An Independant Judiciary in Malaysia

It is quoted by the judge in the case of Allinson v General Council of Medical Education & Registration that “any person who is to take part in a proceeding should not be in a position that might be suspected of being bias”. From here we see that the reason underlying is to protect the judiciary and indirectly to promote impartial justice under the law by the judiciary. It is stated in the case of Menteri Hal Ehwal Dalam Negeri v Raja Petra bin Raja Kamarudin where the court in this case establishes one of the test of bias and partiality in Malaysia.

This case is regarding the application to recuse judge from sitting on panel of appeals where the respondent in this case had been critical of judge in his website. The respondent argued that the judge should be precluded from hearing a case as he had in the past heard another case against the respondent. The issue in this case is whether there was ‘real danger of bias’.

The court in this case dismissed the case and held that it was the respondent who was critical of Augustine Paul FCJ in his website and there was no response by the learned judge against the criticism. The respondent was also never cited for contempt for the criticism. Further, a judge is not precluded from hearing a case against a person when he had in the past heard another case against the person if the facts in the cases are different. On the question of judicial bias, the law in this area is settled.

The test is premised on the ‘real danger of bias’. In this case, the court was urged to recuse the learned Augustine Paul FCJ from being one of the panel members to hear the appeals on the grounds that the respondent had been critical of the learned judge in his website and that there might be a real danger of bias on the part of the learned judge if he sat on the panel to hear the appeals. The judge stated that on question of judicial bias, the test is that there must be a real danger of bias which could be found in the circumstances of the case.

It must be shown that there should be a possibility rather than probability of the judge to be bias and it must also be shown that the judge does not act in a manner that promotes integrity and impartiality. It is also stated in the case of Ismail Zakaria v Public Prosecutor, where in this case the accused/applicant a chief executive officer of a bank was charged with four principal charges under the Banking and Financial Institutions Act 1989 and four alternative charges for criminal breach of trust under s 409 of the Penal Code . In 2004 (after the prosecution closed its case), both parties filed their respective submissions in court.

In 2007, Puan Khadijah Idris, the presiding sessions court judge (‘the judge’) in the case until this time, was appointed as treasury solicitor in the Ministry of Finance. In 2007 when the judge called the applicant to enter his defence, the defence applied for a written judgment and thereafter dates were fixed for the continued hearing of the defence case. In January 2008 at the date of the continued hearing, the applicant applied to the judge to recuse herself from the case on the basis that she was the treasury solicitor and therefore an officer subordinate to the attorney general, who sanctioned his prosecution.

The judge then instructed the applicant to file a written application for recusal. At this hearing, the applicant submitted that the judge was unsuitable to continue presiding over his case because she was in a position of conflict as the duties of a judge presiding in a criminal case and those of a treasury solicitor, who is required to provide legal advisory services to the Ministry of Finance and the Central Bank of Malaysia, were different and totally irreconcilable.

As such, the applicant contended that if the judge continued to hear the case, there was a danger of bias and therefore he may not receive a fair and impartial trial. When the judge dismissed the application for recusal, the applicant filed this notice of motion supported by an affidavit. The matter was therefore taken on revision before the High Court to determine whether the judge’s dual role as treasury solicitor and presiding judge will give rise to a real danger of bias on her part not to act fairly or impartially in the applicant’s criminal trial.

The judge in this case dismissed the notice of motion, stating that the real test to be applied in dealing with the issue of judicial bias is the real danger of bias test. Upon considering the facts of the present case, it was found that the applicant had failed to prove that there was any real danger of bias on the part of the judge if she continued to hear the applicant’s trial to the end.

In her role as treasury solicitor, the judge handles only policy matters at the Ministry level and as such, was not involved in the evaluation of evidence for the purpose of prosecution. As such, it was too remote to conclude that the judge was in a position of bias by virtue of her being a Treasury Solicitor. The court had clearly given direction to all courts below that when dealing with the issue of judicial bias involving an officer from the judicial and legal service, the paramount consideration for the court to consider is whether there is any real danger of bias.

Thus, in the present case, the holding of a dual role, that is as an officer in the attorney general’s chambers and as a sessions court judge did not automatically disqualify the judge or put her in a position of conflict from continuing to hear a case which was begun when she was a judicial officer. Therefore in the circumstances, it is explained that the court should not exercise its revisionary powers in this case as there were no cogent reasons for it to do so.

In fact, the judge was the best person to continue hearing the case after having heard it from the beginning From the cases above it would seem that what is more important here is whether there is any real danger of bias on the part of the judge if he or she is to continue hearing the case. This is the paramount consideration for the court to consider. The test can be seen as one of the steps to promote an independent judiciary and hence established an impartial justice under the law. ——————————————– [ 1 ]. [1894] 1 QB 750 [ 2 ]. [2009] 4 MLJ 484 [ 3 ]. [2009] 8 MLJ 776.