Hulfsdrop Hill

5th December1999

Is apparent bias automatic disqualification?

By Mudliyar

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Justice V.S. Malimath, a member of the National Human Rights Commission of India and retired Chief Justice of Kerala, is a highly respected jurist. The Bar Association of India, which is one of the largest in the world, is seriously watching developments here, including the appointment of the Chief Justice and the cases against before the Supreme Court. 

Fali S. Nariman, the president of the Bar Association of India, has specially accredited Justice V. S. Malimath to monitor the proceedings in these cases. He has also received the sanction of the International Bar Association, the largest gathering of lawyers in the world, which is also the largest federation of national legal associations and its president Klaus Bohlhoff for the assignment here. 

Justice Malimath also represents the Bar of England & Wales. Stephen Solley, Q.C. has personally signed a letter giving Justice Malimath the observer status as the Bar Human Rights Committee of England and Wales. The International Commission of Jurists in Geneva has also made "Ordre de mission" and appointed him as an observer at the proceedings of cases. These international organizations have expressed concern on the question of the legality and the constitutionality of the appointment of Mr. Silva as the Chief Justice of Sri Lanka. 

Justice Malimath had informal meetings with the judges of the Superior Courts of Sri Lanka. He apparently believes that many of them are concerned about the independence of the judiciary. The comments of one judge who hails from a village have impressed Justice Malimath. The Judge had said: "The Supreme Court has an important role to play in safeguarding the rights of the people of the country. The ordinary people of this country look at the Supreme Court with the utmost respect and believe that it will preserve their rights. The office of the Chief Justice is the most important one to be held by a highly respected person with ability and who is committed to human rights." 

I believe it may have reminded him of one of the foremost fighters of human rights in India, Justice Kuldeep Singh. Today the portrait of Justice Kuldeep Singh hangs in a separate room and the lawyers take their juniors to pay homage to the portrait of Justice Kuldeep Singh and the important role played by him in protecting human rights and protecting the masses from the tyranny of the Executive is ingrained into them. 

When the three applications against the chief justice were filed, Justices Priyantha Perera, A.S. Wijetunga and Shirani Bandaranayake decided to refer the matter to a fuller Bench. Then on November 5, a petitioner filed the following motion.

"(1)When the above application was filed in Your Lordship Court we sought an order from Your Lordships in terms of Article 132(3) of the Constitution to have this application heard by a full bench of Your Lordships Court. (Prayer of the Petition) and 

(2)Whereas when the above application came up before P.R.P. Perera, J., Wijetunga, J. and Dr. Bandaranayake, J on 5.11.99 Their Lordships stated that they were of the view that this was an appropriate matter to be referred to Your Lordship in terms of Article 132(3)(2) for Your Lordship to constitute the "appropriate bench" to hear this case.

(3)Whereas when Counsel for the petitioner endeavoured to make a submission in regard to the constitution of the "appropriate bench" by Your Lordship, to be conveyed to Your Lordship, their Lordships stated that they were "functus" upon making the aforesaid order, and that we could make any representation that we thought fit direct to Your Lordship, and 

(4)Whereas in the previous instance where the appointment of a Judge of Your Lordships Court was called in question in a Fundamental Rights application reported in (1977) (1SLR pg 92) the Bench constituted to hear that application comprised 7 Judges of the Supreme Court, and

(5)Whereas this application seeks to call in question the appointment of the Hon. Chief Justice of the country. Accordingly we submit that the "appropriate bench" should Comprise the fullest possible number of Judges of Your Lordships Court. 

(6)If Your Lordships deem it fit to constitute a Bench comprising a lesser number than aforesaid, in view of the fact that Your Lordships are a party to this application we respectfully move that Your Lordship be pleased to nominate to that Bench the requisite number of Judges strictly in order of seniority.

(7)We further wish to bring to Your Lordships attention that this application has evoked both national and international concern as evidenced by the presence in Court of Hon. Justice V.S. Malimath, former Chief Justice of Kerala and Karnataka, specially accredited as an observer by the International Commission of Jurists, International Bar Association, Bar Council of England and the Bar Council of India.

(8)I respectfully move that Your Lordship be pleased to consider the aforesaid in constituting the "appropriate" Bench."

On this motion the Chief Justice made an order on November 29 appointing Judges in the ascending order of seniority. The order is as follows: 

"The petitioner has not obtained leave to proceed in this application as required by Article 126(2) of the Constitution. He has yet not established the factual basis on which he seeks to urge any questions of constitutional importance. But he has by his motion dated 5.11.99 purported to nominate the Bench that should hear the application. There is no basis to treat this petitioner differently from any other petitioner. Hence the motion dated 5.11.99 is refused.

"I would however acting on the request of the Judges before whom this matter was listed on 3.11.1999 direct that this matter be heard by a Bench of seven Judges. Since the question of seniority of Judges is adverted to in the papers filed, the seven Judges are selected in the ascending order of seniority and the Bench will comprise of 

i. Hon. Wadugodapitiya J (to Preside)

ii Hon. Perera J

iii Hon. Wijetunga J

iv. Hon. Bandaranayake J

v. Hon. Gunasekera J

vi. Hon. Weerasekera J

vii. Hon. Ismail J 

If the Bench comprised as above cannot proceed with the hearing of this matter, for any reason, in view of the grounds stated above for the refusal of the motion of the Petitioner, I would not constitute another special Bench for the hearing of this matter but direct this matter come in the normal course in terms of Article 126(2) of the Constitution in the first instance whether leave to proceed should be granted."

Ranjith Abeysuriya Senior Counsel for one of the petitioners made lengthy submissions not on the question of granting leave to proceed but on the order made by the Chief Justice. He objected to the present Bench on the basis that it was constituted on the process hitherto not known to the law. He brought to the notice of the learned judges that the public perception matters, though he does not say that the present Bench is partial or biased but when three senior judges are not included he reiterated that the public may lose confidence in the independence of the judiciary. 

He stated that our primary objection to the constitution of the Bench is that it may seem that the judges have been picked and chosen and the fact that the three most senior Judges have not been included might have a bearing on the preservation of the integrity of the institution. 

Mr. Abeysuriya cited a recent case in which ex-Chilean Dictator Augusto Pinochet was accused of killing thousands of civilians during his regime and his extradition was sought by Spain so that he could be tried for crimes against humanity. When this matter went up in appeal to the House of Lords and the Law Lord who was serving as a director of a charity closely associated with a party to an extradition appeal has heard this case without failing to disclose his connection. The question of apparent bias of the judges was discussed. 

In that judgement the Law Lords have held "As I have said, Senator Pinochet does not allege that Lord Hoffmann was in fact biased. The connection is that there was a real danger or reasonable apprehension or suspicion that Lord Hoffmann might have been biased, that is to say it is alleged that there is an appearance of bias, not actual bias. The fundamental principle is that a man may not be a judge in his own cause. The principle, as developed by the Courts, has two very similar but not identical implications. First it may be applied literally if a judge is in fact a party to the litigation or has a financial or proprietary interest in its outcome is sufficient to cause his automatic disqualification.

"The second application of the principle is where a judge is a party to the suit and does not have a financial interest in its outcome, but in some other way his conduct or behaviour may give rise to a suspicion that he is not impartial, for example because of his friendship with a party. 

"The second type of case is not strictly speaking an application of the principle that a man must not be a Judge on his own cause, since the Judge will not normally be himself benefiting, but providing a benefit for another by failing to be impartial. In my judgement, this case falls within the first category of case, viz where the Judge is disqualified because he is a Judge in his own cause. 

"In such a case, once it is shown that the Judge is himself a party to the cause, or has a relevant interest in its subject matter, he is disqualified without any investigation into whether there was a likelihood or suspicion of bias. The mere fact of his interest is significant to disqualify him unless he has made sufficient disclosure. I will call this "automatic disqualification."

The Peiris factor

Recently, at a conference held in Barcelona the corruption in the third world was discussed. A representative of a multi-national company attended this conference and his duty was to spell out the methods adopted by his Corporation to prevent his representatives paying royalties, commissions and rewards to politicians and other VIPs in third world countries to obtain contracts and other benefits. 

The Sri Lankan representative was shocked when this company executive mentioned Sri Lanka as one of the countries taking huge commissions. The speaker said some government VIPs in Sri Lanka were paid huge royalty deposited in banks outside Sri Lanka on a take-over bid. The Sri Lankan representative could only hide his face in shame when the speaker said that some Sri Lankan VIPs had approached their representatives for commissions even after the take-over bid was concluded, though they had nothing do with the transaction. 

The Sri Lankan representative in order to save his face asked the speaker whether he knew anyone who did not resort to such activities. He turned around and said there were VIPs who point blankly refused even to discuss such illegal activities. When the Sri Lankan representative asked for the names, he said Sri Lankans have long names and most names could be pronounced, but the key player who was involved in the take-over bid was a person who refused to discuss anything outside the contract and his name he believed was one 'Peris'. 

As the name was not very familiar, the Sri Lankan questioned as to what his position was. He said he was the Deputy Minister of Finance. 

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