Nescit vox missa reverti – “A word once spoken can never be recalled” (Horace).
The risk of the written word – effect of extra-judicial views on impartiality of judges
by Chan Kheng Hoe, Head of Construction Law, Chong + Kheng Hoe
If a spoken word cannot be recalled, what more one that is written down?
His lordship, Lim Chong Fong J, found himself in an interesting position when counsel in EA Technique (M) Sdn Bhd v Malaysia Marine and Heavy Engineering Sdn Bhd and another case (2020) sought his recusal. The basis? Apparently, the learned judge had expressed his views in a prior co-authored book as well as a singularly authored article as to whether a floating, production, storage and off loading [FPSO] vessel is a fixture susceptible to adjudication under the Construction Industry Payment and Adjudication Act 2012 [CIPAA].
Such views of the learned judge had previously been considered by Lee Swee Seng J (now JCA) in MIR Valve Sdn Bhd v TH Heavy Engineering Bhd and other cases (2018) who disagreed with the views expressed by Lim J.
The test, when a judge is asked to recuse himself, is whether there is a “real danger” of bias (Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasama-sama Serbaguna Sungei Selangor Dengan Tanggungan, 1993). Counsel for Malaysia Marine and Heavy Engineering Sdn Bhd [MMHE] suggested that since Lim J had made his views known not once, but twice, in previously authored book and article, there must be a reasonable perception of bias on the part of the learned judge on this particular topic.
Of course, whether there is a real danger of bias in any case would very much depend on the circumstances. The English Court of Appeal in Locabail (UK) Ltd v Bayfield Properties Ltd and Another & Other Cases (2000) sets out various circumstances by way of illustration as to what would constitute a real danger of bias or otherwise. Specific to the particular recusal request in EA Technique (M) Sdn Bhd, the court held that “(the) mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection.” Of course, the English Court of Appeal goes on to say that if at all there is any doubt, such doubt ought to be “resolved in favour of recusal”.
In the Singaporean case of BOM v BOK and another appeal (2019), the learned Andrew Phang Boon Leong JA was faced with a similar predicament arising from an article written by himself prior to his judicial appointment. His lordship eloquently dismissed the objection by reference to Lord Sumption who, in response to critique of his extra-judicial lectures, wrote:
“…there is no point comparing my lectures with my judgements…and finding inconsistencies between them. Of course they are inconsistent. As a judge, I am not there to expound my own opinion. My job is to say what I think that law is. By comparison, in a public lecture, I am my own master. I can allow myself the luxury of expressing approval or dismay about the current state of the law…”
Lim J thereafter declined the request for his recusal despite acknowledging that he had formed a prior view on the issue, as he would not (as a sitting judge) be bound by his own prior views.
The position of a judge who had expressed prior views in articles or books is really not very different from a judge who had expressed prior views in earlier cases. A High Court judge faced with a novel point of law may well express his views as to what the law would or should be. He surely cannot be recused in a subsequent case involving the same point of law simply because of the views he had expressed.
Under such a circumstance, the benefit then falls on one party to remind the judge of his earlier views (in the hope and perhaps expectation that the judge continues to support them), and the onus falls on the counter party to persuade the judge to change his mind. However the judge decides, there is always the avenue of appeal.
If a judge cannot be recused because of pronouncements of law that he had made in previous cases, why would the situation be any different just because his views were expressed in prior books or articles? The fact remains that the judge can still be dissuaded from maintaining his prior view.
Or in the simpler words of Dr Paul Samuelson, Nobel prize winner for economics in 1970, “when events change, I change my mind”.
Author
Chan Kheng Hoe (kh.chan@ckh.law)
List of cases:
BOM v BOK and another appeal [2019] 1 SLR 349.
EA Technique (M) Sdn Bhd v Malaysia Marine and Heavy Engineering Sdn Bhd and another case [2020] 11 MLJ 353.
Locabail (UK) Ltd v Bayfield Properties Ltd and Another & Other Cases [2000] 1 All ER 65.
Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasama-sama Serbaguna Sungei Selangor Dengan Tanggungan [1993] 3 MLJ 1.
MIR Valve Sdn Bhd v TH Heavy Engineering Bhd and other cases [2018] 7 MLJ 796.
List of statutes:
Construction Industry Payment and Adjudication Act 2012.