IN the case of Pembinaan BLT Sdn Bhd v Debessa Development Sdn Bhd decided in 2014, the plaintiff applied for the High Court judge to recuse herself from hearing and/or determining the case on grounds that her daughter was a pupil-in-chambers in the solicitors’ firm representing the defendant. The plaintiff submitted that there was an affiliation and/or relationship between the defendant’s solicitors and the judge.

It was further submitted that with such an affiliation and/or relationship, the judge was in a position of conflict of interest and/or that there was a real danger of bias so as to preclude the judge from hearing and/or determining the matter from the very outset and from continuing to hear and/or adjudicate on the matter because if the judge were to rule in favour of the defendant, the issue of whether decision was seen to be fair might be called into question.

To prevent any assertions of such a nature being cast over the judicial system and for justice not only to be done but to be seen to be done, the plaintiff contended that the judge ought not to hear the plaintiff’s case.

The judge, however, was not persuaded and dismissed the application, which was based on the ground of apparent and not real bias. The judge said:

“The test in this country… is one of whether having regard to the facts and circumstances, was there a real danger of bias on my part when I hear the plaintiff’s case. In this application, it is alleged that there is this affiliation and/or relationship between the defendant’s solicitor and I arising from the facts identified.

“The plaintiff says that this affiliation and/or relationship is such as to place me with conflicted interests and that there is a real danger of bias so as to prevent me from hearing and/or continuing to hear the plaintiff’s case.

“There is, however, no particulars, details or explanation… on what ‘interests’ are involved, how those ‘interests’, if any, would be conflicted.

“It is surely not enough for the plaintiff to require my disqualification on the mere suggestion of an affiliation and/or relationship between the defendant’s counsel and I, and thereby the [solicitors’ firm] and I, without more. It is not enough to merely set out [the facts] and then leave, almost mischievously and irresponsibly for assumption, speculation, or worse, insinuation.”

The learned judge continued:

“I have taken a solemn oath under the Federal Constitution to faithfully discharge [my duties] – that is, to preserve, protect and defend [the Constitution] – which are constantly at the forefront of all that I am and I do; equally true, is that recusal should never be exercised lightly.”

In the most recent case of Celcom (Malaysia) Bhd & Anor v Tan Sri Dato’ Tajudin bin Ramli & Ors decided two month ago on June 20, the High Court judge, pursuant to his own research, identified no less than eight Federal Court cases in which the real danger of bias test was applied. The first case was in 1999 while the last case was in 2022 in Dato’ Sri Mohd Najib Bin Hj Abdul Razak v Public Prosecutor and other appeals (No. 2).

It is also settled law that the burden to satisfy the test rests solely on the applicant.

Be that as it may, whether the test has been satisfied or otherwise in a case depends on the particular allegation of bias and the facts of that case. – August 19, 2023.

* Hafiz Hassan reads The Malaysian Insight.

* 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.