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2022 MarsdenLR 1212
HIGH COURT MALAYA KUALA LUMPUR
FARINA FARIKHULLAH KHAN – Appellant
Versus
RAKIAH MOHD SHAH – Respondent
[Civil Suit No: WA-24NCvC-2966-09/2022]
Past professional relationships do not disqualify judges unless there exists a real danger of bias, which must be evaluated on a case-by-case basis.
Headnote:(A) Mental Health Act 2001 – Sections 52 and 71 – Recusal due to perceived bias based on past relationships of Judge and counsel – Past relationships, without evidence of real danger of bias, do not disqualify Judges from hearings. The recusal application is unsubstantiated as there is no direct link to the proceedings. (Paras 5, 10, 15)
(B) The Judiciary should maintain impartiality, and suggestions of bias must not undermine the integrity of the legal process. The decision on whether to recuse should be based on fact-specific inquiries and not on mere assumptions of bias. (Paras 2, 12)
Facts of the case: The Plaintiff sought the court's intervention for an order regarding the Defendant's mental condition under the Mental Health Act. The matter involves family dynamics, and the Plaintiff expressed concern over potential bias due to the presiding Judge's past association with a family member.
Findings of Court: There is no valid basis for recusal as the Plaintiff's argument does not substantiate a real danger of bias. The presiding Judge can effectively adjudicate the matter.
Issues: The court addressed whether a perceived bias based on past professional associations warranted disqualification of the Judge.
Ratio Decidendi: The court established that past associations do not inherently indicate bias and affirmed that each recusal request should be rigorously evaluated based on case-specific facts.
Result: The application for recusal is denied.
JUDGMENT
[1] The Learned Counsel for the Plaintiff sought a mention before this Court to intimate the Applicant's concern on possible biasness on the part of the presiding Judge hearing this matter. The basis cited was on the premise that the matter concerned a family issue whereby the Applicant is seeking a Court order for orders pursuant to s 52 Mental Health Act 2001 . The order pertains an inquiry directed to determine the Defendant's mental condition. In the event it is found that the Defendant (who is the mother to the Plaintiff) is mentally disordered, then a further order that the Plaintiff be committed as sole guardian to be in charge of the Defendant's affairs under s 71 of the Act. The Plaintiff is also seeking to be appointed with the powers of management of the Defendant, amongst others.
[2] Before this Court is now also an application for interveners - 7 in total who happened to be the siblings to the Plaintiff and the other children of the Defendant. This application is yet to be heard by this Court.
[3] The basis of the Plaintiff's concern according her learned counsel is that the presiding Judge used to be colleagues with one of the Defendant's grandchildren, the son of the 2nd proposed Intervener to be exact. On the basis that the relationship is that of former colleagues, the Plaintiff suggested that it may be better for the matter to be heard by another Court as the matter may not end well and the situation may be awkward. It was the Plaintiff's submission that to avoid such embarrassment and possible contention as a ground for appeal later on, there would be no prejudice for the matter to be heard before another Judge.
[4] Looking at this matter, this Court finds that such suggestion which seem to be an oral application by the Plaintiff does not pass the test of 'real danger of bias'. First of all, the former colleague/son of the 2nd proposed Intervener is not even named as an Intervener or a party to the proceedings. There is not even a guarantee that his name or his role will ever creep up in the papers to be considered for adjudication in the proceedings.
[5] Past relationship per se is not generally a ground to disqualify or ground for recusal of the presiding Judge - Glomac Resources Sdn Bhd v. Majlis Agama Islam Wilayah Persekutuan & Anor,
"Any suggestion that the counsel who were friends of a presiding Judge should not appear in a matter before him had to be deprecated as it implied that the Judge would not be able to hear a matter fairly just because counsel for one of the parties was a friend. Judges were beholden to their constitutional oath of office and were guided by the Judges' code of ethics and their own conscience and moral compass. Judges in discharging their constitutional duties were blind and impervious to any underlying friendship or past association as partners or colleagues or acquaintances from legal practice. "
[6] This Court further refers to the judgment at para 21-24:
"The recusal application in its present form has wide implications and ramifications to the administration of justice in this country. It raises an obvious practical problem and is one that affects or impacts upon members of Judiciary regardless of whether they are appointed from the practising Bar or from the legal and judicial services. "
[7] The basis upon which the recusal is sought, if taken to its logical conclusion, would mean that Judges should not hear matters where counsel or the federal counsel/senior federal counsel appearing before them were at one time their colleague, whether from the same law firm or from the Attorney General's chambers.
[8] In this regard, it is interesting to note that the Judiciary in England and Wales does not view past association as an impediment to a Judge's ability to discharge his or her duty impartially and this is expressed quite clearly in Part 7.2.4 of the Chapter on 'personal relationships and perceived bias' in the Guide to Judicial Conduct 2013 publishe
