Sunday, October 12, 2008

Perception, Biases & Magna Carta

On Judiciary & the Perception of Biases

Lord Denning said:

“…in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal or whoever it may be, who sits in a judicial capacity.

“It does not look to see if there was a real likelihood that he would, or did in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people.

“Even if he was as impartial as 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.

“Nevertheless there must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The court would not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough.

“Justice must be root in confidence; and confidence is destroyed when right-minded people go away thinking: ‘The judge was biased.’”

See: Metropolitan Properties Co (FGC) Ltd v Lennon (1969) 1 QB 577

Source: NST, Oct 12, 2008; Zainur Zakaria, Opinion Column, pg 23

To No One Shall We Deny Justice

Let Magna Carta Be Our Beacon Of Justice

Lord Denning said:

“…when the state itself is endangered, our cherished freedom may have to take second place.”

Lord Bingham said:

“Of course the government has a duty to protect the lives and property of its citizens. But that is a duty which it owes all the time and which it must discharge without destroying our constitutional freedoms.

“There may be some nations too fragile or fissiparous to withstand a serious act of violence. But that is not the case in the United Kingdom.”

Magna Carte C. 38:

"No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land."

C. 39:

"To no one will we sell, to no one deny or delay right or justice.”

See: Lord Denning in R v Secretary of State (Home Department) ex parte Hosenball (1977)

Source: NST Oct. 12, 2008; Roger Tan, Opinion Column, pg 22

On the Risk of Negative Perception

“It does not matter whether perception is right or wrong. It is a negative perception and if not addressed it will harden into reality. Once people lose their trust and confidence in institutions, the country cannot function properly.

"People must believe in the effectiveness of the judiciary and law enforcement agencies. They must believe that the government is serious about fighting corruption.

"What I am trying to do is to formalise these changes.”

Statement made by the Prime Minister Abdullah Ahmad Badawi
October 12, 2008, NST, Prime news, pg 4