The impartiality of judges

I have observed Mohamad Ariff on the Bench — he is learned, fair, patient, and hard working and often gives pointers to lawyers to argue for the people, for natural justice, and not just keep to a narrow interpretation of the law.

He has an open mind and is willing to be convinced and welcomes arguments that are strong, fair and backed by facts and law.

Therefore it was a pity that he recused himself from hearing the “two Menteris Besar” case on the grounds that he had been legal adviser or had handle cases for both the BN and Pas when he was a lawyer.

Judges come from varied backgrounds and in the time when they were lawyers or law lecturers they would have handled a variety of cases and met people from all kinds of background.

Variety comes naturally with some jobs. It enriches the person, adds to his depth and understanding of complex issues that drive a modern society like ours.

Lawyers, judges and politicians are often given to quoting that “justice must manifestly be seen to be done.” Even Mohamad Ariff quoted these oft repeated words to justify recusing himself.

He would have given greater justice to these words if he had stayed on, heard the case, weighed the arguments, considered the law and delivered a verdict that the common man, in his most reasonable moment, can say was a fair and just verdict.

That’s what he should have done and that’s what these oft repeated words really mean — that whatever the background of a judge and whatever company he had kept in the past, his knowledge, experience and integrity had been appropriate enough for him to be selected a judge.

Therefore a judge is expected to hear most cases and not recuse himself unless the issue is extremely personal and sensitive.

If every judge recuses himself simply because he had appeared for the same parties in previous matters, it is like withdrawing from a case because the litigants and the judge had once before been on the same taxi, or bus or airplane.

A judge is simply expected to be able to remove himself from his past, detach himself from personal feelings and inclinations, and hear the case and make judgments before him.

Being impartial goes with the job. Not more, not less.

A doctor is not expected to refuse to do an operation simply because the patient is a Pas or Umno member. It s the same with a judge.

It would add to the stature of the battered judiciary and help in its rehabilitation if judges continue to hear complex and contentious cases and not recuse themselves at the first sign of jeers, dissent or dispute.

Justifying his decision, Mohamad Ariff revealed in court yesterday that he had been a member of Pas with party positions at branch, division and state levels.

He had also contested in the 2004 general election as a Pas candidate.

The counter weight is that he had also acted for the Barisan Nasional in various cases including a election petition in Sarawak.

He says he sees a "pragmatic problem" in hearing the case — the danger or possibility of bias if he proceeds to hear the case.

He adds rather oddly that there are other “better qualified” judges to hear the case which had came to him as a matter of routine case management.

He should have relied more on the absolute presumption of impartiality of a judge and relied on his oath of office to discharge his duty impartially.

Being impartial in the end is rather simple — just do your job as best as you can and in accordance with your oath and go home to your garden, your pet, your family and maintain complete detachment.

The din your judgment would inevitably set off should be the least of your concern.