PREVIOUSLY, Emir Research stated in the case of the SRC International trial that bias of a judge can only be proven if the circumstances can be connected to the present situation.
The court rejected probability in favour of possibility to determine whether there was a risk of judicial bias because the former implies mathematical or statistical odds of bias.
The latter asks whether the qualifying criteria have been fulfilled.
Predisposition of the judge to be biased is linked to probability simply because for the suspicion to be reasonable, the judge has to, paradoxically, idealise a certain (numerical) “target” threshold.
Idealisation implies a higher standard that can only be subjectively defined, to which the decision-maker is estimated to have fallen short.
This was as precisely stated in the Singapore case of Tang Kin Hwa v Traditional Chinese Medicine Practitioners Board (2005) by judicial commissioner (JC) Andrew Phang Boon Leong in re-affirming Lord Goff of Chieveley’s eminent ratio decidendi in R v Gough (1993).
This means that the reviewing judge is bound to enquire about the state of mind of the decision-maker – and whether the decision-maker was conscious or sub-consciously biased.
This also means that the judge can be compelled in adopting a prejudiced or jaundiced view from the beginning.
This is where there’s then an exchange or imputation of attributes between the subjective and objective conditions relating to the decision-maker.
We can add that probability specifically refers to determining the extent of bias.
Again, this is a matter of subjective evaluation, as one judge’s rating of a 60% chance would differ from another, to whom the odds might be 40%.
This of course applies equally when it’s the presiding bench that is sitting.
Otherwise, there is always the element of imprecision in the calculation, especially in the absence of a formula.
Hence, the probability is reducibly subjective throughout.
The apparent bias test is one of possibility and objective in nature.
There is also the requirement for the reviewing judge or bench to ensure some semblance of impartiality on the part of the decision-maker.
To quote the late Court of Appeal judge, Justice N.H. Chan: “For there to be a fair trial, the judge must be fair-minded 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.”
It means that the very existence of the court must be impartial, and be seen and regarded as such, without exception.
This presupposes and implies constitutional supremacy, rule of law and separation of powers, no less.
With the Malaysian Anti-Corruption Commission (MACC) interfering in the judiciary through its investigation into Justice Mohd Nazlan Ghazali, doesn’t this actually compromise the impartiality of the judiciary?
The crux of the issue is that the MACC is going beyond its remit and jurisdictional competency in probing Justice Nazlan’s conduct.
Judges would be made vulnerable to the interference and intervention in the conduct and affairs of legal proceedings and be put in a state of apprehension or fear.
This then compromises and undermines the impartiality of the judiciary because it will be beholden to the Executive.
Remember the infamous Constitutional Crisis of 1988, with the sacking of Salleh Abbas and brother judges from what was then the Supreme Court.
Salleh was the lord president, the equivalent of the Chief Justice of the Federal Court today.
Black mark in our nation’s history.
Recall the outrageous and disgraceful claim that Salleh was biased towards Umno, which was at the time in danger of being de-registered due to internal turmoil.
This resulted in Abdullah Badawi making ex-gratia compensation payments to the sacked judges and then law minister Zaid Ibrahim making a formal and open apology on behalf of the Executive.
Zaid Ibrahim was quoted as saying: “… the judicial crisis has weakened our judiciary system”.
He was also reported as saying: (F)rom 1988, the judiciary’s independence was eroded and led to allegations of corruption and abuse of power”.
Are we in danger of such a scenario replaying, even on a much milder level?
Imagine a situation where all judicial protestations would be futile simply because the MACC wielded such unlimited powers to investigate.
This would represent a gross constitutional anomaly.
Would our judges then be compelled to claim as coming under a “state of confessional protest” over their judgments in political cases?
Interfering with the professional conduct of a judge would then become an interference into the future.
It is highly ironic that the MACC stepped in to ensure fairness and impartiality, but here is the bottom line.
The very act of the MACC, an outsider and coming under the Executive, poking its nose into the affairs of the judiciary constitutes a flagrant breach of impartiality.
The Executive would once again exercise supremacy over the judiciary, making a mockery of the concept of separation of powers.
In the final analysis, the MACC is telling judges how to behave professionally, which is a shuddering thought.
What must be done is to restore constitutional discipline and allow the jurisdictions to get on with their respective jobs.
Only then should Najib’s defence team argue its case.
JJustice should not only be done, but should manifestly and undoubtedly be seen to be done. – April 21, 2023.
* Jason Loh is head of social, law and human rights at Emir Research.
* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.