Doctrine of bias in Singapore law

A depiction of Lady Justice on the tympanum of the Old Supreme Court Building

Bias is one of the grounds of judicial review in Singapore. If actual bias on the part of a judge or tribunal can be proved by a party to a legal proceeding, or on the part of a public authority by a person aggrieved by its decision, the High Court can quash the judgment or decision.

In addition, a judgment or decision may be set aside on the basis of apparent bias, a reflection of the principle that "justice should not only be done, but should manifestly and undoubtedly be seen to be done". The legal test for establishing apparent bias in Singapore has been the subject of some controversy. In the cases of Jeyaretnam Joshua Benjamin v. Lee Kuan Yew (1992) and Tang Liang Hong v. Lee Kuan Yew (1997), the Court of Appeal stated the applicable test to be one of "reasonable suspicion", that is, the court should ask itself whether "a reasonable and fair-minded person sitting in court and knowing all the relevant facts [would] have a reasonable suspicion that a fair trial for the applicant was not possible". However, after a number of cases which established that a "real likelihood" test should be applied in the UK, the High Court in Tang Kin Hwa v. Traditional Chinese Medicine Practitioners Board (2005) expressed the obiter view that there was in fact no material difference between the two tests. In Re Shankar Alan s/o Anant Kulkarni (2006), a different High Court judge disagreed with this view, holding that the reasonable suspicion test is less stringent as it requires a lower standard of proof than satisfaction on a balance of probabilities. He expressed preference for the reasonable suspicion test over the real likelihood test. As of November 2010, the Court of Appeal had not yet ruled on the matter.

Actual bias

Bias is one of the grounds of judicial review in Singapore. It is an aspect of the principle nemo iudex in causa sua – no one should be a judge in his or her own cause – which is regarded as one of the twin pillars of natural justice.^[1] If actual bias on the part of a judge or tribunal can be proved by a party to a legal proceeding, or on the part of a public authority by a person aggrieved by its decision, the High Court can quash the judgment or decision.

Apparent bias

Opposition politician Joshua Benjamin Jeyaretnam in November 2005. In a 1992 appeal arising from a suit brought against him by the then Prime Minister Lee Kuan Yew for slander at a political rally during the 1988 general election, the Court of Appeal held that a "reasonable suspicion" test applied when determining if there was apparent bias by a judge.

Regardless of whether judges are actually biased, the law requires them to recuse themselves from cases where there may be a perception that they are biased. This is based on the premise that "justice should not only be done, but should manifestly and undoubtedly be seen to be done".^[2]

In Jeyaretnam Joshua Benjamin v. Lee Kuan Yew (1992),^[3] the Court of Appeal of Singapore stated that when determining whether apparent bias exists, a "reasonable suspicion" test should be applied,^[4] that is, "would a reasonable and fair-minded person sitting in court and knowing all the relevant facts have a reasonable suspicion that a fair trial for the applicant was not possible"?^[5] The reasonable suspicion test originated in Australia, where it is known as the "reasonable apprehension" test. The current position in Australia may be best summed up thus: "[A] judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide".^[6] This is essentially the same position in Singapore, as Tang Liang Hong v. Lee Kuan Yew (1997),^[7] which applied the Australian cases Bainton v. Rajski (1992)^[8] and Re JRL, ex parte CJL (1986),^[9] indicates.

UK developments

In the UK case R. v. Gough (1993),^[10] the House of Lords articulated a "real danger of bias" test. According to Lord Goff of Chieveley, when formulating the appropriate test for apparent bias, it was "unnecessary ... to require that the court should look at the matter through the eyes of the reasonable man, because the court in cases such as these personifies the reasonable man". He took the view that the test should be stated 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".^[11]

In Locabail (UK) Ltd. v. Bayfield Properties Ltd. (2000),^[12] the Court of Appeal observed that Gough had not received universal approval in some jurisdictions.^[13] The Court was presented with another opportunity to review the matter in Re Medicaments and Related Classes of Goods (No. 2).^[14] It concluded that, in view of the jurisprudence of the European Court of Human Rights on the right to a fair trial protected by Article 6 of the European Convention on Human Rights, a "modest adjustment" to the Gough test was required. A court should first determine what are all the circumstances relevant to the allegation that the judge was biased, then ask whether a "fair-minded and informed observer" would regard those circumstances to lead to "a real possibility, or a real danger, the two being the same", that the judge was biased.^[15]

Finally, in Porter v. Magill (2001),^[16] the House of Lords reconsidered its earlier decision in Gough in the light of Locabail and Re Medicaments. It approved the two-stage test established in Locabail as modified by Re Medicaments, holding that there is apparent bias when "the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased". It omitted from the test the reference to "real danger" as it was not mentioned in European Court of Human Rights cases and "no longer serve[d] a useful purpose here".^[17]

Subsequent cases have focused attention on the fact that the view of the informed observer has sometimes become dangerously close to becoming the court's view.^[18] In dealing with this, the court must adopt the public's view of the facts, not its own view. This distinction is not one of semantics, but bears great significance as it signifies the acceptance of public perception in the judicial process.

Singapore developments

Allegations by an acupuncturist that there had been apparent bias by three members of the Traditional Chinese Medicine Practitioners Board which had suspended him from practice led to a 2005 case in which the High Court expressed the view that there is no real difference between the "reasonable suspicion" and "real likelihood" tests.

Tang Kin Hwa v. Traditional Chinese Medicine Practitioners Board (2005)

Following the legal developments in the UK, the test for apparent bias in Singapore was extensively reconsidered by the High Court in the 2005 case Tang Kin Hwa v. Traditional Chinese Medicine Practitioners Board.^[19] On the facts of the case, it was unnecessary for Judicial Commissioner Andrew Phang to have decided definitively whether the correct test was the reasonable suspicion or the real likelihood test.^[20] Nonetheless, he expressed the obiter view that the "reasonable suspicion of bias" test established in Jeyaretnam Joshua Benjamin and Tang Liang Hong was not significantly different from the English "real likelihood of bias" test (also known as "real possibility of bias" test). According to him, "[t]he common substance of both tests appears, in a nutshell, to be this: The key question is whether or not there was a perception on the part of a reasonable person that there would be a real likelihood of bias".^[21] The concept of "likelihood" entails "possibility" and not "probability". Phang J.C. opined that this is simply another way of stating that there is a "reasonable suspicion" on the part of the person concerned, meaning that although the concept of "reasonable suspicion" is supposed to be of a less stringent standard, this standard is reflected in the concept of "possibility" and thus there is essentially no substantial difference in the two tests. In addition, the word real in the term real likelihood of bias cannot mean "actual", as the test after all pertains to apparent bias and not actual bias.^[21]

Phang J.C. also thought that "one ought not to draw a sharp distinction between the court's perspective ... and that of the public" as both are "integral parts of a holistic process". The practical reality in every case is that the court has to take into consideration the perspective of the public, and hence personifies the reasonable man.^[22] He cautioned that in deciding a case, a court has to focus on the substance and not be unduly distracted by the form of the terminology utilized.^[23] In applying either test, justice can be done and seen to be done if the court, personifying the reasonable man, takes a broad commonsense approach without inappropriately relying on special knowledge, the minutiae of court procedure or other matters outside the ken of the ordinary, reasonably well informed member of the public.^[24]

Re Shankar Alan s/o Anant Kulkarni (2006)

The following year, a different judge of the High Court departed from the view taken in Tang Kin Hwa. In Re Shankar Alan s/o Anat Kulkarni (2006),^[25] Sundaresh Menon J.C. definitively answering the question left open by Phang J.C. as to whether the two tests for apparent bias were the same. He thought that there was a real difference between the reasonable suspicion and real likelihood tests.^[26] In his opinion, "suspicion" suggests a belief that something that may not be provable could still be possible. "Reasonable" suggests that the belief cannot be fanciful. Here the issue is whether it is reasonable for the one to harbour the suspicions in the circumstances even though the suspicious behaviour could be innocent. On the other hand, "likelihood" points towards something being likely, and "real" suggests that this must be substantial rather than imagined. Here, then, the inquiry is directed more towards the actor than the observer. The issue is the degree to which a particular event is not likely or possible.^[27]

Menon J.C. disagreed with both Lord Goff in Gough and Phang J.C. in Tang Kin Hwa in that he thought the shift of the inquiry from how the matter might appear to a reasonable man to whether the judge thinks there is a sufficient possibility of bias was "a very significant point of departure".^[28] The real likelihood test is met as long as the court is satisfied that there is a sufficient degree of possibility of bias. Although this a lower standard than satisfaction on a balance of probabilities, this is actually directed at mitigating the sheer difficulty of proving actual bias, especially given its insidious and often subconscious nature. The reasonable suspicion test, however, is met if the court is satisfied that a reasonable member of the public could harbour a reasonable suspicion of bias even though the court itself thought there was no real danger of this on the facts. The difference is that the driver behind this test is the strong public interest in ensuring public confidence in the administration of justice.^[29]

Ultimately, Menon J.C. reiterated that the test applicable in Singapore was the reasonable suspicion test, as the Court of Appeal had stated in Jeyaretnam Joshua Benjamin and Tang Liang Hong. He also expressed preference for this test for the following reasons, among others:^[30]

• If the court adopts the real likelihood test, it will in reality be requiring the complainant to show that the judge was actually biased, though with a lower standard of proof based on a sufficient degree of possibility.
• There is a risk that if the real likelihood test is applied, the court appears to be determining that it is possible or likely that the judge was biased. Therefore, the test may lead to dissatisfaction in the administration of justice on the part of members of the public, which is exactly what the doctrine of apparent bias was intended to avoid.
• Conscious of the negative consequences of the real likelihood test on the judge in question and the administration of justice referred to in the previous paragraph, the court may lose sight of the rationale behind the apparent bias doctrine – that justice is not merely done but that the public must see without doubt that it is done.

Furthermore, Menon J.C. argued that the real likelihood test requires there be a sufficient degree of bias, but this is "utterly imprecise" and "inherently, indeed impossibly, subjective". In contrast, the reasonable suspicion test avoids this problem as it directs the court's mind not towards the degree of possibility of bias but towards the suspicions the court thinks a fair-minded member of the public could reasonably entertain on the facts.^[31]

Shankar Alan is not the final say on the matter. As Phang J.C. put it in Tang Kin Hwa, "a definitive view ought to be expressed by the Singapore Court of Appeal itself. Principles of natural justice are so fundamental that any interpretation or elaboration of them must have no less than the imprimatur of the highest court of the land."^[32] As of November 2010, the opportunity for the Court of Appeal to rule on the matter had not arisen.

Academic views

The view has been taken by scholars that there is no practical difference between the reasonable suspicion and real likelihood tests. In a 2008 paper,^[33] Lionel Leo and Chen Siyuan concede that there is a slight difference in the meaning of the terms real likelihood and reasonable suspicion, but are of the view that this difference is hardly material. The gap between the two tests is considerably narrow and, in practice, the two tests are unlikely to yield different results in most cases.^[34] It was stated in Cook International Inc. v. B.V. Handelmaatschappij Jean Delvaux (1985)^[35] that the contrast between the tests was between reasonable suspicion of bias on the one hand, and the appearance of a real likelihood of bias on the other. Hence what must be established is the appearance of a real possibility of bias and this is not very different from establishing that a fair-minded member of the public could have a reasonable suspicion that a fair trial for the litigant was not possible.^[36]

The reasonable suspicion test has the intention of protecting public confidence, but Leo and Chen wonder how accurately this test actually reflects the public's view. The test as formulated in Jeyaretnam Joshua Benjamin requires that the reasonable man be sitting in court and in the know of all the relevant facts. However, this is usually not the case. Most of the public only receives information in bits and pieces, and thus even if a case passes the reasonable suspicion test, the public may not be satisfied that there was no possibility of bias. Thus the concept that the reasonable suspicion test reflects the public’s perspective is overstated.^[37] The practical reality is that when the reasonable man is imbued with all the relevant facts, he will essentially be in the same position as the court. Therefore, the suggested approach is that the court, in personifying the reasonable man, should take into account all relevant circumstances and determine if there is the suspicion or possibility of the appearance of bias whilst being mindful to exclude considerations stemming from the individual judge's personal preferences, special knowledge and legal sophistication.^[38]

See also

• Audi alteram partem
• Nemo iudex in causa sua

Notes

1. ^ The other pillar being audi alteram partem, literally "hear the other party".
2. ^ R. v. Sussex Justices, ex parte McCarthy [1924] 1 K.B. 256 at 259, Divisional Court (England and Wales).
3. ^ Jeyaretnam Joshua Benjamin v. Lee Kuan Yew [1992] 1 S.L.R.(R.) [Singapore Law Reports (Reissue)] 791, Court of Appeal (Singapore).
4. ^ Jeyaretnam Joshua Benjamin, pp. 825–826, paras. 80 and 83.
5. ^ Jeyaretnam Joshua Benjamin, p. 825, para. 80, citing R. v. Liverpool City Justices, ex parte Topping [1983] 1 W.L.R. 119 at 123, High Court (Queen's Bench Division) (England and Wales).
6. ^ Ebner v. Official Trustee in Bankruptcy [2000] HCA 63, (2000) 205 C.L.R. 337, High Court (Australia).
7. ^ Tang Liang Hong v. Lee Kuan Yew [1997] 3 S.L.R.(R.) 576 at 597–598, para. 51, C.A. (Singapore).
8. ^ Bainton v. Rajski [1992] 29 N.S.W.L.R. 539 at 541, Court of Appeal (New South Wales, Australia).
9. ^ Re JRL, ex parte CJL (1986) 161 CLR 342, H.C. (Australia).
10. ^ R. v. Gough [1993] UKHL 1, [1993] A.C. 646, House of Lords (UK).
11. ^ Gough, p. 670.
12. ^ Locabail (UK) Ltd. v. Bayfield Properties Ltd. [1999] EWCA Civ 3004, [2000] Q.B. 451, Court of Appeal (England and Wales).
13. ^ Locabail, p. 476, para. 17: see, for example, Webb v. R. (1994) 181 C.L.R. 41, High Court (Australia); Moch v. Nedtravel (Pty.) Ltd. [1996] ZASCA 2, 1996 (3) S.A. 1, Supreme Court of Appeal (South Africa); and Doherty v. McGlennan 1997 S.L.T. 444 (Scotland).
14. ^ Re Medicaments and Related Classes of Goods (No. 2) [2000] EWCA Civ 350, [2001] 1 W.L.R. 700, C.A. (England and Wales).
15. ^ Medicaments, pp. 726–727, para. 85.
16. ^ Porter v. Magill [2001] UKHL 67, [2002] 2 A.C. 357, H.L.
17. ^ Porter, p. 494, para. 103.
18. ^ R. v. Spear [2002] UKHL 31, [2003] 1 A.C. 734, H.L.; Taylor v. Lawrence [2002] EWCA Civ 90, [2003] Q.B. 528, C.A. (England and Wales).
19. ^ Tang Kin Hwa v. Traditional Chinese Medicine Practitioners Board [2005] 4 S.L.R.(R.) 604, H.C. (Singapore).
20. ^ Tang Kin Hwa, p. 612, para. 20.
21. ^ ^{a b} Tang Kin Hwa, pp. 617–618, para. 39.
22. ^ Tang Kin Hwa, pp. 618–619, para. 40.
23. ^ Tang Kin Hwa, p. 619, para. 43.
24. ^ Tang Kin Hwa, pp. 618–619, para. 40, citing Locabail, p. 480, para. 25.
25. ^ Re Shankar Alan s/o Anat Kulkarni [2007] 1 S.L.R.(R.) 85, H.C. (Singapore).
26. ^ Shankar Alan, p. 101, para. 56.
27. ^ Shankar Alan, p. 99, paras. 49–50.
28. ^ Shankar Alan, p. 103, para. 62.
29. ^ Shankar Alan, pp. 107–108, paras. 74-75.
30. ^ Shankar Alan, p. 110, para. 81, citing Webb, pp. 70–72.
31. ^ Shankar Alan, p. 111, para. 84.
32. ^ Tang Kin Hwa p. 620, para. 45.
33. ^ Lionel Leo; Chen Siyuan (2008), "Reasonable Suspicion or Real Likelihood: A Question of Semantics? Re Shankar Alan s/o Anant Kulkani", Singapore Journal of Legal Studies: 446–454, http://search.informit.com.au/documentSummary;dn=595112190038681;res=IELHSS .
34. ^ Leo & Chen, p. 449.
35. ^ Cook International Inc. v. B.V. Handelmaatschappij Jean Delvaux [1985] 2 Lloyd's Rep. 225 at 231, H.C. (England and Wales).
36. ^ Leo & Chen, p. 452.
37. ^ Leo & Chen, p. 451.
38. ^ Leo & Chen, p. 454.

References

Cases

• Jeyaretnam Joshua Benjamin v. Lee Kuan Yew [1992] 1 S.L.R.(R.) [Singapore Law Reports (Reissue)] 791, Court of Appeal (Singapore).
• R. v. Gough [1993] UKHL 1, [1993] A.C. 646, House of Lords (UK).
• Webb v. R. (1994) 181 C.L.R. 41, High Court (Australia).
• Tang Liang Hong v. Lee Kuan Yew [1997] 3 S.L.R.(R.) 576, C.A. (Singapore).
• Locabail (UK) Ltd. v. Bayfield Properties Ltd. [1999] EWCA Civ 3004, [2000] Q.B. 451, Court of Appeal (England and Wales).
• Tang Kin Hwa v. Traditional Chinese Medicine Practitioners Board [2005] 4 S.L.R.(R.) 604, High Court (Singapore).
• Re Shankar Alan s/o Anat Kulkarni [2007] 1 S.L.R.(R.) 85, H.C. (Singapore).

Other works

• Lionel Leo; Chen Siyuan (2008), "Reasonable Suspicion or Real Likelihood: A Question of Semantics? Re Shankar Alan s/o Anant Kulkani", Singapore Journal of Legal Studies: 446–454, http://search.informit.com.au/documentSummary;dn=595112190038681;res=IELHSS .

Further reading

• Elias, Sian (2005), "Singapore Academy of Law Annual Lecture 2004: Impartiality in Judging and the Passions of Mankind", Singapore Academy of Law Journal 17: 1–16, http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/saclj17&div=6  (text available online as Elias, Sian (3 November 2004) (PDF), Impartiality in Judging and the Passions of Mankind, Courts of New Zealand, archived from the original on 3 November 2010, http://www.webcitation.org/5tyFzWoUQ, retrieved 3 November 2010 ).
• Field, Andrew (2001), "Confirming the Parting of Ways: The Law of Bias and the Automatic Disqualification Rule in England and Australia", Singapore Journal of Legal Studies: 388–409, http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/sjls2001&div=23 .
• Hanif, Saima (2005), "The Use of the Bystander Test for Apparent Bias", Judicial Review 10: 78–83, http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/judire10&div=12 .
• Nwauche, E.S. (2004), "A Return to the Manifest Justice Principle: A Critical Examination of the Reasonable Suspicion/Apprehension of Bias and Real Possibility of Bias Tests for Judicial Bias in South Africa and England" (PDF), Potchefstroom Electronic Law Journal 7: 1, http://ajol.info/index.php/pelj/article/viewFile/43461/26996 .
• Olowofoyeku, Abimbola A. (2009), "Bias and the Informed Observer: A Call for a Return to Gough", Cambridge Law Journal 68: 388–409, doi:10.1017/S0008197309000373 .
• Pearson, R. Matthew (2005), "Duck Duck Recuse? Foreign Common Law Guidance & Improving Recusal of Supreme Court Justices" (PDF), Washington and Lee Law Review 62: 1799–1839, archived from the original on 3 November 2010, http://www.webcitation.org/5tyCv0srZ .
• Ross, Iain (2010) (PDF), Considering Applications to Disqualify for Bias [paper delivered at the 13th Australasian Institute of Judicial Administration Annual Tribunals Conference, Brisbane, 10–11 June 2010], Australasian Institute of Judicial Administration Incorporated, archived from the original on 3 November 2010, http://www.webcitation.org/5tyDSxSLd, retrieved 3 November 2010 .
• Thiagarajan, Premala, "Disqualification of Judges for Pecuniary or Proprietary Interests in the Outcome of Litigation" (PDF), AIAL Forum No. 38 (Australian Institute of Administrative Law), archived from the original on 3 November 2010, http://www.webcitation.org/5tyE9hEPW, retrieved 3 November 2010 .