Published in AstroAwani & TheMalaysianInsight, image by AstroAwani.
In EMIR Research article, “The crux of the issue in the claim of bias by Najib’s lawyers” (April 13, 2023), it’s stated that bias by a judge (as decision-maker) can only be proven if there’s a demonstration of a link – causal or correlative – between the circumstances suggestive/indicative of a ground of suspicion which can then be connected to or shown to have some kind of influence/impact on the present situation, i.e., the case under consideration in the court.
It’s submitted that the rationale for the court in rejecting the notion of probability in favour of possibility as the test for determining or ascertaining whether or not it could be said that there was a real danger or risk of bias by the judge in the first place is because the former implies quantifying the chances (i.e., the mathematical or statistical odds) of bias whereas the latter simply asks whether the qualifying criteria have been fulfilled thereby.
To quote, bias understood as perception isn’t about “… probability which deals with a scale of, e.g., on a 1% to 100%. A high suspicion of even 60% chance of bias isn’t enough. This is because probability is reducible to subjectivity. Meaning, predisposition as a complex of psychological processes is virtually impossible to quantify”.
Predisposition (or tendency) of the judge as decision-maker to be bias is linked to probability, by default, simply because for the suspicion to be reasonable or “hold water” (valid), the reviewing judge inevitably has to, paradoxically, idealise a certain (numerical) threshold as the “target” to which the chances of occurrence must attain (like in statistics of which the term is an integral feature).
Idealisation implies and presupposes a higher standard which in turn can only be subjectively defined (by the reviewing judge imposing his/her bias/prejudice) to which the decision-maker is “estimated” to have fallen short, approximated or reached.
This was as precisely stated in the Singaporean case of Tang Kin Hwa v Traditional Chinese Medicine Practitioners Board  by Judicial Commissioner (JC) Andrew Phang Boon Leong in re-affirming Lord Goff of Chieveley’s eminent ratio decidendi (i.e., the legal principle) in R v Gough .
This means that the reviewing judge is “bound” to be drawn into inquiring about the question of the state of mind (subjectivity) of the decision-maker (in due course) – and this definitively include the question of whether the decision-maker was conscious or sub-consciously bias.
And this also means that the reviewing judge can be “compelled” (consciously or subconsciously himself or herself!) in adopting a prejudiced or jaundiced view from the beginning – a form of “semi-predetermination”.
Specifically, this is where there’s then a communicatio idiomatum (exchange of attributes) or imputatio attributorum (imputation of attributes) between the subjective (i.e., psychological capacity – e.g., personal prejudices) and objective (i.e., professional capacity – e.g., formal roles) conditions relating to the decision-maker.
A blurring and confusion of absolute distinctions.
To this we can, therefore, add as a matter of critical clarification and precision that probability (“chances”) specifically and particularly refers to the determining or ascertaining or measuring of the extent to which bias on the part of the decision-maker whose decision-making is under consideration by the reviewing judge or bench could have existed or be imputed as such.
Again, this is a matter of subjective evaluation – as one’s (i.e., the reviewing judge’s) rating of a 60% chance would differ from another (i.e., that of some other reviewing judge) to whom the odds might be 40%.
This of course applies equally or even more saliently when it’s the presiding bench that’s sitting.
Otherwise, there’s also always the element of imprecision, paradoxically speaking again, as to the “calculus” (calculation), especially in the absence of a formula (agreed or otherwise).
Hence, the route or approach of probability is “pure” or “reducible” subjectivity” throughout.
Not only is the apparent bias test one of possibility and, by extension and inclusion, objective in nature, there’s also the fundamental requirement for the reviewing judge or bench to ensure that there’s some semblance of “impartiality’ on the part of the decision-maker.
To quote the late Court of Appeal judge, Justice Datuk N H Chan, “For there to be a fair trial the judge must be fair–minded himself 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” (On judicial bias”, N H Chan, The Malaysian Insider, March 2, 2010).
What it means is that, right from the “get-go”, the very existence of the court as an institution in and of itself must be impartial and be seen (by the other two branches/organs of government together with nation and society) and regarded as such, without exception.
This presupposes and implies constitutional supremacy (in the form of the Federal Constitution), rule of law and separation of powers, no less.
Now, with the Malaysian Anti-Corruption Commission (MACC) interfering in the judiciary by way of a probe or an investigation into the professional conduct and affairs of Yang Arif Justice Dato’ Mohd Nazlan Ghazali, doesn’t this actually, paradoxically at least, compromises on the impartiality of the judiciary?
The crux of the issue is that the MACC’s interference paradoxically compromises on the very impartiality that they think they’re upholding by going beyond their remit and jurisdictional competency in probing Justice Nazlan’s conduct.
Judges would be vulnerable to the interference and, by extension, intervention in the conduct and affairs of judicial/legal proceedings, indirectly, and be put in a state of apprehension or fear.
This then compromises and undermines the impartiality of the judiciary since it’ll be constrained to be beholden and servile/subservient to the Executive of the day that’s driven by changing political agendas and ideological proclivities.
Think back to the time of the infamous Constitutional Crisis of 1988 – with the sacking of Tun Salleh Abbas and brother judges from what was then the Supreme Court.
Tun Salleh Abbas was the Lord President, i.e., the equivalent of the Chief Justice of the Federal Court today.
A truly black mark in our nation’s history.
Recall that at the heart of it all was the outrageous and disgraceful claim that Tun Salleh Abbas was biased towards Umno which was at the time in danger of being de-registered due to internal turmoil (“Tun Dr Mahathir: The Tun Salleh Saga”, Malaysian Bar, June 14, 2008)?
This resulted in the fourth Prime Minister’s successor, Tun Abdullah Badawi, making ex-gratia compensations to the sacked judges and with then Law Minister, Zaid Ibrahim making a formal and open apology on behalf of the Executive (which took place just right after the first electoral breakthrough of the opposition – at the 11th general election).
Zaid Ibrahim was quoted as saying that “… the judicial crisis has weakened our judiciary system” (“Zaid: Govt has to apologise to victims of 1988 judicial crisis”, The Star, March 23, 2008).
It’s also reported that the Law Minister stated that “[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 wield such wide-ranging and unlimited powers to investigate.
This would represent a gross constitutional anomaly of epic proportions.
Would our judges then, as a matter of responding to public confidence, be compelled to claim as coming under a “state of confessional protest” (in statu confessionis) in relation to their judgments that involve politicians or cases which are susceptible to politicisation/political manipulation?
That is, would our judges be forced to claim as acting under duress later on (e.g., upon retirement) – for fear of unwarranted and unconstitutional intrusions by external forces?
Interference into the past (or present) professional conduct of a judge (as in the case of Justice Nazlan) would then become an interference into the future.
This as a pre-empting and inhibiting and constraining the impartiality of the judiciary – given the “chilling” effect it’ll have on the professional conduct and behaviour of judges when deciding highly sensitive cases.
Thus, it’d be highly ironic, to say the least, given that the original intention for the MACC to step in and conduct an investigation was to ensure fairness by implication and necessary consequence, which inevitably and by default is grounded in impartiality due to the separation of powers under constitutional supremacy as also defining the rule of law.
But here’s the bottomline.
The very act of the MACC, an outsider and coming under the Executive no less, sticking its nose into the affairs of the judiciary constitutes a flagrant and blatant breach of such an undertaking.
The paradox of it.
Let’s see what are pre-existing arrangement in place.
Section 5 of the Judges’ Code of Ethics states that (see, “Only through reforms can justice be served”, Jason Ong Khan Lee, Malaysiakini, April 13, 2023):
“A judge shall exercise the judicial function independently on the basis of his assessment of the facts and in accordance with his understanding of the law, free from any extraneous influence, inducements, pressure, threat or interference, direct or indirect from any quarter or for any reason.”
And Article 12 of the Judges’ Code of Ethics provides for the following:
“Any complaint against a judge who is alleged to have committed a breach of any provision of this code shall be made in writing to the Chief Justice of the Federal Court”.
This is followed by Article 13 whereby it’s the “Chief Justice [who would then] determine the nature of the breach (of this code)”.
Without such an arrangement in place, in line with separation of powers and rule of law that guarantees the safeguarding of the judiciary’s independence, public confidence in the impartiality of the revered and august institution in its own right can be, paradoxically, undermined by the actions of the MACC.
The Executive would once again exercise dominance and supremacy over the judiciary, even if ever so unintended (by the ruling government of the day) which makes a mockery of the concept of separation of powers and the rule of law guaranteed and enshrined in the Federal Constitution.
In the final analysis, for the MACC to probe what essentially and wholly amounts to a question of ethical conduct (i.e., in the absence of criminal conduct) can only mean that, by implication, it’s telling judges how to behave professionally.
Once again, even where the allegation is untrue and false, this is a shuddering thought.
For what else is there to prevent an interference of a more brazen magnitude in the future especially if there were to be a change of government since a precedent has already been set?
What must be done is to restore constitutional discipline and allow the jurisdictions to get on with their respective and relevant jobs without one infringing on the other.
Then only let Najib’s defence team argue their case.
Otherwise, the defence will be arguing on the basis of an action that in effect compromises on the impartiality of the judiciary which is self-defeating/self-undermining.
Now that wouldn’t be helpful, would it?
Finally, justice must not only be seen to be done.
Impartiality must also be seen.
Jason Loh Seong Wei is Head of Social, Law & Human Rights at EMIR Research, an independent think tank focussed on strategic policy recommendations based on rigorous research.