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The Prime Minister Datuk Seri Dr Mahathir Mohamad was reported in The Star, 31 July 2001, as saying that judges who have their own stand on a particular issue and disagree with certain laws passed by Parliament should disqualify themselves from hearing cases involving such laws.

While the Bar Council shares Dr Mahathir's view that a judge should not be biased but be independent, the Council firmly advocates that the mere fact that a judge takes a different viewpoint on the law cannot be a sufficient ground to support an allegation of bias against him. The position is different where a judge faces a conflict of interest with the case before him, such as having a personal relationship with the litigant. In such cases, he should recuse himself from hearing the case.

This situation of a conflict of interest must be distinguished from the judge's role in interpreting the law. An important role of an independent judge is to interpret the law, be it case law previously decided by judges or statutes passed by Parliament, and then to apply his interpretation to the facts of the cases before him. His ensuing judgment then becomes an addition to the existing body of case law. While general legal principles of interpretation guide the mind of the judge, a subjective element is always inherently present. Thus legal jurisdictions worldwide have always had conflicting case law on certain issues at any one time.

While a judge's duty is not to create laws but to interpret them, it is in the above context that a judge may justifiably state his stand on a particular issue and disagree with the application or interpretation of certain laws passed by Parliament. Surely just because a judge has a dissenting view does not mean that he should withdraw from hearing a case. This cannot automatically mean that he is prejudiced. The Bar Council views the position that a judge who disagrees with the application or interpretation of certain laws should disqualify himself from hearing a case involving such laws as being legally unsound. If the judge disqualifies himself purely on that basis, then there would be no dissenting judgments. It is usual for a judge, more evidently one who sits on the bench of appellate courts, not to concur with earlier decisions of Courts where he thinks that the decisions were wrong in law. Indeed, dissent is an integral function of our appellate courts.

The Bar Council reiterates its stand that a judge must exercise his independent role without fear or favour. A judge should condemn the use of a particular law where its current application is contrary to the original intention of Parliament when it passed that law. In doing this, he is fulfilling his duty to the proper administration of justice and the rule of law.

Dated this 3nd day of August 2001.

Mah Weng Kwai
Chairman
Bar Council

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