RULES AGAINST BIAS (NEMO JUDEX IN CAUSA SUA) Introduction Judge Lord Hewart in a fairly well-known court case

R v. Sussex Justices ex parte Mc Carthyl1, saying: "It is essential that justice not only done, but must also ensure that it is implemented". Professor de Smith in his book, Constitutional and Administrative Law 2 says: "Rules of natural justice are the minimum standards of fair decision-making imposed by law are persons or bodies acting in a judicial duty ... content of justice may vary accordingly and may vary ... The important thing is the importance of the parties involved must be taken and made without fear or favor, and after enough of a chance is given to the parties concerned to present his case." Similarly, in the case of Associated Provincial Picture Houses v. Wednesbury Corporation, 3 the Court of Appeal says the UK dealing with the case should not be suspicion, trust, do not pay attention to things that bad, or that which is unreasonable. On the question of "reasonable," Judge Lord Greene MR states that: "... A person entrusted with discretion to give full attention to the right of law. He should pay attention to what he was bound to be considered. He should exclude them from considering matters not related to what would be considered ... If not ... he will act unreasonably. " A.V. Dicey in his book An Introduction to the Study of the Law of The Constitution, 4 give the following (in the context of public servants, but applies also to private sector employees): "Public servants shall perform the duties referred to it without bias and provide an opportunity for the parties to present his case in a form sufficient. However, the administrator can follow its own rules and way although he did not always follow the way a court of law. " Court in the case of Byrne v. Kinematograph Renters Society Ltd.5 provides guidance to ensure justice is achieved. First, an accused must be aware of the allegations made, secondly,

he should be given the opportunity to state his case; third, the tribunal shall act in good faith (i.e. without suspicion). Chief Judge Tucker in the case of Russell v. Duke of Norfolk, 6 states: "The needs of justice depend on the circumstances of the case, the form of inquiry, the Investigating Agency regulations to carry out its powers, the principles discussed and so on."

Definition of Bias According to Agarwal (2004), bias is a state of mind, which sways one's judgement and renders one unable to exercise one's functions impartially. The dictionary meaning of bias is 'leaning of the mind towards or away from something'. A predisposition to decide for or against one party without proper regard to the true merits of the dispute is bias. Bias has been held synonymous with partiality. The word has been held to refer views in respect of a subject matter as well as to the mental attitude towards another person.

Rules Against Bias (Nemo judex in causa sua) There are two principal rules. The first is the rule against bias (i.e. against departure from the standard of evenhanded justice required of those who occupy judicial office)nemo judex in causa sua (or in propria causa) (no man may be a judge in his own cause). This means that any decision, however fair it may seem, is invalid if made by a person with any financial or other interest in the outcome or any known bias that might have affected his impartiality. The second rule is known as audi alteram partem (hear the other side). It states that a decision cannot stand unless the person directly affected by it was given a fair opportunity both to state his case and to know and answer the other side's case. In Latin, rules against bias is also known as nemo judex in causa sua polest or debit nemo in propria sua causa judex which means someone who has a stake in a case that he handled. Therefore he can not judge the case. A decision shall be free from bias and prejudice. Bias and prejudice may occur for two reasons, namely: (i) because the parties have an interest, or
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(ii) decision-makers (i.e. those who judge the case) represent the specific objectives of the institution that wanted no communication / some connection, and the like. According to Hussin (1994), the bias can be occurred in situation such as bias because the parties interested and bias because of relationship and connection. 1.1 Bias because the parties interested According to legal writers, Geoff Cahil, in his book, Promotion and Diciplinary Appeals in Government Service "a party is considered to be biased if the parties concerned have an interest, whether financial or non financial interests. In the case of Leeson v. General Council of Medical Association and Registration, 38 the court stated that if there is a financial interest in it need not consider the question of whether "reasonable suspicion" or a "real possibility" that there will be biased. Justice Blackburn, in the case of R v. Hamond, 39 provide a firm rule about bias because of financial interests. According to Judge Blackburn, there is a financial interest, albeit slightly, sufficient to say that he is biased. However, strict rules have exception. Among them the following: (i) If the financial interest is not personal to the person making the decision (the judge the case), then it does not matter, that is not considered biased. In the case of R. v. Rand, 40 the judge handling the case are the trustee of a hospital and Brotherhood Association. Both have invested funds in the corporate case may be handled by the judge. It does not matter, and the judge is not considered to be biased because of personal financial interest is not the decision maker (the judge in question).

(ii) If the financial interest is too remote, he can still be considered impartial. For example, civil servants subject to disciplinary action A is a shareholder of 1% of the total shares of XYZ Company. One of the members of the disciplinary authority dealing with the case A is a shareholder of 2% of the total shares. TUV company, which invested a total of 5% of the shares of XYZ Company. Interests will be considered further. So far away or close by the

financial interests of a person depends on the facts of the case and certainly vary from one case to another case. 1.2 Biased because of the relationship or connection Some bearing on certain interests in the form of private interests also led to the decision maker is disqualified to adjudicate a case (such as disciplinary cases) if the interest can be "reasonable suspicion" or a "real possibility" of the existence of bias. In the case of R v Sussex Justices; Ex parte Mc Carthy, 41 the court stated "there is reasonable suspicion" of bias will suffice to make the person concerned is not entitled to adjudicate the case. In determining whether the relationship or the relationship of interest may be "reasonable suspicion" or a "real possibility" that there will be biased, depending on the facts of each case. In other words, the relationship between discussion with decision makers (e.g. members of the disciplinary board) to determine whether there is a biased or not, will vary from one case to another case. For example: (i) If the decision maker (disciplinary) and employees who tried on charges related disciplinary or relatively close relationship (e.g. father, cousin and the like), then this could be considered there will be a real possibility or a reasonable suspicion that a member of the disciplinary authority would be biased. (ii) If the parties (i.e. workers who tried the action of the disciplinary authority and the disciplinary authority) is a member of the same organization, then here too there is a real possibility or is there a reasonable suspicion that there is bias in the decision-makers .

Principles of Rule Against Bias Thomas Jefferson in one of his letters to George Wythe mentioned in July 1776: "Judges should always be men of learning and experience in the law of exemplary morals, great patience, calmness and attention; their mind should not be distracted with jarring interests." It is the cardinal principle that any judgement should be free from bias or partiality and that the order must be passed by a judge who is free from any bias or prejudice. This rule is based on two principles which are: i. No one can be judge in his own case, and ii. Justice must not only be done but seen to have been done too. If a pecuniary interest exists then there is real likelihood of bias and reasonable suspicion. In Sirpur Paper Mills Ltd. Vs. CWT 1970 77 ITR 6 (SC) the Supreme Court observed that the power of revision conferred on the Commissioner is quasi-judicial and must be exercised with unbiased mind, considering impartially the objections raised by the aggrieved party. So also in Shankuntala Devi Vs. CIT 1971 82 ITR 416 (Cal) that if there are any inquiries and investigation against the party aggrieved, the materials must be provided and any bias should not be considered. The maxim is applicable precisely when the court is concerned not with a case of actual injustice but with the appearance of injustice, or possible injustice. For example, in Maxwell Vs. Dept. of Trade (1974) 1 Q. B. 523 Lawton L.J. expressed a similar idea when he said, "Doing what is right may still result in unfairness if it is done in the wrong way." It is because the assurance that justice has been seen to be done is, in itself, an important element in the public confidence in the settlement of disputes. In stringer Vs. Minister of Housing (1970) 1 W. L. R. 1281 where the question was whether the Minister had "Precluded himself from acting with fairness and impartiality both in appearance and in fact, Lord Widgery C.J. observed as follows:

"It is again absolutely basic to our system that justice must not only be done but must manifestly be seen to be done. If justice was so clearly not seen to be done, as in question here, it seems to me that it is no answer to the applicant to say: "well, even if the case had been properly conducted, the result would have been the same." That is mixing up doing justice with seeing that justice is done." Disclosure by arbitrators Referring to situation in India, under Section 12 of the Arbitration and Conciliation Act, 1996 provides that the arbitrator before accepting his appointment shall disclose in writing to the parties such matters as are likely to give rise to justifiable doubts about his independence or impartiality. The same holds good throughout the arbitral proceedings and any time after his appointment such situations arise, he must disclose the same in writing to the parties. There is nothing complicated about this. All that is required is a simple letter from the arbitrator e.g. "Dear Mr. applicant, I am pleased to give my consent to act as arbitrator. To the best of my knowledge, there are no circumstances likely to give rise to justifiable doubts as to my independence or impartiality. I shall also keep the parties informed if any such circumstances arise during the arbitral proceedings. Thanking You."

Procedure for removal of a biased arbitrator According to Argawal (2004), the appointment of an arbitrator may be challenged only if: the circumstances exist that give rise to justifiable doubts as to his independence or impartiality or, he does not possess the qualification agreed to by the parties [Sec.12 (3)] The Arbitration and Conciliation Act provides that a party may challenge an arbitrator appointed by him also. But this can be done only for those reasons of which he becomes aware after the appointment has been made. [Sec.12 (4)] In Malaysia, the most popular case is involving Tun Hamid, where was also disqualified under the rule against bias ( nemo judex in causa sua) because as the acting Lord President he would benefit from Tun Sallehs removal. The contentious public law question is whether due to Article 125(4), the principles of common law were excluded. The Constitution in Article 125(4) admirably requires that judges must be investigated by their peers and not by

the executive or the legislature. Tun Zahir, the Speaker of the Dewan Rakyat (who was a former High Court judge) was appointed a tribunal member. Besides his juniority as a judge at the time of his retirement, his association with Parliament should have disqualified him. His selection was a violation of the spirit of the Constitution that judges should be tried by their peers. Under Article 125(4) the tribunal must consist of no fewer than five existing or past, local or Commonwealth judges. It is not clear why the Government appointed six (an even number) of judges to the tribunal headed by Tun Hamid. An even number gives to the Chairman an extra casting vote in case of a tie. The gilt-edged provisions of Article 125 result in the ironic situation that justices who would benefit from the removal of the accused are allowed to sit in judgment over him. Some rethinking on the composition of the tribunal is, therefore, called for.

The Issues of Appointment the Arbitrators a) Seniority Article 125(4) is silent about the seniority of tribunal members in relation to the judge to be tried. Several judges on the Tun Hamid tribunal were junior in standing to Tun Salleh. A number of very senior retired judges were available but were not picked. The law in Article 125(4) is in grave contrast to the general rule in Article 135(1) and innumerable other statutes that members of a disciplinary board should not be inferior in rank to the officer to be tried.

b) Tribunal procedure The Constitution is silent on the procedures to be employed by the tribunal. There is no requirement of a public hearing. Presumably, the common law rules of natural justice apply to give to the accused a fair opportunity to answer the grounds on which his removal is sought. In a matter as grave as the dismissal of the Lord President, it was necessary that the
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accused Lord President should have been heard. He was invited to attend but refused to because of his objections to the composition of the tribunal. More time should have been given to sort out this legal issue. It was improper for the Tribunal to proceed in haste in the absence of Tun Sallehs counsel. c) Contempt It was alleged that Tun Hamid, acting Lord President and Chairman of the Tribunal, tried to interfere with the working of the Supreme Court registry when Tun Salleh sought to apply for an urgent appeal to the Supreme Court against the High Courts refusal of his application for injunction. It was alleged that Tun Hamid (the defendant in the case) telephoned Justice Seah, who was slated to hear Tun Sallehs application against the tribunal headed by Tun Hamid. Whether Tun Hamids acts constituted an attempt to obstruct justice has not been fully explored.

d) Suspension The suspension of three senior judges (Justices Wan Sulaiman, Seah and Abdoolcader) who agreed to hear Tun Sallehs petition was most unfortunate. The judges were acting in the finest tradition of the judiciary to hear out a complainant facing grave detriment to his reputation and career.

e) Harsh penalty Even though the tribunal came to the conclusion that Tun Salleh had committed some improprieties, the recommendation to dismiss was disproportionately harsh. Likewise it was cruel for the second tribunal to dismiss Tan Sri Wan and Tan Sri Seah for misconduct. Their misconduct was nothing but a simple and courageous performance of a judicial duty to hear an urgent case. Perhaps the disproportionate penalties were handed down because in 1988 only one punishment, dismissal, was provided for. Due to amendments in 2006, a

tribunal can recommend dismissal under Article 125(3) or some other lesser sanction under Article 125(3B).

Challenge procedure A party may challenge an arbitrator in terms of Sec. 13 of the Arbitration and Conciliation Act. This he must do within 15 days of the constitution of the Arbitral tribunal or becoming aware of the grounds for challenge as mentioned earlier. The reason for the challenge should be sent to the Arbitral tribunal in writing. The challenge may result into the following: i) The challenged arbitrator may withdraw from the office. ii) The other party may agree on the challenge and terminate the appointment of the arbitrator. iii) In case, events mentioned above in (i) and (ii) do not happen the Arbitral tribunal may decide upon the challenge. However, if the challenge is not accepted, the arbitral tribunal shall continue the Arbitration proceedings and make an award. The aggrieved party may make an application for setting aside the award in terms of sec. 34 of the Act. It may so happen that an arbitrator was disqualified at the time of reference but this fact was known to the party at that point of time. In such cases, leave to revoke authority of such an arbitrator cannot be granted. However, he will be disqualified to continue as an arbitrator, if he is in fraudulent collusion with the opposite party or is indebted to one of the parties

Real or reasonable apprehension of Bias In porter Vs Magill (2002)1ALLER 465 the House of Lords modified 'the real danger test' propounded in earlier English decision. The Court took note that test of real likelihood of bias and real danger test has been criticised by the High Courts of Australia. This was on the ground that they tend to place inadequate emphasis on the public perception of the irregular incident. The court noted that 'the reasonable apprehension of bias' test was in line with the
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test adopted in most common law jurisdictions. Thus the reference to real danger was deleted as it was felt that those words no longer serve a useful purpose. Here, the issue of whether the fair minded and informed observer would conclude that there was a real apprehension of bias can be questionable.

The Bombay High Court had an occasion to examine the issue of bias in the case of Saurabh Kalani Vs Tata Finance Ltd 2003(4) Mh. L. J. 812. The court examined in details all the three tests as mentioned above, including the test of real apprehension of bias. In this case, it was alleged that there were justifiable doubts as to the independence and impartiality of the arbitrator on the ground that the arbitrator had acted as an advocate for the respondent. Rejecting the same the arbitrator stated that he acted as an advocate only in respect of Tata International Ltd., another group company which had no connection with the respondent and that the respondent was an independent entity having a separate business and at no stage did he act as an advocate of the Company. Therefore, in the petition, the respondent stated that the at no stage the arbitrator had been employed either by Tata International Ltd. or by any other company in the Tata Group of companies though between the years 1981 and 1987 he was the head of the legal department of Tata International Ltd. but he ceased to be in its service. For fifteen years thereafter he had been practising independently as an advocate of the High Court. The court opined that no right thinking person knowing of the connection of the arbitrator with a group company of the respondent would feel that there was any real possibility of bias. The fact that he ceased from the employment of the said group company nearly 15 years back would make an allegation of bias clearly untenable. In Locabail Ltd Vs Bayfied Properties (2000) 1ALLER 65 the court has observed that "the greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection is raised the weaker (other things being equal) the objection will be." In the instant case the court opined that there were no justifiable doubts about the independence and impartiality of the arbitrator. The arbitrator had no affiliation, contact or interest with the claimant, least of all in the dispute of the petitioner. The arbitrator's employment with the Tata International Ltd. ended over 12 years before the present reference. Employment in the distant past with another public company, though in the same group, was not such as would warrant invocation
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of the circumstances spelt out in section 12 of the Act. A professional in the legal profession who discharges the role of an arbitrator is expected to bring to his task a sense of objectivity and a high degree of dispassionateness.

Conclusion The rule against bias is one thing. The right to be heard is another. Those two rules are the essential characteristics of what is often called natural justice. They are the twin pillars supporting it. The Romans put them in the two maxims: Nemo judex in cause sua: and Audi alteram partem. They have recently been put in the two words Impartiality and Fairness. Therefore, in order to maintain the fairness and integrity, the judge or arbitrator is not enough that he is not biased; but must also be seen to be not biased. This leads 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.

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References: Hussin, A.Z., (1994), "Laws on Civil Servants Discipline - Rights Responsibilities" Kuala Lumpur: Dewan Bahasa & Pustaka, p. 28-56. Geoff Cahil, 1986, Promotion and Diciplinary Appeals in Government Service. North Ryde, New South Wales: The Law Book Company Limited, hlm. 24 Agarwal, P.(2004), Test of 'real apprehension of bias' in arbitration, The Institute of Chartered Accountant India, October , 2004.

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