Important to note that the impartiality and integrity of the judicial system are paramount to ensuring justice is served and one essential aspect of maintaining this integrity is a judge’s ability to recuse themselves from a case when circumstances warrant it.
Recusal, the act of a judge voluntarily stepping aside from a case, is crucial in preserving public trust in the legal system and we shall explore the various reasons why a judge should recuse himself or herself.
Before we do that, however, let’s look at the latest case in Malaysia where former Prime Minister, Datuk Seri Najib Tun Razak, filed an application on 14 August to recuse trial judge Datuk Collin Lawrence Sequerah from presiding over the 1Malaysia Development Bhd-Tanore (1MDB-Tanore) matter.
The High Court however dismissed the former premier’s bid to recuse Sequerah despite the latter having disclosed that he and former 1MDB general counsel Jasmine Loo had been partners in a law firm.
Loo, is believed to be a former associate of fugitive financier Low Taek Jho, or Jho Low, the alleged mastermind behind the 1MDB scandal. She was arrested and remanded by police in July for 1MDB-related investigations.
During lengthy submissions on 17 August, Shafee argued that there is a real danger of bias should Sequerah continue to hear the matter.
He added that even if Loo is not called to testify in the trial, she is still an important player who had a role in the matrix of the case.
The court, he argued, had to make a value judgement, particularly in relation to the documents that were prepared by Loo, which have been cited by other witnesses in this trial. Shafee questioned if such a determination could be made.
Presence of Personal Bias
Interestingly, among the various reasons that warrant a judge to recuse himself, one of the most common and compelling reasons is the presence of personal bias or a conflict of interest. If a judge has a close personal relationship with a party, their attorney, or has a financial interest in the outcome of the case, it can compromise their ability to make impartial decisions.
In asking for the court to dismiss the ex-PM’s application, the prosecution meanwhile contended that there is no nexus (connection) between the issues in this trial and the past employment history that Sequerah and Loo share.
During submissions on 17 Aug 17, deputy public prosecutor Kamal Bahrin Omar also argued that there was no real danger of bias, and that the defence lacked evidence to support this claim.
Kamal noted that the firm did not do any work for 1MDB. He also said that there was no personal friendship between the judge and Loo. Furthermore, he highlighted that there was also no prior link between the judge to 1MDB.
In delivering his decision on Najib’s application, Sequerah said he had not had any communications with former 1MDB general counsel Jasmine Loo — either personally or professionally — since she left Messrs Zain & Co in 2008.
He added that the legal test was that there was a real danger of bias, which Najib had failed to prove.
Burden of Proof
“The burden is on [Najib] to prove that there is a real danger of bias …. the material facts are based solely on the ground that I was a partner at the time she was a partner [of the firm]. Since [Loo’s] departure in 2008, there was no form of relationship. I don’t think the applicant has discharged the burden of proof that there is a real danger of bias [should I continue to preside over the trial],” the judge said on Friday (Aug 18).
He added that per former 1MDB chief executive officer Datuk Shahrol Azral Ibrahim Halmi’s testimony, Loo’s involvement in 1MDB commenced sometime in 2011, and this had nothing to do with the period of the past employment history that Sequerah and Loo share.
The judge said it was also not shown that he had a personal relationship or pecuniary (monetary) interest with Loo.
Sequerah also stressed that one of the most important components of the judges’ oath is to preserve and defend the Constitution, including the right to a fair trial.
“It is therefore the duty of a judge to ensure the right to a fair trial is preserved in the discharge of his or her duties irrespective of the personalities involved,” he said.
Sequerah also noted that the defence had submitted that he should have made the disclosure much earlier, when Loo’s involvement in the case became apparent.
To this, he said: “In respect of this, no amount of gazing into the crystal ball would have armed me with the knowledge that Jasmine Loo will be apprehended, it being disclosed during the trial that she was a fugitive from justice, much less be called as a witness in this case.
“It was only when Loo was arrested, and upon the insistence of the defence, that the prosecution disclose whether they will be calling her as a witness, to which incidentally, the prosecution has not [to date] provided an affirmative answer that I decided to make the disclosure. This to me was the earliest and most appropriate time to make such a disclosure.”
Citing case laws, he added that the fact that Loo and him were partners is not a subject hidden from the public eye and need not be disclosed. He also said that past associations including employment history are not sufficient to show a real danger of bias.
Other Reasons For A Judge To Recuse Himself:
- Previous Involvement
A judge should recuse themselves if they have previously presided over the same case, particularly if it has been remanded for a new trial or if there is a need for reconsideration. Continuity and consistency in the legal process are vital, and having a fresh perspective from a different judge can help ensure fairness.
- Familial Relationships
If a judge has familial relationships with any of the parties involved in a case, it can raise concerns about their impartiality. This includes close relatives, such as parents, siblings, children, or spouses, who may have a direct or indirect interest in the case’s outcome.
- Prejudicial Statements or Actions
A judge should recuse themselves if they have made prejudicial statements or taken actions that indicate a predisposition toward one party or a particular outcome. Public trust in the judiciary is eroded when judges appear biased or unprofessional.
- Personal Feelings or Prejudices
Even if a judge does not have a direct conflict of interest, they should consider recusal if they hold personal feelings or prejudices that could affect their impartiality. Judges are expected to set aside personal beliefs and emotions in favor of a fair and objective assessment of the facts and the law.
- Appearance of Impropriety
In addition to actual bias or conflict of interest, judges must also consider the appearance of impropriety. If circumstances create a perception that the judge may be biased or unfair, it can undermine public confidence in the legal system.
- Medical or Psychological Impairment
In cases where a judge’s mental or physical health is impaired to the extent that it affects their ability to make sound judgments, recusal is both ethical and practical. Ensuring that judges are mentally and physically fit is essential for upholding the integrity of the judicial process.
Partners In A Law Firm
Meanwhile, back to 1MDB-Tanore, Najib’s application filed last month came after Sequerah’s disclosure that he and Loo were once partners in law firm Messrs Zain & Co almost a decade ago.
Sequerah said they were partners in the law firm when he was still a practising lawyer 10 to 15 years ago.
The judge started in the firm as a legal assistant in the litigation department in 1996, and worked until 2000. He was then made a partner in 2001, and was in that position until June 2014. He subsequently joined the Judiciary, and was elevated to the Court of Appeal in January this year.
Loo joined the firm as a legal assistant in the corporate department in January 1998. She was made a partner in January 2004 in the said department, and subsequently left the firm in December 2008.
Sequerah’s comments in the court came after Loo’s arrest by the authorities last month. Loo, a central figure in the 1MDB scandal, fled Malaysia in 2018, and was a wanted person by the authorities.
The defence has filed for an appeal on the High Court ruling against the call for Sequerah’s recusal.
In conclusion, the principles of justice and fairness are at the core of any functioning legal system. Judges play a pivotal role in upholding these principles, and their impartiality is paramount.
It should be noted that recusal is not a sign of weakness but a demonstration of ethical responsibility.
When judges recuse themselves for valid reasons, it reinforces public trust in the judiciary and ensures that justice is not only done but seen to be done.
It is essential that judges exercise discretion and err on the side of caution when faced with circumstances that raise doubts about their ability to remain impartial.
Do you now think that Judge Collin Lawrence Sequerah should have recused himself from the 1MDB-Tanore trial? Do share your thoughts. — NMH
Datin Hasnah is the co-founder and CEO of New Malaysia Herald based in Kuala Lumpur, Malaysia.
With an extensive background in mass communication and journalism, she works on building up New Malaysia Herald and it’s partner sites. A tireless and passionate evangalist, she champions autism studies and support groups.
Datin Hasnah is also the Editor in Chief of New Malaysia Herald.