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Should judges be placed in positions where they may need to rule against their own interests?

The integrity of the courts

Lee Weijia

During the hearings for the quantum of damages between the Chees and the Lees recently, the Chees were cited for contempt of court by High Court Judge Belinda Ang. Subsequently, Dr Chee Soon Juan and Ms Chee Siok Chin were convicted of contempt of court by Justice Ang and sentenced to 12 and 10 days’ imprisonment respectively on 2 June.

Nemo judex in re sua

Without going into the facts of the cases and whether their convictions were justified, I would like to focus on the procedure of the case, namely that the judge in both instances was the same. This is an obvious disregard of the natural justice rule against bias where the person must never be a judge of his own cause (nemo judex in re sua).

To have a robust and independent judiciary, the judges in every case must be impartial and neutral, and be in a position to pass judgement objectively on the question at hand. To do this, one of the first steps to take is to ensure that the judge presiding over the case must have absolutely no interest in the case at all.

In the case at hand, the mere fact that Justice Ang was the one who had cited the Chees for contempt in the first place should have automatically precluded her from presiding over the subsequent hearing. Would it be possible that she will find the Chees “not guilty” of contempt when she was the one who had slapped them with the charge in the first place? It is illogical and unreasonable to think so. And therein lies the rationale for the rule of natural justice that a person must never be a judge of his (or her) own cause, because it is against human nature to rule against your own interest. For Justice Ang to subsequently find the Chees “not guilty” will be to cast doubt and ridicule on herself, making people wonder why she had cited them for contempt in the first place. While not impossible, it is unlikely and the rule of natural justice seeks to prevent placing judges in this conundrum where they may need to rule against their own interests.

Justice must be seen to be done

Some may posit that Justice Ang is honest, upright, and independent, that she was not biased in any way, and the outcome of the case would have been the same regardless who was the judge. This writer accepts this, and does not intend to impugn Justice Ang's integrity in any way. However, it is not enough that she is not biased; she must also be seen to be not biased. This leads us to another rule of natural justice, where justice must not merely be done, but must also be seen to be done. This is because another measure of the legitimacy of the judiciary is the amount of faith that the population has in the process of the courts. The judgements may be correct in every conceivable way, but the courts will never have credibility if it is perceived, whether rightly or wrongly, to be biased. If the community does not see that justice is being done, any decision passed by the courts will be received with scepticism and cynicism. If people lose faith in the courts, they will no longer bring their petitions to them.

In the current case, any reasonable person would recognise the potential for bias in this case, as Justice Ang is both the person who had charged the Chees and the person who served the judgment. This in no way alleges that she was actually biased, but in this matter form is as important as substance. The key thing to consider is whether there was a possibility of bias, and not whether there was actual bias. To prevent any suggestion of impropriety, Justice Ang should have disqualified herself from presiding over the subsequent case. Only then can justice be seen to be done.

Protecting the integrity of the Judiciary

These two rules of natural justice are commonsensical and the two concepts are something that any reasonable person can readily grasp and agree with. To cite some everyday examples, if a worker had struck a foreman, would it be fair for the foreman to decide whether the worker should be punished? If you had knocked down a pedestrian, would you be comfortable if the judge is the pedestrian's father? If the head of department has been negligent in his duties, would justice be seen to be done if you appoint someone from his department into the board of inquiry that is investigating his negligence?

If the powers that be are serious about protecting the integrity of the judiciary, they should have recognised this problem immediately, and appointed some other judge to preside over the contempt case. This is the least they can do and this would not only have given the Chees a fairer trial, but it would also have shown an effort on the part of the judiciary to prove that they are indeed impartial.

It is not enough to claim that it is the duty of all citizens to condemn attacks made on the country’s judiciary. It is not enough to claim that the judiciary is independent and the people must have faith in it. Words are empty without visible action. Perhaps the first step to take to protect the integrity of the judiciary and people's confidence in it is to follow such basic, basic principles of natural justice, and not to condemn people who question the integrity of the judiciary. The judiciary itself must work to earn the faith and trust of the citizens. It is saddening that in this case, it was not done.

Is it any wonder then that our judiciary is coming under criticism?

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