Should judge recuse himself from Najib’s case?

It is imperative that the conduct of the case at all levels be above reproach, such that the common man will remark: 'The judge has been fair.'

COMMENT

By Muhammad Adam Abdullah

It has been reported that justice Mohd Sofian Abd Razak is the brother of an Umno executive councillor from the state of Pahang. If that is the case, should he have been disqualified from presiding at Najib Razak’s hearing on July 4?

Bias with regard to anyone acting in a judicial capacity means anything which tends or may be regarded as tending to cause such a person to decide a case otherwise than on the evidence (R v East Kerrier Justices [1952] 2 QB 719): Jowitt’s Dictionary of English Law (2nd Edn) Vol 1, under “Bias” at 210.

A judge may be disqualified from hearing a matter on grounds of bias. If a judge stands to gain financially from a decision, that will amount to pecuniary or proprietary bias. If he has a personal interest to gain, that will amount to personal bias.

There is a third category. This is “where a judge is not a party to the suit and does not have a financial interest in its outcome, but in some other way his conduct or behaviour may give rise to a suspicion that he is not impartial, for example because of his friendship with a party”.

“This second type of case is not, strictly speaking, an application of the principle that a man must not be judge in his own cause, since the judge will not normally be himself benefiting, but providing a benefit for another by failing to be impartial” (Lord Browne-Wilkinson, in re Pinochet [1999] 1 All ER 577).

In the matter of Augusto Pinochet, the former Chilean president was receiving treatment in the UK. Spain issued international warrants to have Pinochet arrested. Pursuant to those warrants, two provisional warrants were issued by magistrates in the UK. Pinochet applied to quash those warrants.

The UK High Court allowed Pinochet’s application on the basis that Pinochet had immunity from prosecution as a former head of state. The prosecution appealed.

At the appellate stage, one of the intervening parties was Amnesty International (AI), a well-known human rights organisation. AI supported the appeal.

The appeal was allowed by the House of Lords by a majority of 3-2, hence restoring the UK warrants on the basis that Pinochet had no immunity. One of the Law Lords who heard and allowed the appeal was Lord Hoffman.

Subsequently, it came to light that Lord Hoffman was “connected” to AI. Lord Hoffmann was a director and chairperson of Amnesty International Charity Limited (AICL), a registered charity incorporated to undertake those aspects of the work of Amnesty International Limited (AIL) which are charitable under UK law.

Additionally, Lady Hoffman was carrying out administrative duties for AI, although neither Lord Hoffman nor Lady Hoffman were consulted on the Pinochet case.

In a unanimous decision, on an application by Pinochet to set aside the earlier decision, the House of Lords set aside the decision on the grounds of real danger of bias.

This is what Lord Browne-Wilkinson said: “Can it make any difference that, instead of being a direct member of AI, Lord Hoffmann is a director of AICL, that is of a company which is wholly controlled by AI and is carrying on much of its work?

“Surely not. The substance of the matter is that AI, AIL and AICL are all various parts of an entity or movement working in different fields towards the same goals.

“If the absolute impartiality of the judiciary is to be maintained, there must be a rule which automatically disqualifies a judge who is involved, whether personally or as a director of a company, in promoting the same causes in the same organisation as is a party to the suit.

“There is no room for fine distinctions if Lord Hewart’s famous dictum is to be observed: it is ‘of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done'” (see Rex v Sussex Justices, ex parte McCarthy [1924] K.B. 256, 259).

Closer to home, in two cases, judges have refused to disqualify themselves on grounds of personal relationship.

In Glomac Resources Sbn Bhd v Majlis Agama Islam Wilayah Persekutuan & Anor, justice Nantha Balan held that his friendship with one of the counsel appearing before him, by itself, was not grounds to allege bias.

That is rightly so as judges who are appointed from members of the Bar would inevitably be friends with many lawyers in the course of their career.

In Pembinaan BLT Sdn Bhd v Debessa Development Sdn Bhd, justice Mary Lim refused to disqualify herself on account of the fact that her daughter was a pupil and subsequently a lawyer in the firm that was appointed to litigate a matter before her.

This is how the judge addressed the issue: “The present facts and circumstances that we face in this case are actually no longer uncommon occurrences. Given the popularity of law as a career, and I am sure for many other educational, sociological or many other reasons, it is no surprise that the incidence of meeting or finding a kin connection between the counsel and the bench is not uncommon.

“So much so, the appearance of one’s child before the judge parent is not frowned upon, let alone considered or even raised as a ground of bias. Many children of judges or even their spouses regularly practise and appear before the courts throughout the country.

“The firms with which these children are employed or partnered also regularly attend or appear before their parent judge. They do so without any cause for concern; and rightly so.”

That is also the current position in the UK.

‘Real danger of bias’

It is accepted that the test of bias is that there exists a real danger of bias. The court looks at possibility, not probability, bearing in mind always that justice must not only be done but be seen to be done.

How do these decisions bear upon justice Sofian’s decision to continue hearing the matter concerning Najib?

The pertinent factors would be the following:

1. His brother is an executive councillor of Umno;
2. His brother has been a state assemblyman of Umno in Pahang since 1999;
3. His brother belongs to a political party of which Najib was president;
4. His brother comes from a state where Najib remains an Umno division head and a state where Najib has served and remains influential.

Justice Sofian ought to bear in mind that he is presiding not in a civil case where the stakes are ringgit and sen. Najib’s criminal case has drawn not only national but international attention. The case has created a history of sorts in Malaysia.

It is imperative that the conduct of the case at all levels be above reproach such that the common man, the ordinary bystander, will remark: “The judge has been fair.”

One does not need to prove that justice Sofian is unfair or in fact biased. However, what the ordinary bystander may remark is: “The judge’s brother is an Umno politician from Pahang, Najib’s home state. The elder brother may have suggested to the younger brother to go easy on Najib.”

Unlike corporations or associations, politics is a game of influence peddling and abject patronage. A leader (or former leader for that matter) holds great sway over his followers. Umno is no exception.

Granted, justice Sofian’s brother is not the one on trial, but this is no ordinary case either.

There is no lack of criminal judges at the Kuala Lumpur courts. The fact that a gag order has been granted, surprising in the circumstances and impossible to enforce, does not lend assistance to arguments supporting justice Sofian’s impartiality.

It is apposite to close with the remarks of Lord Hutton in re Pinochet: “I have already stated that there was no allegation made against Lord Hoffmann that he was actually guilty of bias in coming to his decision, and I wish to make it clear that I am making no finding of actual bias against him.

“But I consider that the links, described in the judgment of Lord Browne-Wilkinson, between Lord Hoffmann and Amnesty International, which had campaigned strongly against General Pinochet and which intervened in the earlier hearing to support the case that he should be extradited to face trial for his alleged crimes, were so strong that public confidence in the integrity of the administration of justice would be shaken if his decision were allowed to stand.”

Likewise, justice Sofian will do the administration of justice a big favour by recusing himself from hearing the matter.

Muhammad Adam Abdullah is an FMT reader.