emmanuel Joseph firmly believes that Klang is the best place on Earth, and that motivated people can do far more good than any leader with motive.