Bias as a prop

01 Jun 2014


THE Supreme Court had lately been hearing matters related to the closure of channels of a certain network, as well as the alleged actions of other channels of inciting violence and hatred against the said network.

During these proceedings, an issue was raised pertaining to the perceived bias of one of the judges. This allegation of bias had been made on the basis of the Geo network’s owner purportedly being a ‘close relative’ of the judge.

The allegation was accompanied by criticism of both the judge and the judiciary as a whole. Such criticism was made in tandem with talk shows criticising the judge for not recusing himself. Mysterious banners appeared in the capital with the apparent intent of exerting pressure on the judge to step aside.

Allegations shouldn’t automatically lead to recusal from a case.

It may not be evident from the sequence of events but any recusal resulting from this situation would have had far-reaching consequences. If the judge had succumbed to the pressure tactics of certain quarters, it would have been seen as a huge blow to the concept of an independent judiciary rendering decisions without any influence. It would have further implications for the judiciary in terms of its perceived stature vis-à-vis the media, and would have encouraged individuals to initiate smear campaigns against any judge they did not like for whatever reason.

It was perhaps in the light of this that the judge decided to hear the case and also outlined his reasons in a judicial order. This was followed by his detractors stating predictably that the principles of natural justice had been breached, and that no person could be a ‘judge in his own cause’. Furthermore, unfounded whispers could also be heard of the judiciary’s alleged bent towards one media group to the detriment of other media organisations.

This was the situation despite the fact that the Supreme Court had on various occasions laid down the principles to be followed in determining whether recusal from a case was required or not.

Firstly, the Supreme Court has on numerous occasions held that a superior court judge is the keeper of his own conscience, and, hence, it is for him and him alone to decide whether or not to hear a certain case.

Although the detractors often quote Article 4 of the Supreme Court’s Code of Conduct to convey that a judge is bound to recuse himself in case of personal connection of any sort with one of the parties, they often lose sight of the fact that in terms of this article, it is the domain of the judge himself to determine whether a personal connection that would require his recusal exists or not.

Where the law is concerned, in order to determine personal bias, it must be seen whether there is a ‘real likelihood’ of prejudice being caused to the litigant by the non-recusal of a judge from the bench. ‘Real likelihood’ is seen by the Supreme Court in terms of the apprehensions of a reasonable man apprised of the facts, and not simply allegations based on mere suspicions.

In this case, the judge is said to have not been in any significant contact with the owner of the media house for an extended period of time; he was not directly related to him by blood; and was not in any way expected to gain from the subject matter of the proceedings. The extent of his relationship, or lack thereof, was also mentioned in an order last month that was passed by the judge in relation to an application for the revival of Constitutional Petition No. 51 of 2010 seeking the regulation of cable operators.

Hence, although it is true that even a far-flung connection may cast aspersions on the judge giving rise to suspicions of partiality, such doubts are not sufficient to require him to recuse himself from the case. In the eyes of the law at least, the judge may have been well within his rights to keep hearing the matter.

The law has clearly enunciated the limits of discretion to be exercised by the judges in deciding whether or not to recuse themselves from a case. The basis of such discretion is to discourage attempts to attain a bench of one’s own choice by initiating smear campaigns against sitting justices.

If seen from this perspective, the judge’s decision was an important and necessary step to protect the independence of an institution. In fact, any recusal arising in the midst of a vicious smear campaign would have sent a dangerous signal to the public that the independence of the judiciary could conveniently be sacrificed at the altar of perceptions.

The writer is an attorney at law.

Twitter: @basilnabi

Published in Dawn, June 1st, 2014