Bias

Mere equivocal and unsubstantiated allegation of bias is no ground to question validity of action unless accusation is premised on solid foundation.

Issue of bias in a judge was a very serious matter and in the very least cogent and specific particulars thereof must be pleaded by an applicant and the same may be bolstered with plausible corroboration.

Questions of bias and prejudice are of fundamental importance in process of administration of justice which at all costs are to be free from all taints

Streams of justice must run pure and clean to maintain people's faith in judicial process, more importantly in processes involving corporal consequences

Question of bias or prejudice, in dispensation of criminal justice, are more aptly seen from angle of those, bracing gallows, as process is adversarial in nature with onus on prosecution to drive home charge on its own beyond shadow of doubt before forfeiture of freedom of life

Said magnitude of enormity entitles accused to trial free from prejudice or bias through procedure which is least embarrassing for him so as to conduct meaningful defence, and, in so doing, prosecution is, indeed, to be afforded reasonable opportunity to drive home charges against him on strength of positive proof and thereby excluding every hypothesis of innocence before noose is cast around his neck.

Principles.

Judge participating in the review of a death penalty case in which he was personally involved when he previously served as a prosecutor/district attorney

Whether violation of due process of law

Judge must recuse himself from a defendant's criminal case, based on an impermissible risk of actual bias, when he was personally involved in making a critical decision as a prosecutor earlier in the defendant's case

No attorney was more integral to the accusatory process than a prosecutor who participated in a major adversary decision; the decision to pursue the death penalty was a critical choice

Due process guarantee that "no man can be a judge in his own case" would have little substance if it did not disqualify a former prosecutor from sitting in judgment of a prosecution in which he or she had made a critical decision

Judge's denial of the recusal motion in the present case and his subsequent participation in petitioner's post-conviction appeal violated the due process clause

Appearance of bias demeaned the reputation and integrity not just of one jurist, but of the larger institution/bench of which he or she was a part

Both the appearance and reality of impartial justice were necessary to the public legitimacy of judicial pronouncements and thus to the rule of law itself

Neither the involvement of multiple members on the Bench nor the passage of time relieved the judge in question/former prosecutor of the duty to withdraw or recuse himself

Fact that the judge's vote was not the deciding vote on the multi-member bench of the court did not lessen the unfairness

Supreme Court held that due process entitled the petitioner to a proceeding in which he may present his case with the assurance that no member of the court was predisposed to find against him

Case was remanded to the court below accordingly. [Per John G. Roberts, CJ, (Minority view)]; In the present case, there was no evidence that the judge in question had actually been involved in, or formed a decision on, whether to seek the death penalty, and therefore there was no "objective risk of actual bias" such that it was fundamentally unfair for him to hear the case

Due Process Clause did not mandate recusal in cases such as the present one, it was up to state authorities and not the Supreme Court to determine whether recusal should be required]

[Per Clarence Thomas, J (Minority view); Present matter before the Supreme Court and petitioner's criminal case (that ended decades ago) were not a "single case" or "matter"

In the present matter before the Supreme Court, the criminal conviction of petitioner was not at issue; instead, the issue was a question of post-conviction relief, a separate civil matter, which was wholly different from what "R" was involved with as a prosecutor in the criminal case

Due Process Clause was not offended in the present matter as "R" had no pecuniary interest in the case and had not served as the prosecutor in the 'same proceeding'].

Rather than constitutionalize every judicial disqualification rule, the Court left such rules to legislatures, bar associations, and the judgment of individual adjudicators.

Law would not suppose a possibility of bias or favour in a judge, who was already sworn to administer impartial justice, and whose authority greatly depended upon that presumption and idea.

Respondent, who was a retired judge, was commissioned to inquire into the failure of a project undertaken during the government of a former Prime Minister/appellant

Project in question was a fraudulent project due to which the government lost large sums of public money

Commission-respondent according to his terms of reference prepared an interim inquiry report

Contention of former Prime Minister that the contents of the said interim inquiry report showed the apparent bias of the Commission against him

Validity

Test for apparent bias of Commission was whether, having considered the facts, a fair minded and informed observer would conclude that there was a real possibility that, in the light of the contents of the interim report, the Commission would not approach the remainder of the inquiry with an open mind or, in other words, that he would not conduct an impartial inquiry, at any rate so far as the conduct of the former Prime Minister was concerned

Any fair-minded observer would have regard to the fact that the Commission was an experienced High Court judge well versed in the analysis of complex facts

Commission had noted in his interim inquiry report that armed with knowledge of co-accused's deception and fraud the former Prime Minister continued to provide assistance to the co-accused, who controlled the funds for the project; that the co-accused enjoyed complete sway aided and abetted by the former Prime Minister and his cohorts who acted without any scruples or compunction; that the former Prime Minister permitted or allowed a framework which gave total control to the co-accused and permitted him to freely execute his fraud; that the former Prime Minister was the moving light behind the project, and his failure to properly inform the Cabinet and Parliament was inexcusable; that the decision to exclude senior members of the public service (from the project) was obviously made by the former Prime Minister, which suggested that such action and deliberate failure to act in accordance with the law was tantamount to misbehaviour in public office; that the former Prime Minister's public representation of the bona fides of the participants in the project was a complete misrepresentation made without any due diligence; that the former Prime Minister took no steps to protect the public interest and shut his eyes to the obvious and acted recklessly in the extreme, if not deliberately; that the former Prime Minister sought to coerce or mislead the [trustees] into transferring the land held in trust by them to an empty shell of a company, and that the former Prime Minister's conduct amounted to a pattern of gross misbehaviour which amounted to a total dereliction of duty and to substantial irresponsibility

Contents of the said interim inquiry report showed that it was expressed in such terms that a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the Commission was biased such that he would not approach the remainder of the inquiry with an open mind or, to put it in another way, he would not conduct an impartial inquiry, so far as the conduct of the former Prime Minister was concerned

Any fair-minded observer, in light of the interim inquiry report, would conclude that there was a real possibility that the Commission had made up his mind by the date of the interim report that the former Prime Minister was at the heart of the wrongdoing which led to the project in question and its collapse and would not be willing to change his mind, so that his final report would not be impartial

Commission's interim report was replete with strong and colourful language and he had used therein decisive language of a concluded finding

Interim report prepared by the Commission contained far too many firm statements of the misbehaviour of the former Prime Minister

Appeal was allowed accordingly and Judicial Committee of the Privy Council directed that the respondent-Commission should take no further part in the Inquiry Commission.

Definition and meaning.

Bias, or the preception of bias has to be established.

Allegations of bias could not be made against an office.

Apprehension of bias could not be extended to judicial bias on ground that since a Judge while deciding a similar matter had already expressed an adverse opinion, thus, other case of similar nature might have same fate.

Judge of superior court is a Judge of conscience and he himself has to decide about his competency to hear a case.

Mere institution of a suit on behalf of Banking Company against some borrower/defendant (petitioner in the present case) during his legal practice by a Judge would not be enough reason to preclude the Judge from hearing a matter that too after a period of more than one and half decade, unless there was an eminent act to reasonably assume the grudge, hostility or bias

If, however, some apprehensions of such kind occurred in the mind of the litigant, the same could have been brought to the notice of the Judge, who, then, in all fairness should have stayed off his hands

Where no such attempt had been made, such plea of bias appeared to be an afterthought, and had to be repelled.

Principles.

Test to determine existence of bias.

Ordinarily mere such allegations would not be sustainable in absence of an tangible evidence in support thereof.

Test.

Bias is a state of mind which if exhibited by words, expression or body language or such expression which leads to a belief or suspicion in the mind of a party that he will not have a fair deal

To determine whether particular alleged facts do constitute a bias does not depend on the perception, thinking, conviction or belief of the party

Test is whether a reasonable man apprised of full facts would conclude that there is likelihood of bias or reasonable suspicion of bias.

Views formed by a particular Judge in a particular case depend upon circumstances of each case and the assistance rendered by the counsel.

Bias Mere fact that a counsel (elevated later as a Judge) in course of his professional duties, appears against a particular party, does not in any manner, without further proof of anything more personal, indicate his personal bias against that party, particularly when such party happens to be a corporate entity.

An earlier expression on a question of-law does not disqualify a Judge to sit in the Bench subsequently to hear a cause even if the matter is between the same parties.

There being no element of personal bias or prejudice, mere fact that one of the Judges sitting in the Bench hearing the petition under Art. 184(3) of the Constitution of Pakistan challenging the constitutionality of appointment of respondent as Chief Justice was at one stage associated with the case of appointment of respondent in his capacity as Federal Law Secretary, could not debar him (Judge) from hearing the case.

Principles.

Supreme Court would not grant transfer of a case from the file of a Judge of the High Court to another Judge on ground of bias.

Fact that Court had decided a number of interlocutory applications against the party simpliciter was not sufficient to establish that there was real likelihood of his being biased.

Bias in a Judge in judicial parlance may mean when he acts without having regard to sound judicial principles or when he is paralysed of his judicial faculties

Imputing a judge with `bias' is most unreasonable, unless it is proved that he acted one sidedly or in a manner which could not be termed as judicial.

Clear and unequivocal bias.

Bias or prejudice 'on the part of a Judge, not the result of interest or relationship, is not supposed to exist and generally it does not incapacitate or disqualify a Judge to try a case unless the Constitution or Statute so provides.??[Administration of justice].

Notified Officer being disqualified to hear matter on account of his previous bias on account of his having dealt with same matter in capacity of Deputy Settlement Commissioner and being wholly incompetent to decide matter all over again in the capacity of Settlement Commissioner, passing impugned order in flagrant breach of Rule of natural justice and the principle that justice should not only be done but should appear to have been done

Actual bias in such cases, need not be shown to have worked its way and it was enough if in the mind of affected party there could arise a reasonable apprehension of bias

Impugned order was without lawful authority and of no legal effect

Case remanded. to Member, Board of Revenue for entrusting same to another notified officer for disposal

Constitution of Pakistan (1973), Art. 199

Displaced Persons (Land Settlement) Act (XLVII of 1958), S.10

Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), Ss.2 & 3.

Meeting of the Syndicate of the University which was participated by and presided over by the said Vice-Chancellor tending to approve the tatter's order invalidated the whole proceedings, making out an exceptionally exemplary case of bias.

[ Educational institutions].

Bias being important principle of natural justice, held, would postulate that justice should not only be done but manifestly seem to be done

Member, Board of Revenue ordering registration of criminal case against persons accused of fraudulent transaction in his administrative capacity ought to have refrained himself from hearing case against such persons relating to registration of sale-deed in exercise of his judicial or quasi-judicial function.

[Bias].

Record showing long history of written and repeated objections taken by declarants before Chairman, Federal Land Commission that he was biased against them and of non-disclosure of grounds of assuming jurisdiction and that he should not hear and determine matter

Instances of bias noted not rebutted by Chairman, Federal Land Commission

Speeches delivered by Chairman, Federal Land Commission as Federal Minister and Provincial Chairman of ruling political party clearly contained hatred against particular persons including declarants

Such speeches were extremely super-charged with emotion of hatred against inter alia the declarants-Amongst various forms of bias and variety of circumstances which may produce bias, held, was the inclination of decision of matter towards parties before him

Bias in proceedings by Federal Land Commission having been established against land-owners, entire proceedings initiated and conducted by Chairman, Federal Land Commission, the

Bias-Working of, in human mind-imperceptible and destructive of impartial thinking-Biased Enquiry Officer likely to distort a sentence and inject into record of case his biased feeling in a manner not apparent to worker present at inquiry or to reviewing authority.

Decision of an authority cannot be quashed on ground of there being a probability of bias-Decision-maker may be disqualified only if he prejudices merits of a case-Frequent combination in administrative process of adjudicative function may be a cause of preinvolvement of decision-maker-Policy (of Government) cannot be regarded as constituting bias-Accepting bias as a rule would amount to extending judicial recognition to fact that most of decision-makers lack integrity-Concept of bias-Held, repugnant to Islamic law God enjoins upon Judges not to let their passions lead them astray or sway them from path of justice set down for them.

Judge-Disqualification to sit in judgment=Case having been heard by all Judges of Court, a unanimous judgment of Full Court being delivered after hearing lengthy arguments from both sides and setting . forth detailed reasons for validating imposition of Martial Law .on doctrine of necessity, allegation of Judge objected against having personally given certain powers to Chief Martial, Law Administrator, held, a deliberately misleading statement Chief Martial Law Administrator, in active control of Government machinery, held further, for first time declared in such case- to be subject to power, of judicial review vesting in superior Courts, under existing Constitution Petitioner's inferences aboux such judgment, if accepted, whole Court, held, would stand disqualified from hearing present appeal.-[Judge].

Bias in Judge-History underlying growth of doctrine of bias operating as disqualification-Actions of judicial officers raising inference of bias-Mere suspicion of bias, even though reasonable, would never render a decision void-Judge, with desire to do justice, asking a party about availability or otherwise of a particular piece of evidence-Imputing bias to such Judge on such account most unreasonable-Factors to be taken into consideration.

Immunity of Courts Freedom of speech-Courts though to be protected against disgruntled and unscrupulous litigants yet Judges not absolutely immune from till criticism nor entitled to silence truth in order to preserve public confidence in administration of justice

Plea of bias temporarily worded and pressed in respectful manner and without any publicity-Held, does not amount to contempt of Court.-[Contempt of Court].

Definition-Judge's interventions and lack of evenhandedness-Does not ipso facto result in judgment becoming nullity-Decision by Judge inevitable decision and retrial to result in its confirmation Held, no purpose would be served by a retrial in such case.

Bias-Bias in Inquiry Officer in order to affect proceedings-Must offend against principles of natural justice.

Bias -Mere assertion of bias-Never sufficient to disqualify a Judge in hearing a cause or matter-Despite "rule of disqualification" a Judge or officer exercising judicial functions may act in proceedings wherein he is disqualified by reason of interest, relationship or the like, if his jurisdiction to hear the matter is exclusive and there is no legal substitute for purpose.

To be specifically proved by record.

Judge or Tribunal having pecuniary interest (however negligible) in subject-matter of litigation-Disqualified from adjudicating matter irrespective of proof of bias from any quarter-Bias alleged, however, on basis of relationship-Party alleging relation ship to prove same to be such as to afford reasonable basis for holding likelihood of bias-Failure of party to raise objection at proper stage-Allegation of bias loses much of its force in such circumstance.

(b) Bias-Observation of judge in course of hearing that he knew one of the witnesses who had given evidence at trial-No ground by itself for holding his judgment to be vitiated by bias.

Court forming pre-conceived notions and theories at fairly early stage of trial-Cross-examining defence witnesses at length and putting questions which could only be put by counsel 'on instructions-Judging evidence in light of conclusions formed by itself, rather than drawing conclusions from evidence-Trial, held, vitiated-Re-trial ordered.

Bias Bias-Allegation against Civil Judge that he had been won over by other party-Denied by Civil Judge in his report submitted to High Court on application for transfer of case-Civil Judge while submitting report asking for action being taken against applicant "in fairness to me and to uphold dignity of Court"Civil Judge's request no indication of bias-Transfer application rejected-Civil Procedure Code (V of 1908), S. 24.

Arbitrator not to decide dispute where there is probability of his being biased in case.