MARCH 5 — In “Explained: Why Rosmah couldn’t ‘reset’ her bribery trial and lost all three tries to remove judge” Malay Mail’s Ida Lim sought to set out the facts leading to the “final nail in the coffin” for Datin Seri Rosmah Mansor’s recusal efforts to remove then-High Court judge Datuk Mohamed Zaini Mazlan from presiding over her case.

If successful, it would effectively stop the learned judge from delivering his judgment.

The final nail in the coffin was the Federal Court decision dismissing Rosmah’s appeal to have Justice Zaini removed from presiding over her case.

In dismissing her appeal, the apex court agreed with the Court of Appeal’s findings, ruling that Rosmah had failed to satisfy the necessary legal test of showing a “real danger of bias.”

The “real danger of bias” test was laid down in the English case of Regina v Gough more than 30 years ago and has since been adopted by the apex court  in a succession of cases starting with the case of Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasama-Sama Serbaguna Sungai Gelugor dengan tanggungan in 1999, followed by the case of Mohamed Ezam bin Mohd Nor & Ors v Ketua Polis Negara  in 2002 and the case of Dato’ Tan Heng Chew v Tan Kim Hor in 2006.

Fourteen years later, the apex court had the occasion in the  case of Public Prosecutor v Tengku Adnan bin Tengku Mansor (2020) to reiterate that the test applicable in the country is the real danger of bias test.

What does “real danger of bias” mean? In explaining the expression, Lord Goff in Regina v Gough explained as follows:

“In my opinion, if, in the circumstances of the case (as ascertained by the court) it appears that there was a real likelihood, in the sense of a real possibility, of bias on the part of a justice or other member of an inferior tribunal, justice requires that the decision should not be allowed to stand.

“Furthermore, I think it unnecessary, in formulating the appropriate test, to require that the court should look at the matter through the eyes of a reasonable man, because the court in cases such as these personifies the reasonable man; and in any event, the court has first to ascertain the relevant circumstances from the available evidence, knowledge of which not necessarily be available to an observer in court at the relevant time.

“Finally, for the avoidance of doubt, I prefer to state the test in terms of real danger rather than real likelihood, to ensure that the court is thinking in terms of possibility rather than probability of bias.

“Accordingly, having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him.”

The test requires the court to ascertain the relevant circumstances from the available evidence.

Each case has to be decided on its own facts. At the same time, the court has to be vigilant not to allow parties to do “judge-shopping” by way of recusal of judges.

Anyway, kudos to Ida Lim for a succinct piece on the final nail in the coffin on Rosmah’s bid to recuse the presiding judge.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.