Judge Mohamad Zabidin Mohd Diah did not disappoint discerning Malaysians. They did not expect him to rule otherwise. They expected him not to recuse himself.
This is a replica of a previous judgment in Sodomy 1 when Anwar wanted Augustine Paul to recuse himself as a judge in his case. Of course, he refused stating that he won’t be biased. That was a ridiculous decision. The judge did not understand the implications of what constitutes biasness.
Unfortunately, there is this worrying perception that many of our judges do not have a proper notion of justice and fairness. They are not really troubled about the question of biasness. They don’t seem to be bothered about what impression they create in the minds of fair-minded Malaysians. They are not concerned about what impact their judgment would have on the judiciary and the public perception of our system of justice.
But the point is shouldn’t it be incumbent on a judge to recuse himself when a party to the dispute imputes that they don’t have faith in him as a fair person to sit in judgment in their case?
A litigant’s confidence in the judge should not be affected to the extent that he is forced to request for another judge to hear his case. In that eventuality, a fair-minded judge would step down graciously in order to safeguard the people’s confidence in the judiciary.
In this present case, Utusan Malaysia’s reporting of the Sodomy 2 trial was deemed to be prejudicial to Anwar. There is a moot point for consideration when it reported, ‘Tak Rela Diliwat Lagi’ (‘Unwilling to be sodomised again’) and ‘Berhenti Kerana Tidak Mahu Diliwat Lagi’ (‘Quit to avoid being sodomised again’).
The reporting seems to suggest that sodomy has taken place when the truth is that it has not yet been established as a fact at this stage of the proceedings.
Anwar’s lead counsel Karpal Singh wanted the paper to be cited for contempt or cautioned for its prejudicial reporting. This was denied. And that was why Karpal wanted Judge Zabidin to disqualify himself.
Following Zabidin’s refusal to step aside, Anwar commented, “As a result of the rulings made by the trial judge, there has been a departure from the standard of even-handed justice which the law requires.”
We have a situation here where Anwar is facing a very serious charge which he contends as being manufactured to smear him and convict him in order to remove him from the political scene and contain the danger he poses to the Barisan Nasional. The consequences to his personal liberty are serious and his right to mount a challenge to the BN is in jeopardy. And that is why he deserves to be given every opportunity to defend himself in a fair and impartial court.
The way the courts have been ruling to deny him crucial evidence that would be so vital for his defence is questionable. Though the trial has started, the list of witnesses to be called has not been supplied to him. He is entitled to it without question.
The way the courts have conducted themselves also creates an indelible impression of biasness in the minds of Malaysians. In fact, it has also been stated that it is not Anwar who is on trial but the Malaysian judiciary is the one that is on trial.
Under the circumstances, in order to salvage the tattered and battered image of the judiciary, Zabidin should have stepped aside in the interest of justice.
Lord Denning’s statement, as quoted by N H Chan in his book, Judging the Judges, is worth reproducing here for the benefit of our judges and for proper understanding of the issue of biasness:
“The court looks at the impressions 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 real (danger) of bias on his part, then he should not sit. And if he does sit, his decision cannot stand. …The court will 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 rooted in confidence: and confidence is destroyed when right-minded people go away thinking:‘The judge is biased’.”
Aliran is concerned not because it is Anwar who is on trial. We are concerned whether any Malaysian is entitled to a fair trial in our courts.
18 February 2010