Writing their way into trouble

An Ex-Minister and a prominent businessman in Malaysia probably woke up on Friday, the 13th of January, 2006, and whilst having breakfast and browsing through the morning paper, discovered their worst nightmare.

They were found in judgments delivered by the Court of Appeal (the second highest Court of the land) consisting of 3 judges the previous day and reported in the newspapers that morning to have committed a crude case of economic duress against the Appellant that was before the Court.

Adverse remarks were made against the Ex-Minister that fell nothing short of finding that he had abused his ministerial powers.

The prominent businessman was found to have had the Ex-Minister's patronage that favoured him in the award of a government related contract and was also found to have committed criminal breach of trust.

Neither the Ex-Minister or the prominent businessman were parties to the proceedings in the Court of Appeal nor were they witnesses in the Court of first instance. Judgment was delivered in favour of the Appellant at the Court of Appeal substantially overturning the decision of the Learned High Court Judge at first instance.

The fact that such adverse and disparaging remarks ought not to have been made against 3rd parties who had no opportunity to defend themselves was so overwhelming that the Federal Court in Malaysia, the country's Apex Court had no hesitation in expunging those remarks from the written judgment of the Court of Appeal. (A procedure adopted from Indian authorities but which has no precedent in England).

Of greater difficulty for the Federal Court was to determine if such adverse and disparaging remarks against 3rd parties made by the Court of Appeal in their written judgments showed a real danger of bias on the part of the Court of Appeal against the Respondent in the Court of Appeal.

There being a dearth of authorities on the issue of bias emanating from the written judgment of the Court, the Federal Court was required to consider the issue of whether bias can emanate from a written judgment.

The Federal Court was of the view that it did not matter at which stage of the proceedings bias is said to have arisen. The real danger of bias can arise at any stage in a judicial or quasi-judicial proceeding or even in an administrative tribunal. The crucial point as found by the Federal Court in determining the presence of bias is to objectively enquire whether the facts and circumstances asserted to be evidence of bias affirmatively answers the test for real danger of bias as formulated in RV Gough [1993] AC 646.

The Federal Court set aside the whole decision of the Court of Appeal. The Federal Court concluded that although the remarks and findings may appear to have been directed at third parties, the consequence of those remarks and findings fell upon the Respondent in the Court of Appeal. The Respondent was rolled up with the third parties and was assumed as the ultimate beneficiary of the actions and conduct of the third parties. The judgments therefore could not stand the test of real danger of bias.

The decision is ground breaking certainly in Malaysia and the rest of the Commonthwealth. The full text of the grounds of judgment can be found on the Consulegis Website.



For further details please contact:
Selvanandam Sivaneindiren
Cheah Teh & Su, Kuala Lumpur, Malaysia
17th Floor Wisma Denmark
86, Jalan Ampang
MY - 50450 Kuala Lumpur
Malaysia
e-mail: litigation@ctslawyers.com.my