Justice must not only be done, but must be seen to be done. This statement contains the expectation that when parties appear before a judge, he would adjudicate between them in an impartial manner. This article seeks to discuss the law in relation to judicial bias, particularly apparent bias arising from a written judgment.
Presumption of Judicial Impartiality
Aristotle and Thomas Aquinas opined that the end of law is for the common good of those that it binds. Arguably, one of the ways in which this common good can be achieved is when judges apply the law to the cases brought before them impartially.
Indeed, judges are presumed to be impartial. They are professionally trained to only consider evidence presented before the court in coming to their decisions. To consider extraneous matters would be in breach of their judicial duties. This is to maintain and guarantee the highest possible level of impartiality when adjudicating matters between opposing parties. This does not mean that the judge have no sympathies or opinions. On the contrary, it requires that the judge be free to entertain and act upon different points of view with an open mind (Commentaries on Judicial Conduct (1991) published by the Canadian Judicial Council). Unfortunately, this ideal is not always upheld.
Types of Judicial Bias
“Bias” with regards to those acting in a judicial capacity means anything which tends or may be regarded as tending to cause him to decide a case other than on evidence (Hock Hua Bank (Sabah) Bhd v Yong Liuk Thin & Ors  2 MLJ 213).
There are two types of biases, namely actual bias and apparent bias.
Actual bias concerns a situation where a judge has direct interests in the case, traditionally manifested in monetary terms. However, the courts have increasingly taken a wider approach to include instances of career advancement (Bar Council Malaysia v Tun Dato’ Seri Arifin bin Zakaria & Others  4 MLJ 773) and interests in the parties or matter in dispute (R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No 2)  1 AC 119). In cases of actual bias a judge’s recusal is automatic. Thankfully, cases of actual bias are rare.
Apparent bias is more common and contentious. The current test to determine whether there is apparent bias is the “real danger of bias” test as propounded in R v Gough  AC 646, as approved by the Federal Court in numerous cases (Majlis Perbandaran Pulau Pinang v Syarikat Berkerjasama-sama Serbaguna Sungai Gelugor dengan Tanggungan  3 MLJ 1; Mohamed Ezam bin Mohd Nor & Ors v Ketua Polis Negara  1 MLJ 321; Dato’ Tan Heng Chew v Tan Kim Hor  2 MLJ 293). In short, the test is: having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the judge.
It is important to note, however, that the recent Federal Court case of Bar Council Malaysia v Tun Dato’ Seri Arifin bin Zakaria & Ors (Persatuan Peguam-Peguam Muslim Malaysia, intervener) and another appeal  4 MLJ 773 held that the modified real danger of bias test in Porter v Magill is applicable in Malaysia. Previously, the apex court in Dato’ Tan Heng Chew v Tan Kim Hor held otherwise. The Porter v Magill test is not relevant in Malaysia as it was modified to be more in line with Strasbourg jurisprudence which does not bind our jurisdiction. However, at paragraph 35 of Bar Council Malaysia, Hasan Lah FCJ held that:
“The current test is as distilled by Lord Hope in Porter v Magill  2 AC 357 at : The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.” (emphasis mine).
Interestingly, the Federal Court did not refer to its previous decision of Dato’ Tan Heng Chew when stating the new “current test” for real danger of bias. Thus, it remains to be seen whether subsequent cases are bound by the new test.
Notwithstanding, whether the ‘old test’ would lead to an injustice or that the ‘new test’ would lead to more justice is immaterial. Rather, “what is more important is the integrity and honesty of the judges themselves” (see Dato’ Tan Heng Chew). Once apparent bias is established, natural justice requires the judge be recused and any decision made be set aside.
Allegation of bias based on written judgment
Real danger of bias can arise at any stage of the proceedings, even at the judgment stage. The Federal Court case of Metramac Corporation Sdn Bhd v Fawziah Holdings Sdn Bhd  5 MLJ 501 held that the ‘real danger of bias’ test remains applicable in determining an allegation of bias premised on a written judgment.
Judges may express criticisms, opinions or observations in their written judgments, and are entitled to do so (see Metramac Corporation). This does not necessarily constitute bias nor the appearance of bias as long as the statements are based on evidence adduced in court; neither would they necessitate a judge’s recusal in relation to subsequent applications in the action (Bahai v Rashidian & Anor  3 All ER 385).
In addition, there is no real danger of bias just because a trial judge had formed and expressed a view as to the credibility of a party as a result of their cross-examination, and came to bear in mind his earlier findings and observations at a later trial. He would not be prejudging by reference to extraneous matters; rather, he would be carrying out his judicial assessment of the litigation before him (JSV BTA Bank v Ablyazov and others (No 9)  EWCA Civ 1551).
Barring judicial error such as the use of intemperate language or misjudgment, the fair-minded and informed observer would be unlikely to conclude that there was a possibility of bias warranting the judge’s recusal from further involvement in the proceedings (JSV BTA Bank).
It is important to note that an allegation of bias should not be taken lightly, nor a recusal be ordered too quickly. Unless there exists in reality remarks and statements in the judgement indicating a real danger of bias, such an allegation should be rejected summarily to avoid setting aside judgements on insubstantial grounds and the flimsiest pretexts of bias (see Metramac Corporation).
Interestingly, judicial bias is not always, in a sense, undesirable. Judges, like the rest of us, are individuals moulded by particular social, economic, and personal experiences. This is why we approve of a diverse Bench – to allow judges to bring with them their unique experiences in the hope of a more representative judiciary. This in turn results in a more accessible and just legal system, fulfilling the ends of law and justice.
Of course, there remains situations where judicial bias and partiality is far from desirable – indeed, it may lead to injustice and unfairness. When such situations arise, natural justice demands that the judge be recused from subsequent proceedings between the same parties, any decisions made be set aside, and the case be retried by another tribunal.
In conclusion, judicial bias should be strictly kept in check to ensure that justice is dispensed to all fairly and without favour. Of course, total impartiality is humanly impossible; but curiously, neither is it totally undesirable. Nevertheless, the ends and objects of justice must be pursued actively and should judicial bias come in the way, it must be immediately remedied.
Written by: Feisan Villana Minin
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