On the horns of a dilemma – will the Federal Court judges recuse themselves?
An unusual thing happened at the Federal Court on August 6, 2018. There is a history to this. You know it well. It concerns a company called 1MDB and the ex-PM Najib Razak.
On March 23, 2016, Mahathir sued the then PM Najib Razak for ‘misfeasance in public office’. The High Court struck out the suit. The judge ruled that a prime minister was not a ‘public officer. The Court of Appeal dismissed Mahathir’s appeal. Mahathir then applied to the Federal Court for permission to appeal (‘Leave Application’)’. On February 27, the Federal Court dismissed his Leave Application.
Mahathir has now applied to Review the Federal Court’s decision. This is his last chance.
A similar thing happened to Tony Pua. But he’s only got as far as the Court of Appeal.
He now stands before the Federal Court, asking for Leave.
When Mahathir’s Review Application came before the Federal Court on August 6, seven judges had been assigned to hear his application.
Four of them were the Chief Justice, the President of the Court of Appeal, the Chief Judge of Malaya, and the Chief Judge of Sabah and Sarawak.
They are the judiciary’s top four.
Najib’s lawyer asked the top four to be ‘recused’ from the seven–judge bench. This was because, he argued, the top four had accepted their latest posts from the King, ‘on the advice of current Prime Minister Mahathir’.
Najib said this was ‘to avoid any ‘perception of likelihood’ of bias, and also ‘in the interest of justice, particularly the ‘public confidence on the Judiciary’.
A ‘recusal’ application’ or challenge is made on the allegation that the judges sought to be recused are ‘unqualified to perform their legal duties’ because of a ‘potential conflict of interest’ or ‘a lack of ‘impartiality’.
It is a serious charge.
Now, the only way a person can ever be a Chief Justice is to be appointed by the King, ‘on the advice of the current prime minister’. There is no other way. Article 122B(1) of the Federal Constitution states: –
‘The Chief Justice of the Federal Court, the President of the Court of Appeal and the Chief Judges of the High Courts and the other judges of the Federal Court, of the Court of Appeal and of the High Courts shall be appointed by the Yang di-Pertuan Agong, acting on the advice of the Prime Minister, after consulting the Conference of Rulers.
Najib’s objection is grounded on Article 122B(1).
But his objection also directly activates Clause (2).
Before the PM advises the King on the appointment of any other judge other than the CJ, ‘the Prime Minister shall consult the Chief Justice’: Art. 122B(2).
The three are: –
the President of the Court of Appeal,
the Chief Judge of Malaya, and
the Chief Judge of Sabah and Sarawak.
What this complaint means is, the appointment of the PCA, CJM and CJSS are also, allegedly, equally tainted: this is because – so the complaint goes – for the PM to advise the King to appoint each of these three, the current PM ‘shall consult the Chief Justice’.
How do courts approach an allegation of judicial bias?
Numerous cases have set out a number of guidelines of what must be done.
There are three grounds where a recusal of a judge can occur: where there is a breach of the Judges’ Code of Ethics, where the exist grounds of ‘disqualification’, or where the common law demands it.
Judicial disqualifications arise from two sources. The first is the Judges’ Code of Ethics 2009.
Section 5 of the Code states that,
‘A judge shall exercise judicial function independently …, free from any extraneous influence, inducement, pressure, threat or interference…’
Section 6 of the Code states that the judge shall avoid:
‘impropriety, and the appearance of impropriety’ in all judicial activities.
The common law guidance can be obtained from a checklist-approach adopted a 2016 High Court case: [Dato’ Tan Heng Chew v Tan Kim Hor ].
When a recusal is sought, the judge must deal with it immediately. Second, he must scrutinise what situations will disqualify him. Where the situation ‘automatically disqualifies’ him, the judge must step aside – even before any objection is raised: Those could be, for example, where the dispute before the judge concerns a member of his family, or where his own financial interests are entangled with dispute.
In a case called Michael Chow Keat Tai v. Suruhanjaya Sekuriti Malaysia , the presiding judge had been previously employed by SSM. He had been its Head of Enforcement and Prosecution.
One party had applied for a judicial review against a decision made by SSM.
When he realised that this particular judge was to hear the case, the litigant insisted that the judge recuse himself because he had not disclosed his previous employment with SSM.
The judge politely declined.
The shareholder took the matter up to the Court of Appeal. The Court of Appeal upheld the decision of the High Court judge.
The Court of Appeal said that past associations, and the history of previous employment do not cause any ‘real danger of bias on the part of the judge’ [Locabail (UK) Ltd v Bayfield Properties Ltd .
Otherwise no judge hailing from the AG’s Chambers could hear criminal cases; or Government cases.
This brings us to an important juncture in this discussion.
The point made by Najib’s counsel had been that the top four judges had to recuse themselves so as ‘to avoid any perception of likelihood of bias’.
Is that the right principle to be applied? Was that the right question for the court to ask of itself?
Wong Kie Chie v. Kathryn Ma Wai – a tour de force
In 2017, the Court of Appeal carried out an excellent analysis of the law in this area.
There, various actions were tried before the same judge. Of those, one writ action had gone into seven days of full trial.
One day the High Court judge had informed parties that he would be recusing himself.
This came as a bolt from the blue. The parties hadn’t applied for the judge’s recusal at all. But the judge thought he has to step aside. The judge said his decision was –
‘… based on rumours that the “High Court Judge would not make a fair and just decision for numerous cases” which were being heard together’.
Could he do that? That too, on his own?
What must be proven?
In answering the question, the Court of Appeal analysed the development of the law of recusal. The court did an outstanding job of it.
The Court of Appeal determined that the test of ‘likelihood of bias’ was not the correct test.
The court took pains to jettison what had been previously called the ‘apparent bias’ principle.
‘Apparent’ means, quite simply, this: A litigant says –
‘It looks like it is true, but it may not be.’ [I paraphrase].
Imagine asking a judge to recuse himself on grounds of ‘apparent bias’:
‘I want the judge must recuse himself. This is because the judge is unfair. I cannot prove he is unfair. But I suspect he is being unfair.’
One English judge went so far as to say that if the man on the street had a ‘mere suspicion, or even a ‘reasonable suspicion of bias in the judge,’ then the judge had to recuse himself.
That was all not quite right.
The correct principle is – ‘Was there was any ‘real danger’ of bias?
The Court of Appeal put things right.
The Court said that the correct question is to ask oneself whether there was any ‘real danger of bias’ of the judge in question.
When have recusal applications failed?
The judges in the Court of Appeal gave examples of situations where judges cannot be recused: –
- where a blogger had criticised a judge before whom he now has to appear;
- where a judge had previous dismissed a litigant’s application;
- where a judge had heard another case of the litigant, but where the facts of that case were different from the present one;
- where a judge had advised the defendant to ‘reconsider proceeding with its counterclaim’; and
- where a judge had said that the evidence a litigant had produced was ‘inherently incredible’ [literally ‘I do not believe your evidence’].
Caution against ‘too readily allowing recusals’ – No appeasement
The Court of Appeal went on to make a number of cautionary observations.
They felt that if applications for refusal were allowed freely –
‘… it would encourage tactical applications by litigants seeking another judge to hear the case.
The court spoke that this might lead to ‘judge-shopping’. It warned that judges –
‘[should not accede] too readily to suggestions of appearance of bias and encourage parties to believe that by seeking the disqualification of the judge, they will have their case tried by someone thought to be more likely to decide the case in their favour: [Re JRL, ex p. CJL 
The Court of Appeal was quite stern when it said that –
‘judges have a duty to sit where not disqualified, a duty which is equally as strong as the duty not to sit if they are disqualified’ [I summarise].
The Court of Appeal also observed that —
‘… appeasement is not a ground for refusal.’
Balancing twin duties
The Court of Appeal concluded that judges have to balance their twin duties of hearing cases brought before them in the interest of the public, against their duty to recuse themselves when the situation demands it.
Think about this
If one applied these tests, the situation will become lucid.
First, you will note that Najib did not object to the rest of the three judges.
Najib became Prime Minister on April 3, 2009. The other three Federal Court judges in the 7-judge panel were appointed after that. The Prime Minister who had advised the King to appoint them was the then Prime Minister, Najib Razak.
If Najib argues that some judges do have some form of ‘personal interest’ as they were ‘recommend by PM Mahathir’, then what about the other three judges recommended by PM Najib and the ex-CJ?
Does that mean that they too are to be automatically recused?
Isn’t what is sauce for the goose, sauce for the gander? You decide.
Second, the total number of Federal Court judges is 13.
If one eliminates the top four appointed by the New Administration, that is thirteen minus four. That leaves nine.
Everyone in that list are judges who had been appointed on the advice of the then PM, Najib.
From that list of 9, we now have to exclude the names of judges who had dismissed Mahathir’s Leave Application.
That leaves only a few eligible candidates. Even then each of them had been appointed on the ‘advice of ex-PM’. His name is Najib.
The same sauce, the same goose, and the same gander come back to take a bite at us.
If this argument is acceptable, there would no longer be any more Federal Court judges to hear Mahathir’s Review Application.
Each time a case against the Government is brought, judges who were working in the AG’s Chambers have to recuse themselves. And judges who were appointed on the advice of the current PM cannot sit on the panel.
This would pose a serious Constitutional muddle.
There’d be serious ‘forum shopping’, and this is not good for a free democracy based on rule of law.
At the end of the day the Federal Court shall have to ask itself this question: –
‘Is there any evidence that there is a ‘real danger’ that the top four judges are biased?’
We shall have to wait and see.