THE DOCTRINE OF IMPARTIALITY IN CRIMINAL TRIAL IN MALAYSIA
Nizam Adha Majabin Abdullah
Student of Master Human Resource Law
Ghazali Shafie Graduate School of Government
University Utara Malaysia
E-mail: [email protected]
Abstract: The maxim of “that no man should be a judge of his own cause” shows that a judge must be an independent and shall not have any relationship to any party in the trial. Whereby “justice should not only be done but should appear manifestly to be done” emphasized that a trial should be conducted not only with justice but also need to look fair in the eyes of the public. Both maxims are part of the fundamental of the doctrine of impartiality. In Malaysia, section 439 of the Criminal Procedure Code (Act 593) & Rules defines that no Magistrate shall try any case to or in which he is a party or personally interested, except with the permission of the High Court to which in appeal lies from his court. The aim of this paper is to evaluate the significance of impartiality in a criminal trial in Malaysia. The methodology adopted in this paper is a doctrinal research, focusing namely on primary and secondary data. This article argues that the Malaysian courts a concern with the doctrine of impartiality in upholding justice to all parties that involved in a criminal proceeding and to the public.
Keywords: Impartiality, Criminal Procedure Code (Act 593) & Rules
Impartial means not supporting one person or group more than another or not supporting any of the sides involved in an argument. In other words, it also means being fair and equitable without exaggerating any of the disputing parties. It is highly emphasized in the implementation of the law as it may cause the law is not being implemented in a transparent manner where it may cause the court decision is not fair to the other party. The Federal Constitution of Malaysia applies impartiality through separation of power between Executive, Legislature and Judiciary which is constitute a system of mutual checks and balances aimed at preventing abuses of power. It means that the Judiciary as an institution and also the individual judges deciding particular cases must be able to exercise their professional responsibilities without being influenced by the Executive, the Legislature or any other inappropriate sources. Only an independent Judiciary is able to render justice impartially on the basis of law, thereby also protecting the human rights and fundamental freedoms of the individual. For this essential task to be fulfilled efficiently, the public must have full confidence in the ability of the Judiciary to carry out its functions in this independent and impartial manner. Whenever this confidence begins to be eroded, neither the Judiciary as an institution nor individual judges will be able fully to perform this important task, or at least will not easily be seen to do so.
Consequently, the principle of independence of judges was not invented for the personal benefit of the judges themselves, but was created to protect human beings against abuses of power. It follows that judges cannot act arbitrarily in any way by deciding cases according to their own personal preferences, but that their duty is and remains to apply the law. In the field of protecting the individual, this also means that judges have a responsibility to apply, whenever relevant, domestic and international human rights law.
The aim of this paper is to evaluate the significance of impartiality in a criminal trial in Malaysia. This paper is divided into three parts excluding the introduction. The first part discusses on the doctrine of impartiality in criminal trial in Malaysia consists of impartiality of the judge/magistrate, test to be applies and self-disqualification by the judge. The second part focuses on a legal system based on respect for the rule of law including the application of impartiality in International Law as well as other countries and the challenge in upholding the doctrine in ipartiality in Malaysia. The third part addresses the conclusion and some recommendation for maintaining the doctrine and at the same time uphold justice in Malaysia.
DOCTRINE OF IMPARTIALITY IN CRIMINAL TRIAL IN MALAYSIASection 439 of the Criminal Procedure Code & Rules defines that no Magistrate shall try any case to or in which he is a party or personally interested, except with the permission of the High Court to which in appeal lies from his court. This section shows that a trial must be conducted with full justice and fair without any issues of impartiality. Impartiality means an equal treatment of all rivals or fairness. Impartiality is the first duty of a judge; before he gives an opinion, or sits in judgment in a cause, he ought to be certain that he has no bias for or against either of the parties; and if he has any interest in the cause, he is disqualified from sitting as a judge. The maxim “Justice should not only be done but should appear manifestly to be done” emphasized that a trial should be conducted not only with justice but also need to look fair in the eyes of the public. While “that no man should be a judge of his own cause” shows that a judge must be an independent and shall not have any relationship to any party in the trial.
Impartiality of the Judge/MagistrateThe principles of the impartiality of the judge/magistrate were established from the case of Allison v General Council of Medical Education and Registration. The elements of impartiality in the case are;
“any person who is to take part in a proceeding should not be in a position that might be suspected of being bias.”
“justice should not only be done but should appear manifestly to be done” and “that no man should be a judge of his own cause”.
Here, impartiality refers to rule against bias. By virtue of section 439 of the Criminal Procedure Code & Rules, no Magistrate shall, except with the permission of the High Court to which an appeal lies from his Court, try any case to or in which he is a party or personally interested. To make it clear, there are elements through tests to determine whether the impartiality exists or not.
Apparent Bias TestWhat is said as ‘a party or personally interested’? In PP v Mohd Ghazali bin Ibrahim, the Magistrate and the Defendant are a sibling. In this case, the defendant was charged before the Magistrate Court for two traffic offenses, namely, for driving a car with an expired road tax and without an insurance coverage. Although the defendant pleaded guilty to both charges, He was admonished and discharged by the presiding Magistrate. Then, there was a written complaint to the High Court by a member of the public that the presiding Magistrate had been unfairly lenient in dealing with the case as the defendant is his brother. The Magistrate admitted that the defendant is his brother but explained that his decision was based purely on the merits of the case. He maintained that he had acted impartially.
The Court mentioned that “this state of affair is regretted, not so much because that there has been a breach of the Criminal Procedure Code, but more because it affects public confidence in the judiciary”. It means that the court does not concern with whether the Magistrate was actually biased or otherwise. The more important is what the public think about the decision of the court. The test applied is Apparent Bias Test that the Court does not look at the mind of the Judge himself but the impression of the situation would give to other people. Even if he was impartial as he could be, nevertheless, if right-minded persons would think that, in the circumstances, there was a ‘real likelihood’ of bias on his part, then he should not sit. And if he does sit, his decision cannot stand. Hence, the court then decides that there shall be a retrial before another Magistrate and reminds to Magistrates that they must always uphold public confidence and respect in the administration of justice, and that confidence is destroyed when members of the public have a plausible reason to believe that the magistrate is likely to be biased.
In conclusion of Mohd Ghazali bin Ibrahim’s case, a magistrate should not be involved in any trial if one of the plaintiffs or defendants has any affiliation with them. Moreover, those who have relatives like siblings, children and so on. This is because whatever decisions the magistrate decides will definitely get the attention of the public. If the decision is in favor of their relatives, it is doubtful that the magistrate would be considered unfair because of being biased. Such a situation will undoubtedly affect the justice system and the court itself. Therefore, the Apparent Bias Test is held to safeguard the public’s trust in court proceedings.
Real Danger of Bias Test v. Reasonable Apprehension of Bias TestIn the case of Mohd Ezam Mohd Nor & Ors v Ketua Polis Negara, the court has compared two tests, namely Real Danger of Bias Test and Reasonable Apprehension of Bias Test. In this case, at the beginning of the trial, the appellant had urged the learned judge whether he should recuse himself from hearing the case on the ground that the learned judge was the judge who heard the case involving Dato’ Seri Anwar Ibrahim, the conviction and sentence of which was handed down of 14 April 1999, the date that was referred to as ‘Black 14’ by the respondent. In this case, the appellant was one of the organizers of the ‘Black 14’. The appellant’s application was based on an ‘apprehension of bias’, that there was a reasonable apprehension of the part of a fair-minded person that the learned judge might not bring an impartial mind to decide the case as such justice would be seen to be done.
The court dismissing the appeal on the ground that the test to be practical in the present case was the Real Danger of Bias Test rather than Reasonable Apprehension of Bias Test. Hence, the question here was whether having regard to the facts and circumstances, was there a real danger of bias on the part of the learned trial judge when he heard the habeas corpus application. On the facts, there was no real probability of danger, in the sense of a real possibility of bias on the part of the learned judge when he heard the habeas corpus application. The only common factor between the appellant and the ‘Black 14’ judgment of the learned judge was that the appellant was detained by the respondent for organizing demonstrations one of which was on 14 April 2001 which became the foundation of the ‘Black 14’. However, such circumstances did not give rise to a real danger on the part of the learned judge. The court made a summarize that the court had disagreed with learned counsel for the appellants on the issue of recusal as the court found no likelihood of danger of bias on the part of the learned trial judge, and even if the court had applied the reasonable apprehension of bias test, the conclusion will be the same.
In another case on Mohd Ezam, the charged against him signed by Abdul Gani Patail (Attorney General) as the Head of Prosecution and the presiding judge was his brother, Abdul Wahab Patail. In this case, the accused was charged under section 4 of the Sedition Act. On the mention date to set down the dates for trial, counsel for the accused informed the court that he required making a preliminary objection on the charge. At the point the judge had brought to the attention of counsel that the head of prosecution, Datuk Abdul Gani Patail, the judge’s brother, had signed the charge and suggested that therefore it may be inappropriate for the judge to hear submissions in objection upon a charge signed by him. Neither counsel nor the deputy public prosecutor had objected to the judge hearing the objection counsel wished to raise. However, the deputy public prosecutor informed the court about the issue of public perception of the absence of impartiality if the judges should hear the case.
The court had satisfied that its concern was not founded as an excuse to avoid hearing the objection and the trial. There is an established tradition that notwithstanding that judge were appointed from the Attorney General Chambers, they act independently and impartially. Thus, there was no real danger of bias. The court had no reason to believe that Datuk Abdul Gani Patail’s action was personal. It was his obligation as the head of prosecution. From the mere fact of the relationship without more, a fair-minded and informed member of the public would not think that in all the circumstances, in this case, there was a real danger of bias on the part of the judge. The fact of mere relationship alone cannot be a basis of disqualification, but it must be disclosed and inquired into.
In conclusion, when an appeal is made with respect, the applicant must know the nature of the relationship between the judge and the alleged element that may create impartiality. In Mohd Ezam Mohd Nor & Ors v Ketua Polis Negara’s case, though the defense had successfully linked the judge’s relationship to the cases he involves, which had a relationship with each other but they have used the wrong test. This resulted in their application being set aside by the court. Whereby, in Public Prosecutor v. Mohd Ezam bin Mohd Noor, the appellant failed to demonstrate that the relative relationship between the judge and the Attorney General could cause the element of impartiality to be destroyed in the trial.
Personally interested; Self-disqualification by the judge.A judge also may disqualify itself if the purity of the administration may be in doubt. In the case of PP v Lau Tuck Weng & Anor, the accused were charged with an offence under section 39B of the Dangerous Drugs Act 1952. They wanted to call a witness, C, to testify on their behalf. However, C had been charged previously by the same judge for a similar drug trafficking offense but had been acquitted at the close of the prosecution’s case. Although acquitted for lack of evidence, adverse findings were made by that court against C. In the present case, it will be part of the defense that C had access to the premises where the drugs were presumably found and which the accused were charged with trafficking and it is likely that blame will be attributed to C. The Deputy Public Prosecutor raised a preliminary point that this court should disqualify itself from hearing the case as it might be suspected of being biased against C.
The court held that in a trial under s 39B of the Dangerous Drugs Act 1952, the judge is both judges of law and judge of fact. The court would be placed in an invidious position that if the court were to acquit both the accused at the end of this case that a lingering doubt should arise or exist in the minds of the prosecution and the public that the court had acquitted them because it had previously dealt with a case where it had made certain adverse findings against C in another case and that its adverse findings had influenced its decision in this case. Public policy requires that, in order that there should be no doubt about the purity of the administration, any person who is to take part in it should not be in a position that he might be suspected of being biased. The court, therefore, disqualifies itself from hearing the case.
It is also relevant here to refer to what Salleh Abas L. P. said on the law on bias in Cheah Yoke Thong v. Public Prosecutor at page 121 (although the facts in that case do not concern kinship): “The law on bias which disqualifies an adjudicating officer from an adjudication is summarised in the Latin maxim “nemo debet esse judex in propria causa”, meaning no one should be judge in his own cause. This time-honoured principle is based on the desirability of maintaining public confidence and respect in the administration of justice. Thus, no one who is himself a party to the proceedings or who has any direct pecuniary interest in the result is qualified to adjudicate in those proceedings. But the court will not disqualify him merely because of his words, deeds or his association with a party who is instituting or defending the proceedings before him unless the circumstances of the case show that there is real likelihood or reasonable suspicion of bias (de Smith’s, 4th ed. p. 251).”
In conclusion of the Lau Tuck Weng’s case, whatsoever the Court may decide to the case, the doubt should arise or exist in the minds of the prosecution as well as the public that the decision may be influenced by the findings against him on the previous trial. Administration of justice that judges and magistrates should not only be fair and impartial but also should appear to reasonable persons to be fair and impartial as illustrated by Hewart CJ in R v Sussex Justices, ex p McCarthy; “It is not merely of some importance but of fundamental importance that justice should not only be done but should manifestly and undoubtedly have been seen to be done.”
A LEGAL SYSTEM BASED ON RESPECT FOR THE RULE OF LAWA legal system based on respect for the rule of law also needs strong, independent and impartial prosecutors willing resolutely to investigate and prosecute suspected crimes committed against human beings even if these crimes have been committed by persons acting in an official capacity. Unless judges and prosecutors play their respective key roles to the full in maintaining justice in society, there is a serious risk that a culture of impunity will take root, thereby widening the gap between the populations in general and the authorities. If people encounter problems in securing justice for themselves, they may be driven to take the law into their own hands, resulting in a further deterioration in the administration of justice and, possibly, new outbreaks of violence. This legal system would not be complete without independent lawyers who are able to pursue their work freely and without fear of reprisals. Indeed, independent lawyers play a key role in defending human rights and fundamental freedoms at all times, a role which, together with that played by independent and impartial judges and prosecutors, is indispensable for ensuring that the rule of law prevails, and that individual right are protected effectively.
As earlier discussed, impartial is to establish fair and justice. Hence, the rule of natural justice should be emphasized in considering impartiality. In Singapore case of Hwa Tua Tau v Public Prosecutor; Tan Ah Tee v. Public Prosecutor; Low Hong Eng v. Public Prosecutor, the issue of whether the applied procedure contrary or not to rules of natural justice was ascended. In these cases the appellants had been charged and convicted of the offenses of murder and of trafficking in drugs respectively. At the end of the prosecution case, their Counsel gave evidence on his or her behalf. The appeals of the appellants to the Court of Criminal Appeal were dismissed. Special leave was given to appeal to raise the question whether the Criminal Procedure Code (Amendment) Act 1976, which introduced the new procedure, was inconsistent with the Constitution of Singapore, Articles 4 and 9(1). It was argued that the amendments were contrary to the fundamental rule of natural justice, the privilege against self-incrimination.
The standard allocution follows closely the terms of sections 188(2) and 195(1), (2) and (3) of the Criminal Procedure Code which were inserted in the Code by Act No. 10 of 1976 and abolished the previously existing right of the accused to make an unsworn statement without subjecting himself to cross-examination. The only question argued before the Board was the contention, common to all three appellants, that the amendments made to the Criminal Procedure Code by Act No. 10 of 1976 were inconsistent. Nevertheless, it was not contended that this involved a breach of any fundamental rule of natural justice. The Court had no doubt at all that the amendments to the Criminal Procedure Code made by Act No. 10 of 1976 are consistent with the Constitution of Singapore and are valid.
Thus, section 195(3) of the Criminal Procedure Code makes it clear that the accused has a legal right to refuse to give evidence at his trial. The accused is not compelled in law to give evidence on his own behalf. The inferences that the court may draw from the failure to testify are not enlarged by the amendments to the Code. They are limited as they always have been to such inferences as appear to the decider of fact to be proper in the particular case having regard to all the circumstances and the amendments to the Criminal Procedure Code made by the Criminal Procedure Code (Amendment) Act, 1976, are consistent with the Constitution of Singapore and are valid.
Application doctrine of impartiality in International Law and other countries
Impartiality also applicable in international law. All general universal and regional human rights instruments guarantee the right to a fair hearing in civil and criminal proceedings before an independent and impartial court or tribunal, and the purpose of this section is to analyze the meaning of the terms “independent” and “impartial” in the light of the case-law of the competent international monitoring organs. While these treaties as interpreted do not solve all the problems arising with particular regard to the concept of independence of the Judiciary, they do provide a number of essential clarifications. In article 14(1) of the International Covenant on Civil and Political Rights states “all persons shall be equal before the courts and tribunals…in the determination of any criminal charge against him, or of his rights and obligations in a suit of law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law”.
Some other law that applies impartiality such as Article 7(1) of the African Charter on Human and Peoples’ Rights provides that “every individual shall have the right to have his cause heard”, a right that comprises, in particular, “(d) the right to be tried within a reasonable time by an impartial court or tribunal”. Whereby, article 8(1) of the American Convention on Human Rights provides that “every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature”. According to Swedish Arbitration Law, Section 8, containing a list of instances where the required ‘impartiality’ is deemed to be lacking. Lastly, article 6(1) of the European Convention on Human Rights specifies that “in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. Although some countries may not yet have ratified or acceded to any of these human rights treaties, they are still bound by customary rules of international law, as well as by general principles of law, of which the principle of an independent and impartial judiciary is generally considered to form a part. They are thus also bound by the fundamental principles laid down in the Universal Declaration of Human Rights, which provides in its article 10 that “everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him”.
The challenge in upholding the doctrine in impartiality in MalaysiaImpartiality can also occur in the interpretation of the law which the parties may interpret the law according to their own knowledge and experience without referring the accurate source such as Interpretation Acts 1948. This kind of situation may lead the court make a bad decision. In Arulpragasan a/l Sandaraju v. Public Prosecutor, there were a disputed in the interpretation of section 180 of the Criminal Procedure Code. On appeal, it was argued that the judge had misdirected himself as regards the standard of proof required and that the onus was on the prosecution not to establish a mere prima facie case, but to tender evidence which, if unrebutted, established the case against the appellant beyond all reasonable doubt. Section 180 of the CPC is supposed to prove the existence of a prima facie instead to impose punishment. The determination of whether the accused is guilty or not should be determined at the end of the trial as enshrined in section 183 of the CPC after the prosecution has exercised the right of reply on the whole case under section 182.
The Court quoted Lord Diplock in Duport Steels Ltd ; Ors v Sirs, where he warned judges against the temptation to provide their own amendments of statute under the guise of interpretation; “It endangers continued public confidence in the political impartiality of the judiciary, which is essential to the continuance of the rule of law, if judges, under the guise of interpretation, provide their own preferred amendments to statutes which experience of their operation has shown to have had consequences that members of the court before whom the matter comes consider to be injurious to the public interest”.
Based on the above discussion, it appears that fair, justice and equal are necessary for the implementation of a law to ensure that the decision made by the court is not bias or influenced by personal interest. In addition, impartiality is not only to provide fairness and justices to the parties in the trial but also to consider the public’s view that decisions made by the courts are transparent, fair, justice and equitable. In the case of Mohd Ghazali bin Ibrahim (although it was not a criminal trial), for instance, the magistrate has made a decision in accordance with the laws and regulations. However, since the magistrate has a family relationship with the defendant, then the public will consider that the magistrate may be biased in making decisions. In short, the doctrine of injustice in criminal trials in Malaysia under section 439 of the Criminal Procedure Code (Act 593) & Regulations is adequate but the implementation should be monitored so that the public continues to trust the judiciary in Malaysia as stated in the maxim “justice should not only be done but should appear manifestly to be done”.
Allison v General Council of Medical Education and Registration 1894 1 QB 750
Arulpragasan a/l Sandaraju v. Public Prosecutor 1997 1 MLJ 1
Cheah Yoke Thong v. Public Prosecutor 1984 2 MLJ 119
Duport Steels Ltd & Ors v Sirs 1980 1 WLR 142
Goldfarb, Ronald L. (1963). The Contempt Power. New York and London: Colombia University Press.
Hewart CJ in R v Sussex Justices, ex p McCarthy 1924 1 KB 256
Hwa Tua Tau v Public Prosecutor; Tan Ah Tee v. Public Prosecutor; Low Hong Eng v. Public Prosecutor 1981 2 MLJ 49
Malaysian Criminal Procedure Code (Act 593) & Rules.
Malaysian Road Transport Act 1987.
Meyer, J. E., and D. R. Grant. (2002). The Courts in Our Criminal Justice System. New Jersey: Practice Hall.
Mohd Ezam Mohd Nor & Ors v Ketua Polis Negara 2001 4 CLJ 701 FC
Mohd Ezam Mohd Nor & Ors v Ketua Polis Negara 2004 4 CLJ 701 FC
PP v Lau Tuck Weng & Anor1998 3 MLJ 217
PP v Mohd Ghazali bin Ibrahim1995 2 AMR 1446
Public Prosecutor v Hwa Tua Tau 1980 1 MLJ 49
Public Prosecutor v. Mohd Ezam bin Mohd Noor 2001 8 CLJ 558
R v Sussex Justices, Ex Parte McCarthy (1924 1 KB 256, 1923 All ER Rep 233